Petition for Writ of Certiorari — Elkland Leather Co. v. National Labor Relations Board

INDEX.

Opinions below

Jurisdiction

Questions presented

Statute involved

Statement

Specification of errors to be urged

Reasons for granting the writ

Conclusion

Appendix

CITATIONS.

Cases:

Art Metals Const. Co. v. National Labor Relations

Board, (C.C.A. 2) 110 F. (2d) 148

Burlington Dyeing & Finishing Co. v. National Labor

Relations Board, (C.C.A. 4) 104 F. (2d) 736

Continental Oil Co. v. National Labor Relations

Board, (C.C.A. 10) 113 F. (2d) 473

Ford Motor Company v. National Labor Relations

Board, 305 U.S. 364

Ford Motor Company cases, 14 N.L.R.B. 346, 19

N.L.R.B. No. 79, 23 N.L.R.B. No. 28, 23 N.L.R.B.

No. 46

Fort Wayne Corrugated Paper Co. v. National Labor

Relations Board, (C.C.A. 7) 111 F. (2d) 869

Hartsell Mills Co. v. National Labor Relations Board,

(C.C.A. 4) 111 F. (2d) 291

Interstate Circuit v. United States, 304 U.S. 55

Jefferson Electric Company v. National Labor Rela-

tions Board, (C.C.A. 7) 102 F. (2d) 949

Kansas City Power & Light Co. v. National Labor

Relations Board, (C.C.A. 8) 111 F. (2d) 340

Midland Steel Products Co. v. National Labor Rela-

tions Board, (C.C.A. 6) 113 F. (2d) 300

Mooresville Cotton Mills v. National Labor Relations

Board, (C.C.A. 4) 110 F. (2d) 179

teu * (cic se ak Sha

ee

National Laber Relations Board v. A. S. Abell Co.,

(C.C.A. 4) 97 F. (2d) 951

National Labor Relations Board v. Eagle Mfg. Co.,

(C.C.A. 4) 99 F. (2d) 930

National Labor Relations Board v. Express Publish-

ing Co., (petition for certiorari) U.S. Supreme

Court, No. 442, October Term, 1940

National Labor Relations Board v. Ford Motor Com-

pany, (C.C.A. 6) decided Oct. 8, 1940

National Labor Relations Board v. The Falk Corp.,

308 U.S. 453

National Labor Relations Board v. Louisville Refin-

10n.

10n.

ing Co., (C.C.A. 6) 102 F. (2d) 678 11

National Labor Relations Board v. Nebel Knitting

Co., (C.C.A. 4) 103 F. (2d) 594 10n.

National Labor Relations Board v. Pacific Greyhound

Lines, (C.C.A. 9) 106 F. (2d) 867 16n.

National Labor Relations Board v. Somerset Shoe

Co., (C.C.A. 1) 111 F. (2d) 681 11n.

National Labor Relations Board v. Thompson Prod-

ucts, (C.C.A. 6) 97 F. (2d) 18 14, 16, 17n.

National Labor Relations Board v. Union Pacific

Stages, (C.C.A. 9) 99 F. (2d) 153 12

National Labor Relations Board v. Yale & Towne

Mfg. Co., (C.C.A. 2) decided Aug. 16, 1940 11n.

Swift & Co. v. National Labor Relations Board,

(C.C.A. 10) 106 F. (2d) 87 17n.

United States v. Delaware & Hudson Co., 213 U.S.

366 14

Virginia Ferry Corp. v. National Labor Relations

Board, (C.C.A. 4) 101 F. (2d) 103 10n.

Western Union Tel. Co. v. National Labor Relations

Board, (C.C.A. 2) decided Aug. 9, 1940 16

- Statute:

National Labor Relations Act (Act of July 5, 1935,

c. 372; 49 Stat. 449; U.S. Code, Supp. IV, Title 29,

sec. 151 et seq.) 2 et seq.

In the

Supreme Court of the United States.

Octoser Term, 1940.

ELKLAND LEATHER COMPANY, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT.

The petitioner, Elkland Leather Company, Inc., prays

that a writ of certiorari issue to review the decree of the

United States Circuit Court of Appeals for the Third Cir-

cuit, entered on September 10, 1940, enforcing in full the

order of the National Labor Relations Board issued against

petitioner July 23, 1938.

Opinions BELow.

