Petition for Writ of Certiorari — Knight Morley Corp. v. National Labor Relations Board (No. 1004)

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LisSRARY PILwDH

SUPREME COURT. U. S MAY 1158 |

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Sree atti 3

JOHN T. PEY, cs

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1957

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no... 10.04

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KNIGHT MORLEY CORPORATION,

Petitioner.

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent

a en

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

ce ee

JOHN F. LANGS,

Attorney for the Petitioner,

Knight Morley Corporation,

2508 Guardian Building,

Detroit 26, Michigan.

RICHARD PF. MOLYNEAUX,

Langs, Molyneaux & Armstrong,

O#? Counsel,

2505 Guardian Building,

Detroit 26, Michigan.

INDEX

Page

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ct So sald as fae an bea ee Te eC 8.e.s 3

ea aa dl nay pre ad's's «din ween tt 3

mennone for Grentine the Wit. . i... cnc ccecnccens 15

A. As to the Section 502 Question. ............ 1

B. As to the ‘Unfair Labor Practice Strike”

SSE RES re rg Oy wee ea eee 22

IES SEE TAL Ed CPP O PTT OP EP EEE ET 24

Appendix A (Opinion ef Court of Appeals)........ la

Appendix 2. (Decree and Order of Court of Appeals) — Isa

Appendix C (Statutes Invelved).................. bog

CITATIONS

Cases:

C. G. Conn, Ltd. v. National Labor Relations

rr ee re eae ee aks 16

Home Beneficial Life Insurance Co. v. National

Labor Relations Board, 159 F. 2d 2S0, cert.

SE SS Oe OR Sc nL ae dg oe Ke able 16

International Union, UAW v. Wisconsin Employ-

ment Relations Board, 336 U.S. 245.......... 16

Mastro Piastics Corp. v. National Labor Relations

RN MORE a oe a cewek wade Is

National Labor Relations Board v. American Man-

ufaeturing Company of Texas, 203 F. 2d 212,

reversing Board Decision 98 N. L. ROB, 226... 18

Nation . Labor Relations Board v. Jones & Laugh-

lin Steel Corp., 301 U.S. 1

National Labor Relations Board v. Koller Com-

pany, 220 F. 2d 3......--. cece eres eee: ca

National Labor Relations Board v. Loeal Union

No. 1229, 346 U.S. 464. 2... ce eee eee

National Labor Relations Board v. Mackay Radio

& Telegraph Co., | a a < °F Parie

National Labor Relations Board v, Montgomery

Ward & Co., 157 F. 2d 486. ...........-2000--

National Labor Relations Board v. Rockaway

News Co., 345 U.S. 71

National Labor Relations Board v. Sands Manu-

facturing Co., 306 U.S. 352. .... era ae Pe

National Labor Relations Boz 2d v. Statforc, 206

Pe WO co vce cacd cd cactanexstsceneger sees

eoeaeeeeannaeveneae 26

~~

Statutes:

Labor Management Relations Act—1947, 29 U. ts.

Oe BARS rz ale entvieadé a xy a alee cae

Michigan Statutes Anno., See. 17.56-17,49, Act No.

985 of Michigan Public Acts of 1909, as amend.

‘

ed, Sees. 27-30

a. oa & a @ & te 2:62 6.2 2.2 DS 4 DOM OE ORE

9

J

iN THE

Supreme Court of the United States

—-—>-——-— -

No.

a

KNIGHT MORLEY CORPORATION,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent

ae

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

a os

Knight Morley Corporation, petitioner herein, prays

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

Court of Appeals for the Sixth Cireuit entered in the

above cause on December 18, 1957 (petition for rehearing

denied February 13, 1958) enforcing an order of the Na-

tional Labor Relations Board (heremafte: called the —

‘*Board’’) dated July 12, 1956.

CPINIONS BELOW

The Intermediate Report and Recommended Order of the

Trial Examiner is unreported and is printed in the Joint

Appendix filed in the Court of Appeals at page 430a. The

decision and order of the National Labor Relations Board

is reported at 116 N. L. R. B. 140 (No. 6) and is printed in

the Joint Appendix filed in the Court of Appeals at page

489a. The opinion of the Court of Appeals dated Decem-

ber 18, 1957 on the Board’s petition for enforcement and

the opinion of the Court of Appeals dated February 13,

1958 on the Company’s petition for rehearing are reported

at 251 F. 24 753 and are printed in Appendix A, infra, at

page la.

JURISDICTION

The decree of the Court of Appeals on the Board’s

petition for enforcement of its order was entered on De-

cember 18,1957 (Appendix B, imfra, p. 13a).

A petition for rehearing was duly filed and was denied

on February 13, 1958 (Appendices A and B, tfra, pp. 10a

and 13a). The jurisdiction of this Court is inveked under

981. S. C. 1254 (1) and 29 U.S. C. 160 (e).

QUESTIONS PRESENTED

1. Whether, under Section 502 of the Labor Manage-

ment Relations Act--1947, employees, who stop work and

leave their jobs in violation of instructions but without

striking and in protest against working conaitions which

are not believed by their emplover to be dangerous but

which are believed by the employees to be dangerous but

without informing their employer of that pPehef, may prop-

3

erly be discharged for eause during the term of a collec-

tive bargaining agreement containing a covenant to settle,

without work stoppage or lockout all disputes coneerning

working conditions under the agreed grievance procedure

and also providing that failure to do appointed work or

failure to comply with the agreed grievance procedure shall

be a sufficient cause for discharge.

2. Whether a strike which is called by the union to en-

foree its demand that the employer settle a grievance by

collective bargaining rather than in aceordance with the

grievance and arbitration procedure in effect at the time

it arose and under which it was originally submitted and

handled is an economic strike in which strikers may be

replaced or an unfair labor practice strike in which strikers

may not be replaced.

STATUTES INVOLVED

The relevant provisions of the Labor Management lie-

lations Act, 1947 (29 U.S. C., Sees. 141 ef seq.) are set

forth in Appendix C, infra, page Wa.

STATEMENT

The Facts. In August of 1953 the petitioner, Knight

Morley Corporation, operated a manufacturing plant at

Richmond, Michigan, for the production of rear view mir-

rors, gas caps and similar automobile accessories with ap-

proximately 140 employees working on two shifts’ (R. 4a,

75a, 90a, 439a).* Its production employees were repre-

i The “day” shift worked from 7:00 A. M. to 3:30 P. M. and the

“afternoon” shift from 3:30 P. M. to midnigit (R. 90a).

* We use the designation “R” to refer to the printed joint appendia

in the Court below which is contained in two volumes entitled Joint Ap-

pendix (pages la to 518a) and Supplement to Joint Appendix (pages

519a to 524a).

4

sented by the UAW-CIO under a collective bargaining

agreement which was due to expire on September 25, 1953

and the parties were in the process of negotiating a new

contract (R. 434a). This agreement provided that during

its term there would be no strikes or other work stoppages

by the employees or lock-outs by the employer and that if

any of the employees engaged in a strike or work stop-

page without union authorization it would promptly direct

them to resume work. It further provided that all labor

disputes, including disputes concerning wages, hours, work-

ing conditions and discharges would be handled and settled

through the detailed grievance and arbitration procedure

<et forth in the contract and that pending such settlement

there would be no interference with the company’s in-

structions or orders even if contrary to the terms of the

agreement. It also provided that the company would pro-

vide such safety devices and sanitary and healthful working

conditions as are required by law and that insubordination,

failure to do appointed work and failure to comply with the

agreed grievance procedure would be sufficient cause for

discharge (R. 434a-458a, 520a-524a).