The opinion of the Circuit Court of Appeals (R. 3762),

filed August 21, 1940, is not yet reported. The decision and

order of the National Labor Relations Board (R. 3667) are

reported in 8 N.L.R.B. 519.

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5

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JURISDICTION.

The decree of the Cireuit Court of Appeals was entered

September 10, 1940 (R. 3769).

The jurisdiction of this Court is invoked under Section

240(a) of the Judicial Code as amended by the Act of Feb-

ruary 13, 1925 (U.S. Code, Title 28, see. 347), and Sec-

tion 10(e) of the National Labor Relations Act (Act of July

5, 1935, ¢c. 372, see. 10; 49 Stat. 453; U.S. Code, Supp. IV,

Title 29, see. 160(e)).

QvuESTIONS PRESENTED.

1. Does the National Labor Relations Act authorize an

order of the Board compelling an emplover to post a notice

that he will cease and desist from committing specified un-

fair labor practices?

2. May Section 8(1) of the National Labor Relations Act

properly be construed, consistently with the First Amend-

ment to the Constitution, to embrace as an unfair labor prac-

tice an employer’s written statement of his open-shop

policy?

3. Must the findings of fact which the Board is required

to state by Section 10(c) of the National Labor Relations

Act conform to accepted judicial standards applicable to

findings of fact?

SratutTe INVOLVED.

The pertinent provisions of the National Labor Relations

Act (Act of July 5, 1935, ¢. 372; 49 Stat. 449; U.S. Code,

Supp. IV, Title 29, sec. 151 et seg.) are set forth in the

Appendix, mfra, pp. 19 and 20.

Sat AE a ABN ee EE SS ET ESSE TET OE a TN TIO PTE ET NO Iae BY oc Ea ene ieee eae

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3

STATEMENT.

Following a charge by Local 37, National Leather Work-

ers’ Association, filed July 20, 1937 (R. 8-10), the Board

issued its complaint on August 21, 1937 (R. 1-7), and the

usual procedural steps ensued, including notice of hearing

(R. 11), amended complaint (R. 33-43), answer (R. 16-32),

amended answer (R. 44-67), hearing (R. 79-3436), inter-

vention of the Elkland Leather Workers Association, Inc.

(R. 81-82), an intermediate report (R. 3470-3528), excep-

tions thereto (R. 3536-3652), and the submission of briefs

(R. 3666). The amended complaint alleged in substance that

the petitioner had engaged in unfair labor practices within

the meaning of Section 8(1), (2), (3) and (5) of the Act

(R. 33-43). The answer and amended answer denied the

alleged unfair labor practices and set forth various matters

in defense (R. 16-32, 44-67). On July 23, 1938, the Board

rendered its decision and order (R. 3667-3726).

No question of fact is raised in this petition. The de-

cision and order of the Board may be summarized as

follows:

The petitioner is engaged in the business! of tanning

hides for sole leather in Elkland, Pennsylvania, a borough

with a population of about three thousand (R. 3673-3676).

In June, 1937, the petitioner employed 944 production em-

ployees and was practically the town’s only industry (R.

3573-3676). The petitioner owned 125 houses, which it

rented to employees (R. 3676). One of petitioner’s stock-

holders controlled a general store and two of petitioner’s

officers owned the local electrie company (R. 3676). The

local bank carried a substantial account of petitioner; the

publisher of the local newspaper handled 90% of petition-

er’s job printing; the local tax collector collected employee

2 near

‘ Petitioner stipulated that its business brings it within the juris-

diction of the Board under the Act (R. 3760).

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4

taxes and bills owed by employees to merchants through pe-

titioner; petitioner’s office manager was a member of the

borough council; one of petitioner’s foremen was burgess

and chief of police; and another foreman was president of

the school board (R. 3677).

Organizational activities among petitioner’s employees

began early in May, 1937, the first union organizer arriving

in Elkland May 24 (R. 3678). In April of 1937 Superin-

tendent Prindle had warned the foremen not to interfere

with organizational activities (R. 3678). About May 25

petitioner received a large order for unfinished leather,

necessitating the lay-off of four rollers whose work is on

finished leather (R. 3703-3704). Two of these were found

to have been discriminatorily laid off (R. 3705).2 About

June 15 Local 37 of the union was formally organized and it

claimed to have 461 members at this time (R. 3679).

In May or June, 1937, petitioner attached to the pay

checks of the employees printed statements reading as

follows (R. 3678-3679) :

‘‘You are under no obligation to join any union and

cannot be forced to do so as this tannery will always

operate as an open shop.

‘‘This company will deal individually with any em-

ployee that wishes to do so at any time.

‘¢Muxianp LeatTHer Co., Inc.”’

This statement was held to be designed to discourage or-

ganizational efforts (R. 3691).

About June 16 several non-supervisory employees circu-

lated for signature in the plant for several days, during

working hours but on their own time, papers headed: ‘‘We,

the undersigners, prefer a local to a national union’’ (R.

2 This finding was contrary to that of the Trial Examiner on this

point (R. 3514, 3516).

4)

3680). Several foremen were aware of the circulation of

the papers. One foreman and one assistant foreman signed

one of the papers (R. 3681). Another foreman and two

assistant foremen each made a remark to an employee in

support of the petition (R. 3681-3682). Six hundred signa-

tures were procured (R. 3682). In addition, two foremen

each made a remark suggesting the formation of an inside

organization (R. 3683).

The first processes in tanning leather are carried out in

what is known as the beam house (R. 3674). The first step

in the process is the soak (R. 3674). During the first four-

teen days after the hides are placed in the soak they are in

a highly perishable condition and subject to rapid deterio-

ration in the absence of normal attention (R. 3674). They

are not completely preserved until after the twenty-eighth

day (R. 3674). A stoppage of the soak occurred on June

18 (R. 3684-3685). The Board believed that this was moti-

vated by a desire by the petitioner to foment anti-union

activities in Elkland (R. 3692), contrary to the petitioner’s

contention that the reason was fear of a strike that would

damage the hides in process (R. 3692). Stoppage of the

soak resulted in the gradual shut-down of the beam house

and the consequent lay-off of 160 men in this department

(R. 3685). The Board found that two of these men were

discriminated against (R. 3709-3711). In order to permit

the transfer of married men from the beam house to the

shipping department, thirteen single men were laid off in

the shipping department on June 19 (R. 3706). The Board

found that one of these men was discriminated against *

(R. 3706-3709).

Five events occurred, participated in by petitioner’s non-

supervisory employees and townspeople, which were held to

3 The finding of the Board that the three men in question (two

in the beam house and one in the shipping department) had been

discriminated against was contrary to the finding made by the Trial

Examiner who had heard the evidence (R. 3514, 3515, 3516).

OBI L ESR DE ELGG hel PAE AD RAAT AIR Wth Da tte aeh!

constitute an anti-union campaign brought about and stimu-

lated by petitioner * (R. 3683-3688, 3691, 3693).

On the morning of June 26 a union organizer telephoned

Superintendent Prindle to arrange for a conference for

collective bargaining, following a vote of the union, June 29,

to present demands the following day, and, in the event of

a refusal to confer, to strike at 2 p.m. (R. 3688). Prindle

informed the organizer he had to go out of town, and it was

agreed to let the matter stand until 4 p.m. (R. 3688). At

about 11 a.m. the organizer received a call that employees in

the cut-sole department had been laid off ° (R. 3688). Be-

lieving petitioner was acting in bad faith, he gave instruc-

tions to have the demands presented to Prindle, and if

Prindle would not consent to a conference, to eall the strike

4 These were:

(1) the drafting, printing and mailing by the editor of the local

newspaper (June 17-19) of a lengthy anti-C1O statement which

was signed by 53 persons, including the leading business and pro-

fessional men (R. 3683), and which contained the sentence: ‘‘ And

from a reliable source it is understood that the tannery will shut

down before the demands of the CIO will be aecepted’’ (R. 3684) ;

(2) advice to union organizers to leave town to avoid trouble

by a group of men, including one of petitioner’s time keepers, on

June 22 (R. 3685), after which the organizers left town in their

automobile, followed by about 20 other automobiles (R. 3686) ;

(3) the meeting of June 24 by a group of non-supervisory em-

ployees who had circulated the local preference paper, at which

meeting a lengthy p*tition directed to petitioner was drawn up an-

nouncing the formation of an association and demanding an increase

in the soak (R. 3686, 3687) ;

(4) the printing and free notorization of CIO withdrawal forms

by the borough tax collector (R. 3687, 3688) ;

(5) the meeting of June 27, a second ‘‘restore the soak’’ meeting

(R. 3689).