Petitioner’s manufacturieg operations consisted of tool

making, miscellaneous machining, stamping, die easting,

plating, buffing and assembling (R. 75a, 439a). The buff-

ing room occupied an area SO feet by 25 at the northeast

corner of the plant (R. 440a). It was ventilated by a con-

tinuous row of open windows along the 80 foot north wall

and the 25 foot east wall and by two ceiling high openings

into other portions of the plant, one 12 feet wide and the

other 20 feet wide. A 24 inch high speed pedestal fan cir-

culated the air from one end of the room to the other (Rh.

124a, 193a, 239a-240a, 368a, 440a, 4902).

4)

There were thirteen buffing machines in the room and,

in complinnee with Michigan law,’ the buffing wheels, whic

were made of lavers of cotton impregnated with buffing

compounds, were partially enclosed by hoods which were

designed to trap a portion of the lint and dust thrown off

hy the wheels, the heavier particles falling un ‘0 the floor

and the lighter particles being sucked through a system

of piping to a eyclo-wash unit where the dirt is screened

out (R. Sla, 83a-Sda, 12a, 439a). The suction for this

dust exhaust system was created by a centrifugal type

paddle wheel fan situated in a housing on the top of the

roof which had a eapacity of 14,430 cubic feet of air per

minute which, was 60% in excess of the 9,000 cubic foot

capacity required by law for the removal of dust from

the buffing wheel hoods (KR. ota, 439a).

Gn Saturday, August 29, 1953, a new switchhox control-

ling the dust exhaust fan was installed and in the process

the wires were reversed thereby causing the paddle wheel

type exhaust fan to revolve in a reverse direction resulting

in a loss of efficiency the amount of whieh was disputed

but which the Trial Examiner found to be ¢o per cent (R.

40a). The sequence of events which occurred prior to

the diseovery and correction of the reversed wires are set

forth in their chronological order.

On Monday, August 31, the day shift of buffers noticed

an unusual amount of dust and lint in the air and com-

plained to their foreman that the dust exhaust system was

not operating too well (R. 13a, 440a) . They all blamed it

on the fact that the pipes were clogged with dirt as they

had not been cleaned out on Saturday as was eustomary,*

’ Mich. Stat. Anno., Sees. 17.36-17.89; Act No. 285 of the Michigan

Public Acts of 1909, as amended, Secs. 27-30 (R. 35a-37a).

* Saturday is a non-working day and petitioner had been unable to

get any employee to come in to do the job (R. 88a, 441a).

6

and after working their minimum required paytime of two

hours, they were sent home and the system was cleaned

up (R. S7a-88a, 170a-171a, 44la).

When the afternoon shift of buffers reported for work

they learned that the morning shift in their department

had been sent home after working only two hours, and, be-

fore they started to work, their union local president told

Mr. Morley, petitioner's president, that it was too hot a

day to work’ ana that under the contract the afternoon

shift was entitled to go home after working two hours the

came as the morning shift. Mr. Morley replied that the

day shift had not been sent home beeause of the heat but

in order to clean the dust exhaust system which had not

been cleaned cn Saturday, that the buffing department pro-

duction was necessary to keep the plant in operation, and

that there was no reason why the afternoon shift should not

work (R. 131a, 198a-200a, 364a-365a, 41a).

When the seventeen afternoon shift buffers commenced

work at 3:30 P. M. by raking their wheels to level them

off, they immediately noticed that the dust exliaust system

was not operating as efficiently as it should with the re-

<p]t that an excess amount of dust and lint got into the

air and stuck to their skin and clothes which on this un-

usually hot day made them feel disagreeable and uncom-

fortable (109a-112a, 126a, 15a, 142a, 189a, 325a, 558a).

After working approximately an hour they informed the

union steward, Joe Muniz, and the unten president, Harry

Harsch. both of whom were buffers themselves, that they

didn’t want to work under the prevailing conditions and

asked them to see if something couldn’t be done about the

situation (R. 109a, 186a, 234a, 238a, 240a, 323a). The

6 The buffers had noted thermometer readings as high as 98 degrees

on their way to work and testified that a thermometer on one of the

buffing machines registered 110 degrees (118a, 125a, 44la).

‘

complaint that the dust exhaust system wasn’t working as

efficiently as it sheuld was passed on to the management

and, in the absence of the regular maintenance crew who

worked only on the day shift, Mr. Wiswell the shop fore-

man, Mr. Hicks, the plant superintendent, and Mr. Morley,

the company president, all came to the huffing room and

checked the system over as best tney could. They re-

checked the water level in the eyclowash unit, they cheeked

the pipes for dirt, they heard the exhaust fan on the roof

operating normally, they made smoke tests which indi-

eated that there was suction in the pipes, and they were

unable te find anything wrong with the system, which, as

far as they could see, was functioning the same as always

and they so informed the buffers (R. 90a-91a, 234a-256a,

406a-409a, 44a, 449a-450a). When the supervisory group

left the room the buffers discussed the situation and de-

cided that they would not work with the dust exhaust sys-

tem operating as it was and would go home until it was

fixed (R. 87a, 189a, 324a, 445a).

In the past it had been customary to permit the buffing

department employees to stop work on those occasions

when the dust exhaust system had completely stopped run-

ning and to send them home if it couldn't be started (R.

48a. 11da-liga, 189a-190a), but it was also customary for

the men to continue working when there was a dispute re-

carding the efficiency of the system while it was settled

in accordance with the grievance procedure of the labor

contract, and such a grievance had been so handled just

a year previously (R. 37a-38a, 86a).

As the buffers were preparing to leave, Mr. Hicks and

Mr. Morley both informed them that if they stopped work

and went home without permission they would be violat-

ing both the company rule against leaving work without

permission and the union contract and would be discharged

s

(R. O1a-%8a, 18Ta, WSa, 41 1a, 44a). At approximately O21

to 5:30 P.M. without company or union approved the

shut down their machines and walked out in protest against

the inefficient operation of the dust exhaust system and

were discharged (R. 92a, 189a, 191a, 195a, 412a, 44a).

Two or three employees from other departments, all of

which eoatinued to work, were transferred to the buffing

department where they finished out the shift (R. a, 365a-

366a).

The following day the dispute over the efficiency ef Ce

dust exhaust system continued, with the day shift buffers

claiming it was not up to standard and Mr. Morley that it

was operating normally, and no one actually knowing the

answer (R. ida, 174a, 413a). A union committee sug:

gested that a health inspector be ealled to check the sys-

tem to which Mr. Morley agreed and also said he would

check it with an air indicator, but at 3:30 P. M. the erossed

wires in the switchbox were discovered by the maintenance

crew and the dust exhaust system was restored to its full

efficiency (R. YTa, 17a, 415a, 44a). The day shift, with

the conditions of work the same as on the previous day,

continued at work, excepting for one man, and permitted

their grievance to be settled under the procedure pre-

seribed in their labor contract, and their production was

above normal (R. l74a-177a, 367a-069a).

Although four of the eight afternoon shift buffers who

testified at the trial asserted that when they walked out

they believed that the breathing of partientes of dust would

ne* be good for their health CR. 116a, t42a, 18S8a, 3252),

they admittedly did not inform management of this belief

or otherwise inake any claim that they considered the cond)-

tions for work to be unhealthy or dangerous or that they

were refusing to work for this reason (R. 137a, 145a). dv.

toxie materiais were used in the bufling operations (R. 366a, |

~ 9

4$29a). and Mr. Fredericks, the industrial health expert wit-

ness for the Board, testified without contradiction that even

if the dast exhaust system had not been operating at all,

the resulting dust conditions would not place the health of

the buffers in any immediate danger, and would cause

nothing more than minor irritations or discomfort, and that

only prolonged exposure to such conditions over a period

of vears would be detrimental to health of the workers (R.