5 Because of surplus stock on hand and a decline in the shoe mar-

ket, 23 employees in the eut-sole department were laid off on June

5, 15 more on June 19 and the remaining 22 on June 26 (R. 3715).

There was no discrimination in any of these lay-offs (R. 3715). On

June 28 operations in the department were resumed without dis-

crimination (R. 3715).

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(R. 3689). The demands were left in a sealed envelope with

Prindle’s secretary at 12.30 p.m., during his absence (R.

3689), and as prearranged the men walked out on strike at

2 p.m. (R. 3689). Prindle telephoned the organizer at 4 p.m.

as agreed (R. 3689). The strike was found by the Board

to have been called because no other course remained open

to the union in the face of petitioner’s anti-union conduct

(R. 8720). On July 6 five striking employees threw stones

at automobiles of employees on their way to the plant and

were later convicted of rioting ® (R. 3721, 3744-3751), of-

fenses which the Board did not consider of sufficient gravity

to warrant their exclusion from reinstatement (R. 3721).

On June 29 Williams, the local attorney, representing the

PERT OE

‘restore the soak’’ group, urged Prindle to increase the

soak in view of the fact 650 employees had signed the peti-

tion (R. 3690). Prindle, three days before, had refused a

similar request on the grounds he would do nothing until he

consulted company officials in Boston (R. 3690). On orders

from his superiors Prindle partially resumed the soak on

June 30 (R. 3690, 3691), which was gradually increased

thereafter (R. 3691).

As a result of negotiations carried on through the efforts

of Federal and State Conciliators, the union and petitioner

entered into a strike settlement agreement on July 10, pro- x

viding for the termination of the strike and the return of BS

strikers except those who had engaged in violence, as work

progressed through the factory (R. 3693, 3694).

This agreement was read to the local July 11 and the

strike called off (R. 3694). A misunderstanding as to the

process of reinstatement occurred when 200 strikers as-

sembled the next morning (July 12) at the company’s plant

(R. 3695). A committee representing the union conferred

with representatives of the petitioner relative to the man-

ner of reinstatement of the strikers which resulted in the

° These five men were fined $50 each (R. 3744-3751).

{AAR RL ROIS INE hte 10 BTR IE ade Cale Ba aR

misunderstanding referred to (R. 3695). One of the repre-

sentatives of petitioner stated that he would communicate

with the conciliators (R. 3695). The union committee re-

ported the result of the conference to the men, who voted

to resume the strike (R. 3696). The Board found that the

calling off of the strike for one day was pursuant to the

strike settlement agreement in which the minds of the par-

ties never met (R. 3720). Petitioner sent letters to the

strikers offering them reinstatement, hired no new employ-

ees and negotiated with the union further in an unsuccessful

attempt to settle the strike (R. 3696). The Board held peti-

tioner did not engage in the alleged unfair labor practice of

failing to reinstate and employ the strikers on July 12 (R.

3698).

Meanwhile, on July 2, a group of non-supervisory em-

ployees who had been connected with the ‘‘restore the soak”’

group (R. 3686) consulted Attorney Williams in regard to

the establishment of a labor organization (R. 3698). The

Elkland Leather Workers Association, Inc., was formed,

600 employees having signed the articles of incorporation

by July 7 (R. 3699). A demand for collective bargaining

was made on July 8 (R. 3699) and a collective bargain-

ing agreement was entered into between petitioner and the

Association on July 13 (R. 3699). There was no direct par-

ticipation by the petitioner in the organization and adminis-

tration of the Association as incorporated other than mem-

bership therein by foremen (R. 3702), non-active member-

ship by foremen being provided for in the by-laws (R. 3700).

The Board concluded that the statement of open-shop

policy, the acquiescence and support of foremen in the cir-

culation of the local preference paper and the stoppage of

the soak constituted interference, restraint and coercion

within the meaning of Section 8(1) of the Act (R. 3691-

3693). The Board further concluded that petitioner had

dominated and interfered with the Association within the

9

meaning of Section 8(2) of the Act (R. 3702), and had dis-

criminated against five employees within the meaning of

Section 8(3) of the Act (R. 3722). The Board held, how-

ever, that the petitioner had not discriminated against 23

other employees alleged to have been discriminated against

(R. 3722, 3723). Finding that the union did not represent

a majority of the employees (R. 3717-3718), the Board held

that petitioner had not violated Section 8(5) of the Act

(R. 3718).