989a, 292a, 458a).

Mr. Fredericks also testified that exposure of workers to

heat conditions of 110 degrees would subject them to dan-

ger of heat disease Within a matter of one to three hours

(R. 296a-306a) and thet if the petitioner's dust exhaust

system had been operating at full efficiency it would have

had the incidental effect of drawing air into the buffing

room through any openings (R. 278a) and, assuming that it

would bring in 13,500 eubie feet per minute of 96 degree

outdoor air the temperature in the buffing room would not

have been above JOO degrees, hut that if there were large

openings into other portions of the plant in which were

located hot plating tanks and die cast furnaces, then his

answer would be different and he could not forecast the

result, but that air drawn from the plating room inte which

the buffing room opened could reasorably be expected to

increase its temperature rather than decrease it (R. 507a,

3l2a-31 fa).

Mr. Fredericks was not informed that, during the hour

and three quarters that the Luffers worked on the after-

noon shift on August 31, 1953), they admittedly were at

liberty to and did go outdoers to refresh themselves (R.

327a, B88a-339a), nor was he informed, as testified by Mr.

Morley without contradiction, that during the afternoon

of August 31 the temperature both inside and outside the

plant had noticeably decreased and at the time of the walk-

10

out the temperature inside the plant including the buffing

room had fallen 18 to 20 degrees (R. 359a, 405a). The offi-

eial weather bureau report showed a similar drop during

the same period of time at the Detroit City Airport thirty

miles southeast of Richmond (R. 361a, 456a).

The buffers not only admittedly did not inform manage-

ment that they considered the conditions for work to be

unhealthy or dangerous because of the heat in the buffing

room or that they were refusing to work for this reason (R.

137a, 145a), but did not even claim at the trial that they

considered the heat in the buffing room to be unhealthy or

dangerous, their sole claim at the trial being that at some

time after 3:30 P. M. the temperature in the buffing room

reached 110 degrees (R. lisa) and that this together with

the dust and lint made them onecmfortable (R. 189a).

There was no evidence offered as to whether any of the

seventeen discharged buffers were or were not members of

the union, with the exception of Mr. Harsch, the union

president, and Mr. Muniz, a union steward (R. 183a, 235a),

nor did anyone claim or assert that Mr. Morley or any of

his supervisory personnel had ever evidenced any anti-

union animus.

The discharge of the buffers was processed by the union

and the company through the first four steps of the griev-

ance procedure contained in the labor contract during which

the union rejected the eompany’s offer to reinstate the

buffers without the back pay demanded by the union (R.

M1a, 264a-263a). On September Sa formal written griev-

anee was filed by the union demanding the reinstatement

of all the buffers with back pay, which was rejected by the

company on the ground that the buffers were properly dis-

charged under the contract for failure to do appointed work

and failure to comply with agreed grievance procedure CR.

49a-D0a, 208a, Ziga-214a). The unin did not elect to sub.

» ale tate

Li

mit the matter to arbitration as provided in Step 5 of the

erievanece procedure (R. 219a, 258a-259a), but after the

labor contract expired on September 25 demanded that the

company settle the buffer grievance to the satisfaction of

the union by collective bargaining or they would strike the

plant (R. 249a). The company remained adamant in its

position that if the union desired further consideration of

that or any other grievance arising under the contract they

should request arbitration and on September 30 a strike

was ealled and eighty-six or approximately two-thirds of

petitioner's employees walked out on strike (R. 214a, 249a,

461a).

One of the 86 strikers testified that he overheard Mr.

Morley tell the strikers that ‘they were walking out of a

job” (R. 176a) and on the following day, October 1, a tetrer

was sent to the strikers asking them to return to work by

October Sth or they would be considered to have quit and

would be replaced (R. 39a), and shortly thereafter peti-

tioner declined the union’s request that petitioner pay out

of its own pocket the premiums necessary to keep the group

insurance of the striking employees alive and canceiled the

insurance as required under the poliey CR. 4a, 43a-44a,

106a-10Ta, 416a-419a).

At a nevotiating meeting held on October 14 petitioner's

attorney raised a question as to the status of the union

and the striking emplovees (having in mind the right as-

serted in its letter of October 1 to replace those who re-

midined on strike) but no satisfactory conclusions were

reached and petitioner continued to negotiate with the union

as the bargaining representative of its employees and at

all times has been willing to neg¢tiate with it on the terms

of a new contract. The union continued to refuse to nego-

tiate with petitioner regarding the terms of a new contract

and the termination of the strike unless petitioner would

also agree to negotiate regarding a number of grievances,

including the discharge of the buffers, and when the peti-

tioner refused to recede from its position that it was not

required to negotiate regarding grievances subject to settle-

ment under the grievance and arbitration provisions of the

coniract, further negotiations broke down (R. 25la-253a,

26la, 470a-47ia, 476a).

While the strike was in progress a great many of the

strikers were replaced by new employees or their jobs

eliminated by change: in operations (R. 47a-48a, 42a}.

Four of the strikers testified that while the strike was im

progress they were refused reinstatement to their jobs by

petitioner but there was no evidence offered that their Jobs

had not been filled and three of the offers were conditioned

upon the ending of the strike and picketing (R. 242a, 342a-

d43a, 396a-597a), and when the strike was officially called

off by the unien on June 12, 1854, and an unconditional

offer to return te work made on behalf of the strikers all

tho.« who desired to return and whose jebs had not been

filled by replacements or eliminated by changes in opera-

tions were reinstated (R. 45a-48a, 60a-6La, 395a-396a, 428a).

The decisions of the Trial Evaminer, the Board and the

Court of Appeals. The petitioner was charged with commit-

ting three unfair labor practices in discharging the buffers

on August 31 and insisting that the matter be handled as a

grievance under the collective bargaining contract (R. 9a,

J3a-Jda).

The first was that the buffers were engaged in a protected

concerted activity under Section 7 of the Act and therefore

their discharge was an unfair labor practice under Section

S (a) (1); the second was that their discharge was discrimi-

natory in viclation of Section 8 (a) (3); and the third was

that by insisting that the matter be handled as a grievance

13

the petitioner was refusing to bargain in violation of Sec-

tion 8 (a) (5).

As to the first and second charges the Court of Appeals

affirmed the decision of the Trial Examiner and Board that

inasmuch as Section 502 of the Act gave the buffers the

right fo step work if they believed in good faith, even though

inistakenly, that conditions for work were abnormally dan-

serous their work stoppage, even though not a strike, was

a protected activity under Section 7 and their discharge

was an unfair labor practice under Sections & (a) (1) and

(3) entitling thei to be reinstated with back pay and that

it Was immaterial and no defense that they did not inform

the petitioner that they were stopping work because of such

a belief even thongh they had agreed througn collective bar-

caining to handle atl grievances pertaining to worsing con-

ditions as well as discharges through the grievance and ar-

bitration procedure provided in the contract without stop-

ping work (App. A, infra, 6a-9a; R. 452a-460a, 477a-478a.

000A ).

As to the third charge above referred to the Court of

Appeals, reversing the Board and affirming the trial exam-

iner, held that the discharge of the buffers was 4 rriev-

ance fo be settled through the grievance and arbitration

procedure agreed upon in the collective bargaining acree-

ment even after the expiration thereof and therefore peti-

tioner had not violated Section 8 (a) (9) of the Act on Ocv-

tober 14 by refusing to bargain thereon with the union.