The Board ordered petitioner to cease and desist from

committing violations of Section 8(1), (2) and (3) of the

Act and from giving effect to its contract with the Associa-

tion (R. 3723, 3724). As affirmative action the Board or-

dered petitioner (1) to withdraw all recognition from and

completely disestablish the Association as a collective bar-

gaining representative; (2) to reinstate and make whole

the five employees found to have been discriminated

against; (3) to reinstate the 230 strikers; and (4) to post

notices in conspicuous places in its plant that petitioner will

cease and desist in the manner aforesaid, that petitioner

completely disestablishes the Association, and that the

agreement with it is void (R. 3724, 3725).

The Board filed a petition for the enforcement of its order

in the Cireuit Court of Appeals for the Third Circuit on

July 20, 1939 (R. 3733-3738). Petitioner filed its answer

on August 22, 1939, stating that the Board’s conclusion

and order were not based on findings of fact and that

the Board’s order was contrary to the provisions of the

Act and beyond the purview of a proper interpretation of

the Act (R. 3739-3741). On August 21, 1940, the court filed

its opinion directing the entry of a decree enforcing in full

the order of the Board (R. 3762). This decree was entered

September 10, 1940 (R. 3769-3772).

OARS ENERO LHI ID ESET NBII LS Y REDE Et ESS EET SSSI ROERIN SR AY OS TED SENN GIS OE RT MO

PEN PARE OA ELL, DRIER ALTRI S EES ES

LAA AEA IRA DX CBA A OE DA TRL RCT a

SpEcIFICATION OF Errors TO BE URGED.

The Cireuit Court of Appeals for the Third Circuit

erred—

(1) In holding that the Act authorizes the Board to issue

an order compelling petitioner to post a notice that it will

cease and desist from committing unfair labor practices

found by the Board to have been committed in violation of

the National Labor Relations Act.

(2) In holding that the issuance of a statement of open-

shop policy was an unfair labor practice within the meaning

of Section 8(1) of the Act.

(3) In not holding that the Board had failed to comply

with its duty under Section 10(¢) of the Act to state its find-

ings of fact.

Reasons For GRANTING THE WRIT.

1. The decision of the court below affirming the order of

the National Labor Relations Board requiring the petitioner

to post a notice that it will cease and desist from commit-

ting certain specified unfair labor practices is in direct con-

flict with the decision of the Circuit Court of Appeals for the

Second Cireuit in Art Metals Const. Co. v. National Labor

Relations Board, 110 F. (2d) 148, and with the decision of

the Circuit Court of Appeals for the Fourth Cireuit in

Hartsell Mills Co. v. National Labor Relations Board, 111

F. (2d) 291,7 and of the Cireuit Court of Appeals for the

7 Other decisions by the Fourth Cireuit Court of Appeals to the

same effect include National Labor Relations Board v. A. S. Abell

Co., 97 F. (2d) 951, 958, 959; National Labor Relations Board Vv.

Eagle Mfg. Co., 99 F. (2d) 930, 932; Virginia Ferry Corp. V.

National Labor Relations Board, 101 F. (2d) 103, 106; National

Labor Relations Board v. Nebel Knitting Co., 103 F. (2d) 594, 595;

Burlington Dyeing & Finishing Co. v. National Labor Relations

Board, 104 F. (2d) 736, 739; Mooresville Cotton Mills v. National

Labor Relations Board, 110 F. (2d) 179, 184.

TORS Nearer eae

ETO ATCA WAS yc oR

11

Sixth Cireuit in National Labor Relations Board v. Lowis-

ville Refining Co., 102 F. (2d) 678, 681.

This question, and the cases which have considered it, are

presented at length in the opinion of Judge Learned Hand

in Art Metals Const. Co. vy. National Labor Relations Board,

(C.C.A. 2) 110 F. (2d) 148, 151. Judge Hand there shows

the conflict of authorities on this question, and also states his

view that the point was not passed upon by this Court in

National Labor Relations Board v. The Falk Corp., 308 U.S.

453, saying, at page 151:

‘‘From the way in which the case came up [to the Su-

preme Court] it would seem that the court could not

have had this point before it, and, whether it did or not,

certainly the opinion does not suggest that it meant to

pass upon it. We regard the question as open and we

think that the Fourth Circuit is right.’’

The court below cited the Falk case in support of its con-

clusion on this point (see R. 3768). Thus the conflict in

interpretation of this Court’s decision in the Falk case is

clear. It seems unnecessary to elaborate further here the

conflict between the various Circuit Courts of Appeals on

this question, since the point is so fully stated in the opin-

ion of Judge Hand referred to above. The conflict is also

disclosed in the full discussion set forth in the opinion of

Judge Parker in the Hartsell Mills case, 111 F. (2d) 291,

293-294.§

8 Cases decided since the Art Metals case adopting a contrary

position are: Fort Wayne Corrugated Paper Co. v. National Labor

Relations Board, (C.C.A. 7) 111 F. (2d) 869, 873; National Labor

Relations Board v. Somerset Shoe Co., (C.C.A. 1) 111 F. (2d) 681,

691; and Continental Oil Co. v. National Labor Relations Board,

(C.C.A. 10) 113 F. (2d) 473, 485. The Second Cireuit has since re-

affirmed its view in National Labor Relations Board v. Yale & Towne

Mfg. Co., decided Aug. 16, 1940. See also Kansas City Power & Light

Co. v. National Labor Relations Board, (C.C.A. 8) 111 F. (2d)

340, 355-357.

SAR Ri, KOSS te Ae ake, ee i ie 08 RINE MEDIES EEE LENE PREG APO LASS its es MER tA HP :

12

The conflict on this point is expressly recognized by the

Board itself in its petition to this Court for certiorari in

National Labor Relations Board v. Express Publishing Co.,

No. 442, October Term, 1940, where it says (p. 10) that ‘*the

circuit courts of appeals have differed concerning the form

of notice which may be required.’’ The question in this case

is not of the right of the Board to require that some notice be

posted, but rather of the power of the Board to compel the

petitioner to post a notice which in substance amounts to an

acknowledgment that it has committed unfair labor prac-

tices which it denies that it has committed. The conflict with

respect to notices of such tenor is expressly recognized in

the Board’s petition herein referred to.®

2. The decision of the court below affirming the deter-

mination of the Board that the petitioner committed an un-

fair labor practice by stating to its employees its open-shop

policy is in conflict with the decision of the Circuit Court of

Appeals for the Ninth Circuit in National Labor Relations

Board v. Union Pacific Stages, 99 F. (2d) 153, and with the

decisions of the Circuit Court of Appeals for the Sixth Cir-

cuit in Midland Steel Products Co. v. National Labor Rela-

tions Board, 113 F. (2d) 800, and National Labor Relations

Board v. Ford Motor Company, (C.C.A. 6) decided Oct. 8,

1940.

In the Union Pacific Stages case the court said (p. 163) :

‘‘The evidence shows that the Company was con-

ducting its business on the open shop basis; in doing so

® It will be no answer for the Board to say that this matter is no

longer one of public importance since it does not now require no-

tices of the sort involved in this case. The fact remains that it

did order such a notice here, that that order was sustained by the

court below, and the decision of the court below on that point is in

conflict with decisions in several other circuits. The matter will not

cease to be of importance unless the Board will apply its changed

policy to cases like the present one.

13

the respondent was within its legal rights. If the talk

of Walsh its president, amounted to no more than a dec-

laration of that policy it did not violate the Act.’’

Later in the same opinion the court said (pp. 178-179) :

‘It is difficult to think that Congress intended to for-

bid an employer from expressing a general opinion that

an employee would find it more to his advantage not to

belong to a union. Had Congress attempted so to do it

would be in violation of the First Amendment, U.S.C.A.

Const. Amend. 1. The right of workers to organize

freely must be conceded. It is a natural right of equal

rank with the great right of free speech, protected by

the Constitution. But the right of the workers to or-

ganize is not destroyed by expressions of opinion of the

employer or employee, such as referred to above.’’

In the Midland Steel case a statement by an employer

assumed by the court to be an appeal to individual bargain-

ing was held not forbidden by the Act (113 F. (2d) 800,

803-804). The Ford Motor Company case contains a full

discussion of the interpretation of the Act as applied to

employer statements in the light of the First Amendment.