(App. A, mfra, p. 9a; R. 467a-477a, 504a-306a).

In spite of this holding the Court of Appeals affirmed

without discussion the finding of the Trial Exaiiner and

the Board that the strike of September 30 was an unfair

labor practice strike because the discharge of the buffers

Was one of the causal factors (App. A, infra, p. 10a; R.

4650a, 400a, 50Ua-Ulaj. This holding is determinative of

cw

14

the remaining charges all of which involved conduct which

would be legal and proper if the strike was an economic

strike in which petitioner would have the right to replace

striking employees,

The Court of Appeals affirmed without discussion the

decision of the Trial Examiner and the Board that the peti-

tioner violated Section 8 (a) (1) and (8) of the Act by

threatening to replace the strikers if they walked out, by

notifying them that they would be replaced if they did not

return by October 5, by refusing to reinstate those who

applied for reinstatement without regard to their previous

replacement during the strike, and by refusing to reinstate

replaced strikers at the conclusion of the strike, and peti-

tioner was ordered to reinstate a!l strikers with back pay

from the time they applied for reinstatement without re-

gard to the fact that they had been replaced (App. A, infra.

p. da, 10a; R. 460a-466a, 478a-479a, 499a-502a, 509a).

It was also charged that petitioner violated Section 8 (a)

(5) of the Act on October 14 by questioning the union’s

status as representative of the striking employees many of

whom were being. replaced. The Trial Examiner held

there was no violation because petitioner at al! times re-

mained willing to negotiate regarding a new contract and

that it was the union which refused to do so (R. 476a-477a).

The Board reversed the Trial Examiner and the Court of

Appeals affirmed the Board without comment (App. A,

infra, 10a; R. 506a-507a). As this charge also involved the

petitioner’s right to replace strikers it, like all_the other

findings, is dependent upon a determination of the ques-

tions involved in this appeal and in particular whether the

strike of September 30 was an economic strike in which the

strikers may be replaced or an unfair labor practice strike

in which they may not he replaced.

15

The jurisdiction of the Board to entertair the unfair

practice charges rests upon the proyen and conceded en-

gegement of petitioner in interstate commerce.

KEASONS FCR GRANTING THE WRIT

This case presents substantial questions of wide public

importance and great practical interest to both employers

and employees in the field of collective bargaining and

labor relations under the Labor Management Relations

Act—1947 and the lower court’s decision is in conflict with

decisions of this Court and of Courts of Appeals.

A. As to the Section 502 Question

The decision of the Court below is based primarily

upon a novel interpretation of the intent and meaning of a

heretofore obseure clause in Section 502 of the Act which

has never before been interpreted by either the Board or

the Courts to have the intent and meaning given to it by

the decision in this ease which is in direct conflict with

three basic principles pertaining to the rights and obliga-

tions of empioyers and employees under the Act which

have heretofore been universally recognized and enforced

by both the Board and the Courts and also with specific

decisions of other Courts of Appeals as well as this

(Court.

The clause in question provides that ‘‘the quitting of

labor by an employee or employees in good faith because

of abnormally dangerous conditions for work at the place

of employment of such employee or employees [shall not]

he deemed a strike under this Act” (App. C, infra, p.

6a).

1. The decision in the Court below holds that under

this clause employees are engaged in an activity pro-

16

tected by Section 7 of the Act if they s/fop work withou!

striking to enforce their demands pertaining to conditions

of work which they believe to be dangerous but which

are not believed to be dangerous by management. This

holding is not only in confliet with the well established

principle that an attempt on the part of employes to

remain at work on their own terms and conditions or while

guilty of insubordination is not the kind of activity which

is protected under Section 7 of the Act and they may

properly be discharged for cause,® but is also in direct con-

flict with the decision of the Court of Appeals for the

Seventh Cireuit in National Labor Relations Board v.

Kohler Company, 220 F. 2d 3, 10, which involved the dis-

charge of twelve employees who walked out without strik-

ing in protest against the shutting off of fans installed

for their protection against the excessive heat from the

furnaces in the enameling department which they claimed

resulted in abnermally dangerous conditions for work and

which did in fact cause a number of employees to become

il. Both the Board and the Court of Appeals in the

Kohler ease concluded, in contrast with the holding in the

ease at bar on indistinguishable faets, that ‘*the men could

not insist on remaining at werk on their own terms and

conditions’’ and therefore they were not engaging in a

protected activity and they were properly discharged.

The suggestion in the opinion of the Court below that

in the Noehler case Section 502 was not relied upon or

construed and is distinguishable on the facts is, we submit,

erroneous. The Aohler case was actually a stronger case

on the facts than the case at bar for claiming that their

®N. L. R. B. v. Local Union No. 1229, 346 U. S. 464; International

Union, UAW, v. Wisconsin Employment Relations Board, 536 U. S. 245;

Home Beneficial Life Insurance Co. v. N. L. R. B., 159 F. 2d 280, cert.

denied 332 U. S. 758; N. L. R. B. v. Mentgomery Ward & Co., 157 F. 2d

486; C. G. Conn, Ltd. v. N. L. R. B., 108 F. 2d 390.

17

work stoppage was protected under Section 502 for in

that case the employees not only informed management

that they considered the eonditions of work to be danger-

ous (which they did not do in the case at bar), but a

number of them, including those that were discharged,

actually became ill as a result of the excessive heat and

received medical attention. As to the suggestion that

Section 502 was not relied upon or construed the fact is

that not only did the Board itself reject the discharged

enamelers’ contention that they were protected in their

walkout under Section 502 of the Act as ‘‘lacking in

merit,’ but on their appeai to Court of Appeals for the

Seventh Cireuit the principal argument in their brief

was entitled **The Action of the Petitioners is Protected

by Section 502 Title V of the National Labor Relations

Act’? and the General Counsel for the National Labor

Relations Board filed his brief in opposition and, with-

out disputing the fact that the enamelers walked out be-

cause of abnormally dangerous conditions, argued that

their conduct derived no proteetion from Section 502, that

Section 502 was not intended to have any bearing on Nee-

tion 7, and that **the employees’ argument would logically

lead to the conclusion that every concerted quitting of

labor in the «treumstances provided in Section 502 would

he protected, regardless of the means through which it is

effectuated.’’ In holding as it did the Court of Appeals

for the Seventh Cireuit obviously upheld the construction

given te Section 502 by the Board and its General Coun-

sel which is precisely the opposite of the position taken

by the Board and its General Counsel in the ease at bar.

2 The decision of the Court below also holds that

under Section 502 of the Act employees are engaged in a

protected activity if they stop work to enforce their de-

mands pertaining to conditions of work which they be-

18

lieve to be dangeroas but which are not believed to he

dangerous by management even though they have entered

into a collective bargaining agreement containing a cov-

enant to settle without work stoppage or lockout all dis-

putes concerning working conditions under the agreed

grievance procedure and also providing that failure to

do appointed work or failure to comply with the agreed

grievance procedure shall be a sufficient cause for dis-

charge. This holding is not only in conflict with the well

established principle that employees through collective

bargaining may legaliy surrender their right to engage

in activities protected by the Act and in fact are en-

couraged to incorporate in such contracts procedures for

the settlement of disputes srising thereunder concerning

such matters as conditions of work, and work stoppages in

violation of such agreements are not protected activities,’

but is also in direct conflict with the decision of the Court

of Appeals for the Fifth Circuit in National Labor Rela-

tions Board v. American Manufacturing Company of Texas,

203 F.2d 212, which involved the discharge of twelve foun-

dry coremakers who complained that the operation of rat-

tlers* while they were at work in the immediate area* cre-

ated dangerous conditions for work because of the flying

dust which was injurious to their health and because the

noise was such as to prevent them from hearing warning

? Mastro Plastics Corp. v. N. L. R. B., 359 U.S. 270, 281; N. L. R. B.

v. Rockaway News Co., 345 U.S. 71; N. L. R. B. v. Sands Manufacturing

Co., 306 U. S. 332.

*“Rattlers” are revolving vessels in which metal castings are placed

and rotated so as to smooth their surfaces and remove sand,

* They had previously been operated only during the other shifts

when there were no employees in that area.

19

signals on the overhead crane.’ Their labor contract con-

tained a provision similar to paragraph 4 in the case at

har (R. 524a) requiring the employer to maintain healthful

working conditions ad safety devices and also required eom-

plaints regarding such matters to be investigated promptly

and corrective measures taken within a reasonable time.

(In the case at bar Step 3 of the grievance procedure allows

the company 24 hours.) The superintendent to whem the

complaint was made promised to investigate but the rat-

tlers continued to operate for the balance of the shift.

When they were again placed in operation the following

day the twelve coremakers stopped work and informed

the management that they would not work with the rat-

tlers running, whereupon they were ordered to either

return to werk or be discharged. Twelve of the ecoremakers

left and were discharged and the following day the entire

plant struck in protest. The twelve coremakers and forty

of the strikers were replaced by new employees and denied

reinstatement.

‘Just as in- the case at bar, the controlling issue ss

whether the discharge of the twelve buffers was a con-

certed activity protected under the Aet. The Court of

Appeals, reversing the Board, found that it was not and

consequently the resulting strike was an eccnomie strike

rather than an unfair labor practice strike, and the dis-

charged coremakers am} the replaced strikers were not

entitled to reinstatement or back pay as ordered by the

Board.

The basis of the Court’s ruling was that under the

labor contract the employer was entitled to a reasonable

time to investigate and correct the grievance and take

‘ The hazards involved are set forth in greater detail in the Board

decision at 98 N. L: .R .B. 226.

20

corrective measures, and as the action of the core:makers

in stopping work was inconsistent with this agreement it

was not protected activity under the Act. This is also

a stronger case for protection under Section 502 than

the case at bar for just as in the Kohler case the employer

was clearly informed that the employees were stopping

work because they believed the conditions for work were

abnormally dangerous whereas they did not so inform

the petitioner in the case at bar.

3. The decision of the Court below also hoids that

under Section 502 of the Act emplovees are engaged in a

protected activity if they stop work to er orce their de-

mands pertaining to conditions of work which are not be-

lieved by the emplover to be dangerous, but which are be-

lieved by the employees to be dangerous even though they

do not inform their employer that they have that belief

or are stopping work for that reason, and having been

discharged ere entitled to reinstatement and back pay.

This holding is in direct conflict with numerous appiie-

able decisions of this and other Courts of which the best

known and most often cited is National Labor Relations

Board v. Jones & Laughlin Steel Corp., 2 U.S. 1, in

whieh the Court at pages 45-46 set forth a principle which

has been cited and followed on namerous occasions:

‘The Act does not interfere with the normal exer-

cise of the right of the employer to select its em-

plovees or discharge them. The emplover may not,

under cover of right, intimidate or eoerce its em-

ployees with respect to their right to self organiza-

tion and representation, and, on the other hand, the

Board is not entitled to make its authority a pretext

for interference with the right of discharge when

that right is exercised for other reasons than intimi-

dation and coercion. The true purpose is the sub-

ject of investigation with full opportunity to show

the facts.”

21

In National Labor Relations Board v. Stafford, 206 F. 2d

19, the Court of Appeals for the Eighth Cireuit said at

page 22:

“The fact in issue is the intent, motive or reason

in the respondent’s mind for the discharge of the

complainants.’’

Even if Section 502 of the Act is construed to mean that

employees are engaged in a protected activity if they

stop work in the belief that conditions for work are

dangerous, how would an employer, who did not himself

believe the conditions to be dangerous, know that they

were engaging in a protected activity if they did not

inform him that they stepped work because of such a

belief? So far as the eu:nleyer is concerned they would

simply be refusing to work and would be subject to dis-

charge for cause.

Congress itself has attempted to protect the employer

in such a situation by providing in Section 10 (ec) of the

Act that ‘*No order of the Board shail require the rein-

statement of any individual as an employee who has been

suspended or discharged, or the payment to him of any

back pay, if such individual was suspended or discharged

for cause,”’

The holding in the case at bar is in direct violation

of this clause for, if petitioner was not informed and did

not know that the buffers were refusing to werk for any

reason that would make their conduct protected under the

Act, then the refusal of the buffers to continue working

is in itself proper cause for discharge.

The construction given to the intent and meaning of

Section 902 of the Act by the decision of the Court below

is not only in direet conflict with the decisions of other

Courts of Appeals and of this Court as above set forth

22

but constitutes a serious departure from the recognized

rules and principles pertaining to the collective bargaining

relationship under the Act and the rights and obligations

thereunder of both employers and employees which have

been uniformly recognized by the Courts.

B. As to the “Unfair Labor Practice

Strike’ Question

The decision of the Court below makes two holdings

which are mutually untenable and completely inconsistent

as a matter of law. The strike ef September 30 was called

by the union for the sole purpose of enforcing its demand

that the petitioner settle a number of grievances, includ-

ing the grievance concerning the discharge of the buffers.

which arose under the contract by collective bargaining

and as a part of the negotiations for a new contract rather

than in accordance with the grievance and arbitration

procedure agreed upon in the contract which had expired

(R. 249a).

The Court of Appeals, reversing the Boa-e, held that

such grievance should properly be handled and _ settled

under the grievance procedure and that the petitioner

had no obligation to bargain on such matters (App. A,

infra, p. a).

However the Court below at the same time affirmed with-

out comment the Board’s ruling that the strike of Sep-

tember 30 was an unfair labor practice strike (App. A,

infra, p. Wa). Inasmuch as the only basis for the Board's

holding that the strike was an unfair labor practice strike

rather than an economic strike was its ruling that the

strike was in part caused by petitioner's refusal to settle

the pending grievances hy bargain which the Board had

found to be an unfair labor practice on the part of the

petitioner.

23

The Court of Appeals having now ruled that this refusal

was not an unfair labor practice there is no longer any

asis for holding that the strike, which was called te en-

force that illegal demand, is an unfair labor practice

strike for the only remaining issues which the strike was

called to settle were economic.

To say that petitioner is not guilty of an unfair labor

practice in refusing to submit to the union’s demand that

it settle past grievances by bargaining but tnat a strike

called to enforce that illegal demand is an unfair labor

practice strike is a legal inconsistency.

We therefore submit that the holding of the lower Court

that the strike of September 30 is an unfair labor practice

strike is in direct conflict with its own holding in this ease

and also with the decisions of this Court holding that

strikes which are not caused by: unfair labor practices

are not unfair labor practice strikes of which one is Na-

tional Labor Relations Board v. Mackay Radio & Tele-

graph Co., 304 U.S. 333.

It is submitted that this question presents not only

an issue of substantial importance in the administration

of the Labor Management Relations Act—1947 but the con-

flict above set forth should be resolved .