In the present case the court below says (R. 3766) :

‘*The Leather Company argues that its statement of

open-shop policy delivered with the pay checks was not

unfair. We cannot agree. On the contrary we think

that this statement, issued on the first indication of

Union activity, ‘was manifestly designed to discourage

organizational efforts.’ ’’

The court below thus holds in substance that a statement

of open-shop policy, unaccompanied by inducements or

threats, is an unfair labor practice, directly in conflict with

PPL RB PRT SEE F ANY BO Ie

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14

the conclusion of the Circuit Courts of Appeals for the Sixth

and Ninth Circuits. In reaching this result, the court below

did not even refer to the First Amendment, which the Sixth

and Ninth Circuits believed of equal importance with the

right of workers to organize freely. It should not be over-

looked that the First Amendment is important here, not

merely because of its own direct force, but because of

the clear rule that the statute on which the Board’s power

alone rests should be construed in such a way as to avoid

any serious constitutional question. Cf. United States v.

Delaware & Hudson Co., 213 U.S. 366, 407-408.

This question is an important one constantly arising in

the administration of the National Labor Relations Act."°

This Court should relieve the confusion now existing in the

Cireuit Courts of Appeals by establishing the standards

which control the question of the extent to which an em-

ployer may properly go in making communications to his

employees.

3. The decision below is in its effect in conflict with the

decision of the Circuit Court of Appeals for the Sixth Cir-

cuit in National Labor Relations Board v. Thompson Prod-

ucts, 97 F. (2d) 13.

In the Thompson Products case, the court said (p. 13) :

‘The finding of facts of the Board is not in the proper

form. It has mingled therein statements of witnesses

and expressions of opinion. No reference should be

made to the evidence nor any discussion injected into

the ultimate findings of facts upon which the Board

rests its order. There should be a clean-cut statement

10 See, for example, the Ford Motor Company cases, 14 N.L.R.B.

346, 19 N.L.R.B. No. 79, 23 N.L.R.B. No. 28, 23 N.L.R.B. No, 46,

and Jefferson Electric Company v. National Labor Relations Board,

(C.C.A. 7) 102 F. (2d) 949, 956.

bE Sey EN 7

Sore a aD

eae Bo

ve

15 :

of the ultimate facts without incorporating therein the €

evidence or the reasoning by which the Board arrived é

at its finding. If the Board desires to discuss or empha- z

size any part of the evidence or give its reason for its :

findings, it should do so in the form of an opinion or &

memorandum which should not be incorporated into, or

connected with, the special finding of facts.’’

Section 10(¢) of the Act provides that where the Board

concludes that there has heen an unfair labor practice, ‘‘then

the Board shall state its findings of fact.’’ The Board is es

thus specifically directed to make ‘‘findings of fact.’? In

the present case, this requirement of the statute has in no

fair sense been met.'! The Board’s decision is rather ‘‘an

argumentative narrative,’ to use the words applied by

11 A portion of the decision is, indeed, entitled ‘*Findings of

Fact’’ (R. 3673-3721). Analyzing this, it is found to consist of 566

sentences, of which 20 are footnote statements, 17 are quoted ver-

batim from exhibits, and 13 are explanatory of the form of the

Board’s order. This leaves a total of 516 sentences which may rea-

sonably be taken as statements meant by the Board to be findings

of fact. Of these 516, however, 114 are recitals of specific items of

evidence, 13 are general recitals of evidence, 5 are statements of the

pleadings, 8 are merely repetitious, and 52 contain only statements

of opinion, belief, contentions, arguments, rulings, reasoning and

comments. This group totals 192 or 37% of the total so-ealled find-

ings of fact.

Consider the following statements selected at random: ‘‘We

rather believe ...’’ (R. 3692); ‘‘It is entirely possible that

...'’ (R. 3717); “... it is certainly unlikely that...” (R.

3701) ; ‘‘It has been our experience that . . .”’ (R. 3691) ; ‘‘ More-

over, it is odd... .’’ (R. 3705); ‘‘It was apparently the theory

of counsel . . .’’ (R. 3696); ‘‘The evidence . .. is not entirely

convincing, and it may be that .. . ’’ (R. 3714) ; ‘‘Even assuming

..’ (R. 3692) ; ‘‘Strike action was evidently thought necessary

...’’ (R. 3719) ; ‘‘The Board has on former oceasions considered

...’ (R. 3721) ; ‘‘ Although there is no evidence . . . it seems to

us that some consideration would normally have been extended

...” (R. 3708-3709).