CONCLUSION

The processing of raw materials and the use of ma-

chinery in industry inherently invelve some exposure of

workers to dangers of which dust and heat are two of the

most common. The lessening of such dangers by protective

devices are the constant concern of management, labor and

the governing authorities, but it is inevitable that disputes

will arise concerning the efficiency of such devices and the

existence of such conditions. The Federal Government

has encouraged management and labor to agree in advance

to settle such disputes by orderly procedures without dis-

rupting operations. If workers can ignore such agree-

inents and refuse to continue werking, as the decision in

this case holds,on the basis of a unilateral determination,

not concurred in by management, that conditions for work

are dangerous or that the safety devices provided are

inadequate or inefficient, then it would be fruitless to pro-

vide for the orderly handling of such disputes through pre-

scribed grievance procedures and there would be no in-

ducement for management to incorporate such procedures

in their collective bargaining agreements.

if, moreover, employees could leave their jobs at any

time in protest against working conditions but without

even informing management that they believed such con-

ditions to be dangerous and be protected against discharge

for insubordination and recover all wages lost if they

at some later date asserted that they did believe the

conditions to be abnormally dangerous at the time they

walked out and. were discharged, it would not only be

impossible for employers to enforce normal discipline, but

would, fer all practical purposes, destroy the right of

management to discharge employees for cause and put the

25

employer at the merey of the discharged employees who

could regain their jobs and subject their éimployer to the

frightful penalty of reimbursing them for all lost wages

hy the mere expedient of asserting that when they walked

out they did believe that the conditions for work were

dangerous. It is obvious that an authoritative and final

answer to these questions is of the most vital concern to

every employer and employee who are attempting to work

within the framework of the Labor Management Relations

Act and who must continually make decisions which are

dependent on that answer.

It is respectfully submitted that the holding below on the

above questions is not only in direct conflict with decisions

of this Court and of other Courts of Appeals but also

that the implications of the Court’s holding are so far

reaching and affect so many persons and involve such

hasie features of Federal jurisprudence that review by

this Court is warranted and this petition for certiorari

should be granted.

JOHN F. LANGS,

Attorney for the Petitioner,

Knight Morley Corporation.

RICHARD F. MOLYNEAUX,

LANGS, MOLYNEAUX & ARMSTRONG,

Of Counsel.

May, 1998.

la

APPENDIX A

cinema Piaceanad

No. 13116

UNITED STAYES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

National Labor Relations Board, )

Petitioner,

v.

Knight Morley Corporation,

Respondent. |

Devided December 18, 1957

Rehearing Denied February 18, 1958

Before Simons, Chief Judge, and Autex and McA.uister,

Circuit Judges.

Auuen, Cireuit Judge. This case arises on petition for

enforcement of a decision and order of the National Labor

Relations Board which held that respondent had violated

Section 8(a)(1)(3) and (5) of the Labor Management Re-

lations Act, 1947, 29 U.S. C., Section 141 et seq., and or-

dered reinstatement with back pay of certain employees

whom it found to have been improperly discharged.

While the material evidence is in sharp controversy, the

trial examiner and the Board found, based upon substantial

testimony, the following facts:

Respondent operates a manufacturing plant at Richmond,

Mich., engaged in the production of rear view mirrors and

other automobile accessories. Its bargaining contract with

the union, CLO, contained a no-strike clause. Under Mich.

Stat. Ann., Sections 17.26 and 17.36 to 17.39, respondent

was required to provide in its buffing room exhaust fans

for the purpose of carrying off dust from emery wheels and

grinders and dust-creating machinery. Sections 17.36 and

2 Appendix A

17.37 read together require that blowers and hoods be pro.

vided to protect the persons asing buffing wheels from dust

produced thereby and to catch and dispose ef the dust

thrown off by centrifugal foree.

The initial difficulty in the immediate case arose out of

the breakdown of respondent’s blower system in its huffing

room, Beginning Friday, August 21, 1953, the blower,

which when in operation properly sucked up much of the

dirt, dust, lint and abrasives thrown off in the Inuting pro-

cess, was out of order on various occasions. Serious trouble

arose on August 28 when a fire Aestroyed the switehbos

which controlled the blower. On Saturday, August 29, a

new switchbox was installed but in this operation the wires

of the motor were reversed. This caused the fan to run in

reverse so that there was not enough suction in che blower

system to draw off the waste material resulting from the

polishing and buffing, Qn Monday, August 31, because of

this situation, the morning shift of buffers was sent home

afier two hours work, The blower pipes were immediately

cleaned, but in the afternoon of August 31 the blower still

blew dirt, grit and abrasives inte the men’s faces, irritatinyg

eyes, ears and throats. On this day the temperature was

from 96° to 98° in the shade and the atmosphere was very

humid. A thermometer inside the buffing room showed the

temperature there to he 110°. The buffers complained

through their unien steward and the union president to

their foreman and to management. Respondent's prest-

dent, Merley, made a cursory examination, putting his hand

near the wheels of some of the buffing machines. He testi.

fied that the blower sucked in smoke from his cigar. Morley

concluded that the blower was operating properly and re-

jected a stwyestion from an experienced enmployee that the

wires should be reversed. If was shown by the great weight

of the testimony that the blower svstem on this day did not

dispose of much of the cirt. The buffers, through thei

union steward and president, asked permission to stop

working, but were told that they must continue and that

anvone who left the plant would be discharged. All 17 of

the afternoon buffers walked out of the plant at o:14 p. i.

Several of them testified at he hearing that they believed

on

a

Appendix A 5

it would be injurious to their health to work under the con-

ditions of the heat and dust.

On the morning of September 1 there was no impr — -

ment in the operation and the rest of the men threate, d

to leave if the blower was not fixed. One buffer, Herbert

Fox, was told to quit if he wanted to lose his job and he

immediately quit. Thereafter Morley had the wires changed

to the proper position. The blower then operated normally.

When the afternoon buffers returned to work September i

they learned that they had been discharged.

At the time the union was in process of negotiating a new

contract with respondent, the original contract being due to

expire on September 25, 1953. The union pretested dis-

charge of the 17 buffers and, in accordance with its collec-

tive bargaining contract which established a detailed griev-

ance procedure, it submitted a formal written grievance

with reference to the matter. As to this grievance, the

first four steps of the grievance procedure were followed

by the parties, but neither party receded from its position,

responde nt asserting that the buffers had been dise harged

for violation of proper management orders. Under step 9

of the grievance procedure it was optional with the parties

to proceed to arbitrate. Neither party pursued arbitration

to settlement of the particular controversy. Upon the

ground that the grievance procedure should have been fol-

lowed to its ultimate conclusion, respondent refused to bar-

gain on matters relating to the buffers’ discharge in con-

nection with negotiations for a new collective bargaining

contract.

No meeting was held with respendent after September 25

and on September 30 two-thirds of the employees walked

out on strike, although Morley sent them word and also

told them personally that they would be discharged if they

evased work. Respondent then notified all strikers to re-

turn to the plant by Octover 5 and, as to those who did not

return, cancelled group insurance and treated their employ-

nent as ternunated.

ta Appendix A

eye Board found that the buffers quit work in good faith

because of abnormally dangerous working conditions and

that respondent violated Section 8(a)(1) and (3) of the

Aet in discharging them. It devided that in spite of the

no-strike provision of the bargaining contract the cessation

of work by the 17 buffers was protected ander Section 502

of the Labor Management Relatious “ct of 1947, 29 U.S.

+, Scetion 143, the pertinent portion of which provides that

‘‘the quitting of labor by an employee or employees in geod

faith because of abnormally dangerous conditions for work

at the place of employment of such employee or employees”

shall not be ‘‘deemed a strike under this Act.” The Board

also decided that respondent violated the statute by dis-

charging 86 other employees who atruck in protest against

respondent’s unfair labor practice: in dismissing the buffers

and in refusing to reinstate certain employees who applied

for reinstatement; and by threatening to discharge its em-

plovees if they went out on strike. Lastly the Board found

that respondent violated Seetion Sia)(1) and (5) of the

Act by refusing to bargain with its employees’ union repre-

sentative in regard to the dischareed buffers’ grievance,

and hy insisting that any new contract apply only to em-

ployees who had not struck,

We deem it unnecessary to discuss every point raised by

astute counsel for respondent. The eontention that the

Board iraproperly found that respondent, in violation of

Section S(a}(1) of the Act, threatened to discharge several

employees if they joined the strike of September 30, was

raised neither before the trial examiner had issued his in-

termediate order nor before the Board and therefore we do

not consider it. Section 1O(e8), Cf. Federal Power Com

mission vv. Calorado lnterstate Gas Companu, 348 . &

492. 497-502: National Labor Relations Roard v. Viudean

Forging Company, 188 Fed. (24) 997, 929.30 (C. A. 6).

The Board’s decision depends largely upon questions of

fact as to which it made findings which are vigorously at-

tacked by respondent. The findings are sustained by sub-

stantial evidence upon the record considered as a ‘whole

and in general the Board must be sustained.

Lseiatias

T

Appendix A Da

Respondent contends that the discharge of the buffers

held to be wrongful cannot be considered because respond-

ent pad no notice until the filing of the amended compiaint

on July 30, 1954, of the charge that the buffers’ cessation

of work on August 31, 1953, was protected under Section

302 because the 17 buffers in good faith believed that condi-

tions in their workroom were abnormally dangerous. The

charge filed October 14, 1953, complained that on Monday,

August 31, respondent discharged its employees in the

buffing room because of their activities ‘*in attempting to

obtain correction of a faulty blower system.”’ The amended

charge filed December 11, 1953, set up that respondent, on

or about Monday, August 31, 1953, discharged ‘all its em-

plovees in the buffing room because of their concerted activ.-

ties in attempting to obtain correction of w faulty blower

syatem.” Both charges were filed within the six-month

period specified in 29 U.S. ©. Section 160(b).

The purpose of a charge is to set in motion the machinery

of an inquiry. Nattonad Labor Relations Board v. Westex

Boot & Shue Co.., 190 Fed. (2d) 12, 13 (Cc. A. a), National

Labor Relations Board v. General Shee Corporation, 192

Fed, (2d) 504, 505 (C. A. 6). The charge is not a pleading.

National Labor Relations Poard v. Indiana & Michigan

Electric Co., 318 U.S. 9; National Lavor Relations Board v.

General Shoe Corporation, supra, 05; Kansas Muling Co.

». National Laber Relations Board, 185 Fed. (2d) 413, 415

(Cc. A. 10). The strietness of formal pleadings should not

he required therein. Aansas Milling Co, v. National Labor

Relations Board, supra; National Labor Relations Board v.

Kingston Cake Co,, Ine., 11 Fed. (2d) 563, 567 (C. A. 3).

Obviously both charges related to the entire transaction

with reference to the faulty blower and the conditions which

it produced in the buffing room, including the cessation of

work by the 17 buffers. National Labor Relations Board v.

Kohler Company, 220 Fed. (2d) 3, 7 (C. A. 7). Under the

Regulations, Section 102.14, the union was required to

serve respondent with a copy of the charges and the reg-

ional director ‘tas & matter of course’? was instructed to

mail copies to respondent. Under Section LOL4 respondent

ba Appendix A

was ‘“‘asked to submit a written statement of his position in

respect to the allegations” in the charge. As respondent

does not deny having received a copy of the charges, under

the established presumption as to regularity of proceedings

required by statute, we ass‘me that respondent was prop-

erly served with the charge and amended charge. It cer-

tainly had notice of the union's complaint as to conditions

in the buffing room and, of course, had notice of the appli-

-eation of Section 502 to this situation.

Respondent also urges that there was no competent testi-

mony as to physical conditions inside the buffing room on

the afternoon of August 31. However, the heat was shown

to be 110° by thermometer, the humidity was stated to be

great, and it was shown that the humidity was increased by

the failure of the blewers to change the air. It was compe-

tent for the buffers themselves to testify to these physical

conditions and to the lack of evaporation in the room. Lay-

men may testify as to physical conditions which they them-

selves have observed. Robert T. Lincodn v. Central Ver-

mont Railway Company, 82 Vt. 187. This rule applies to

statements as to temperature, the state of the weather, and

dampness. Leopold v. Van Kirk, 29 Wis. 548. Curtis v.

The Chicago & Northwestern Railway Company, 18 Wis.

32i.

Another point of attack was the claim that the record

presented no competent testimony as to the fact found by

the Board that conditions in the buffing room were *‘abnor-

mally dangerous.” These conditions were testified to by

Dr. William Fredrick, an industrial health expert, who had

made this his life work since he graduated in 1936 from the

University of Michigan with a Doctor of Science degree.

Dr. Fredrick was higisy qualified, having been a past officer

ef the American Industrial Hygiene Association, a fellow

of the Ameriean Public Health Association and past

president of its Industrial Hygiene section, a member of

the American Chemical Society, the American Association

for the Advancement of Science, the Association of Analyti-

eal Chemists, and the Engineering Society of Detroit.

Appenaix A Ta

Respondent contends that only a physician could rightly

testify with referetice to the danger to health arising from

the failure of the blower to operate under the conditions

presented. No decision is cited in support of this eonten-

tion.

Industrial hygiene is the science and art of insuring

nealthful conditions of work, and the prevention of occupa-

tional diseases or injury to health arising out of methods of

work. While perhaps only a physician could testify as to

diagnosis of diseese, lay witnesses may testify as to the

existence of disease, or as to conditions producing disease

which fall within their immediate knowledge and exper-

ience,

The possibility that actual! disease may be caused by con-

ditions in plant and in industrial operations is emphasized

in this ease by the fact that the Michigan statute requires

the installation of the blower involved here. This is due to

the well-known tendeney of grit and abrasives such as

Tripoli (used in respondent’s plant) to cause diseases of

the lungs. Dr. Frederick’s testimony was rightly admitted.

Dr. Frederick testified in substance that under the condi-

tions of heat and exeessive humidity described as existing

in the buffing room, combined with faliure of the blower,

working conditions were dangerous to health. He stated

that with the wires on the blower reversed it was reasonable

to assume that the blower’s efficiency was decreased from

76e% to 80%. He said he had personally known of such

cases in which the efficiency of the blower went to zero.

Assuming such a reduction in blower efficiency, it was shown

that air changes in the buffing room would be reduced from

about 36 per hour to between 6 and 7 per hour. Due to the

reversal of the blower fan, Dr. Fredrick stated, the suction

would be reduced to practically zero at the buffer hoods.

Heat generated inside the buffing room by numerous motors

substantially increased the temperature. Under such eir-

cumstances Dr. Fredrick expressed the opinion that em-

plovees working in the buffing room might within two or

three hours experience acute effects of some form of heat

jisease, such as heat prostration or heat stroke, and that

even more serious results might follow if work were con-

Sa Appendix A

tinued. It was clearly shown that the failure of the blower

directly affected not only the accumulation of dust, grit,

and dangerous abrasives, but also the temperature and

humidity in the buffing room. This was substantial testi-

mony to the effeet that the conditions might reasonably

be considered ‘tabnormally dangerous.” Cf. National Labor

Relations Board v. Southern Silk Mills, Ine,, 209 Fed. (2d)

155 (C. A. 6). As the men left the room after one hour and

forty-five minutes of work, the faet that none of them col-

-Japsed is not decisive as to the physical conditions.