REO Sat PSI OME ALT 6 DE SOL TIER RD ESI PB DORI BARA NIL WE LTA SERIE LALLA RANI: Ae IT

16

Judge Learned Hand to a similar situation in Western

Union Tel. Co. v. National Labor Relations Board, decided

by the Second Circuit Court of Appeals on August 9, 1940.

This is a matter of real consequence in the fair administra-

tion of the Act. By the terms of Section 10(e) and (f) of

the Act, as applied in the decisions of this Court, the ‘‘find-

ings of fact’’ of the Board, when supported by evidence,

are conclusive. When the Board includes evidentiary mat-

ters, and comment, and opinions, in its so-called ‘‘ findings

of fact,’’ the parties are put at a serious disadvantage,'* and

the task of reviewing courts is greatly increased. In the

interests of the proper administration of the Act and fair-

ness to respondents before the Board, the Board should be

required to prepare proper findings of fact which are con-

fined to the function of findings of fact. The contrast is

great between the findings in the present case and the type

of findings which are habitually prepared by the Board of

Tax Appeals or the Federal Trade Commission. There is

no reason why the same standard should not be maintained

in labor cases as in tax and trade cases.

This question was fully and fairly presented to the court

below in the petitioner’s brief there (pp. 8-12). The court

below, however, chose not to mention the question. Its

decision, nevertheless, sustained the order of the Board.

The effect of the decision below, therefore, is to sustain a

procedure which was defective under the standard recog-

nized by the Sixth Circuit Court of Appeals in the Thomp-

son Products case, quoted above.

12 For example, it has been held that, when a party is cited for

contempt of a decree enforcing a Board order, the decision of the

Board must be examined to define the unfair labor practices covered

by the order. National Labor Relations Board v. Pacific Greyhound

Lines, (C.C.A. 9) 106 F. (2d) 867, 871. Consequently if the find-

ings of fact are not clearly and separately stated, a party may have

serious difficulty in endeavoring to comply with the order of the

court and much fruitless controversy may be engendered.

SNS REN eR: BAY AIA RI AEROS NAGAI

_——

17

The matter is closely analogous to the question decided by

this Court in Interstate Circuit v. United States, 304 U.S.

55. There, this Court held that it is the duty of a District

Court, under former Equity Rule 7014, to make special for-

mal findings of fact. In setting aside the decree of the

lower court there and remanding the case with directions to

make proper findings of fact, this Court said, at page 56:

‘‘The opinion of the court was not a substitute for

the required findings. A discussion of portions of the

evidence and the court’s reasoning in its opinion do not

constitute the special and formal findings by which it is

the duty of the court appropriately and specifically to

determine all the issues which the case presents.”’

This decision under this Court’s rules that lower courts

make proper findings of facts should be equally applicable

to the specific requirement of Section 10(c) of the Act that

the Board shall make findings of fact. This seems to be

clearly recognized in this Court’s opinion in Ford Motor

Company v. National Labor Relations Board, 305 U.S. 364,

where, at page 373, the Interstate Circuit case is cited in an

opinion dealing with the Labor Board.1*

‘8 The conflict between the decision below and that in the Thomp-

son Products case is emphasized by the opinion of the Circuit Court

of Appeals for the Tenth Cireuit in Swift & Co. v. National Labor

Relations Board, 106 F. (2d) 87. The court in that case reached

the same result as the court below here, saying (p. 94): ‘‘It is not

essential that the Board state its findings in formal style...

While it would have been better form for the Board to have set

forth separately a clean-cut statement of the ultimate facts, without

incorporating therein references to evidence or the reasoning by

which the Board arrived at its findings [citing the Thompson Prod-

ucts case], we are of the opinion that the findings here are suffi-

ciently definite to inform the petitioner of the basie facts found by

the Board, upon which it predicated its ultimate conclusions and

decision.’’

Cat at we 3 2 A ILE CK ant TI SN TIRE ask Tag ay OTS RN LL BRI 9 LE MR DN ae NEO

18

ConcLusion.

Wherefore it is respectfully submitted that for the rea-

sons stated the petition for certiorari should be granted.

Respectfully submitted,

JOHN W. MORGAN,

Lynn, Massachusetts,

Attorney for the Petitioner.

LawrENcE M. Kearns,

Joun R. Cant, JR.,

Of Counsel.