Respondent also urges that the Board’s decision on this

point was erroneous because under the Michigan statute

the blower was not required to effect ventilation. It is true

that the statute does not mention general ventilation and

cooling. However, the requirement of a blower system im.

cludes whatever functions the blower, effectively oporatiag,

will perform, such as the reduction of humidity by chang-

ing the air. It would be a strange doctrine to hold that

under Section 502 employees in appraising the abnormal!

danger of working conditions were limited to consider only

the purposes of safety equipment expressly described in

the statute, The heat and humidity, as well as the accumu.

lation of dust, grit and abrasives caused by the failure of

the statutory mechanical devices, joined in creating the ab-

normal danger. The fact that all 17 employees walked out

in face of Morley’s statement that the blower was operating

properly is evidence that the action was ‘‘concerted’’ and

the Board was entitled to find that it was taken in good

faith belief that the continuation of these conditions was

and would be abnormally dangerous.

Moreover, it was not error for the Board to decide that

under these cireumstances it was immaterial that the bar-

eaining contract contained a no-strike clause. Since Section

502 provides that walking out under a good faith belief of

abnormally dangerous conditions does not constitute a

strike, the no-strike provision was not applicable. National

Lahor Relations Board ~v. Kohler Company, supra, does

not require a different conclusion. The vases are distin-

guishabie on the facts. Moreever, in the Nohler ease Sec

tion 302 was not relied on nor construed. That section ex-

Appendix A 9a

pressly limits the right of management to require continu-

anee of work under what the employees in good faith be-

lieve to be ‘abnormally dangerous” conditions. The refusal

to work here came squarely within the terms of the statute

and did not constitute, as held in the Kohler case, supra, an

untawful insistence on remaining at work on the men's own

terms and conditions.

Respondent also attacks the Board's conciusicn that re-

spondent’s insistence that the grievance concerning the

buffer’s discharge should be handled through grievance

proceedings rather than as a part of the negotiation for a

new contract violates Section 8(a)(5) and constitutes re-

fusal to bargain. The trial examiner found to the contrary,

basing his cenelusion largely upon the decision of this

court in Timken Roller Bearing Compan t. National Labor

Relations Board, 161 Fed. (24) 49, O55, The Board en-

deavors to distinguish the instant case from the Timken

case, supra, upon the ground that the grmevance as fo the

buffers’ discharge had not been disposed of when the con-

tract expired. While there were some factual differences

hetween the Timken case and the instant controversy, the

grievance there involved, as here, had not been settled and,

this court held, the emplover’s effort to channel the griev

ances into agreed grievance precedures was nota refusal to

bargain. This court approved and follow that ease in Na-

tional Labor Relations Board v. Standard Oil Company, 196

Fed. (2d) 892, 895. Here, as there, the duty to bargain

could be directed by the parties through contractual agree-

ment and such a contract had been executed. See also Ter-

tile Workers Union of Ameneca v. Lincoln Mills of Ala-

hama, 353 U.S. 448, in which the Supreme Court reversed a

judgment of the Court of Appeals and affirmed a judgment

of the Distriet Court which held that, when a yrievance

arose from the operation of the collective bargaining agree-

ment and while it was in effect, the expiration of the bar-

gaining agreement did not reheve respondent of its con-

tractual obligation to arbitrate. We think the Board erred

n» deciding that respondent violated Sections R(a)(5) of

the Act in dealing with the grievance.

10a Appendix A

However, this conclusion does not require that the order

be modified, for the Board also found that respondent on

October 14 refused to bargain with the union as the repre-

sentative of the striking employees, in violation of Section

8(a)(5) of the Aet. The strike of September 30 was clearly

an unfair labor practice strike. The strikers retained their

employee status and their bargaining representative was

entitled to recognition in their behalf. National Labor Re-

lations Board v. Deena Artware, I..c., 198 Fed. (2d) 645,

651 (C. A. 6), certiorari denied 345 U. S. 906; National

Labor Relations Board v. Pecheur Lozenge Coa., Inc., 209

Fed. (2d) 393, 403 (C. A. 2), certiorari denied 347 U.S. 953.

It is ordered that a decree shall issue enforcing the

Board’s order as prayed in the petition.

ON PETITION FOR REHEARING

Per Curiam. The only point which requires discussion

of the petition for rehearing is respondent’s contention

that it properly raised before the Trial Examiner the issue

as to whether respondent, in violation of Seetion 8(a)(1)

of the National Labor Relations Act, threatened to dis-

charge several emplovees if they joined the strike. In our

opinion we did not consider that issue for the reason that

respondent, as shown by citations in the Board’s reply brief

and not answered by respondent, had failed to file excep-

ticns to the Trial Examiner's findings concerning alleged

threats made by Morley, respondent's president, or to the

Examiner's conclusion that such threats violated the Act.

The Board’s reply brief was filed September 3, 1957, and

respondent filed no answer thereto. The case was heard by

this court October 22, 1957.

Respondent now asserts that it stated at the hearin

before us that it took an exception to the finding o

Trial Examiner, quotes the particular exception and state

that counsel fer petitioner at the hearing agreed that it

objection on this point was improper. The appendix con-

tains no exceptions to the Trial Examiner's report, includ.

SF Ne

Appendix A lla

ing Exception No. 26 now relied on in respondent's petition

for rehearing.

The danger of relying upon cra] statements and upon

claimed agreement with such oral statements, also oraily

stated, of which no memorandum is furnished the court is

apparent.

The important question raised is whether the court has a

right to rely upon the joint appendix filed in compliance

with Rule 16 of the Revised Rules of this court effective

May 1, 1956.

The purpose of the adoption of the rule as to the filing

of appendices, whether separate or joint, is that litigants

and counsel shall have the advantage of presenting a con.

densed record for the purpose of saving time and labor in

preparation and the expense of printing voluminous tran-

scripts of testimony, The court is entitled to rely upon

the appendix as presented. The rules of this court are

liberal with respect to the filing of unprinted portions of

the record as part of the appendix, even after the printed

appendix has been filed. Under Rule 16/6), either party

may file typewritten copies of such portions of the record

as he desires at any time prior to the eal! of the case for

argument: and such typewritten copies shall be considered

as a part of the appendix. In this case respondent had

some seven weeks prior to the hearing in the court to file

such typewritten addition to the appendix but took no

artion. The petition for rehearing on this point has no

merit.

In any event certain statements of respondent's president

made to two employees could properly be considered by the

'xaminer and the Board as threats constituting coercion.

Since the Examiner and the Board so found, there was

ample support of the conclusion that respondent violated

Section S(a)(1) of the Act.

=> Ali questiens raised in ti petition for rehearing have

) heen considered, It is ordered that the petition be and it

reby is denied.

13a

APPENDIX B

a aes

No. 13116

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

National Labor Relations Board, ”

- Petitioner,

v. ‘

Knight Morley Corporation,

Respondent. }

DECREE

: (Filed December 18, 1957)

Qn petition to enforce an order of the National Labor

Relations Board,

This’ cause came on to be heard on the transcript of the

record from the National Labor Relations Board, and was

argued by counsel.

On consideration whereof, it is now ordered, adjudged

and decreed by this Court that the order of the National

Labor Relations Board be enforced as prayed for in its

petition.

ORDER GENYING PETITION FOR REHEARING

: (Filed February 13, 1958)

The petition for rehearing is denied for the reasons

stated in memorandum on petition for rehearing of even

date herewith.

loa

APPENDIX C

The relevant provisions of the Labor Management Rela-

tions Act, 1947 (29 U.S. C., See. 141 et seg.) are as follows:

TITLE L—AMENDMENT OF THE NATIONAL LABOR

RELATIONS ACT

Riauts or EMPLOYEES

Sec. 7. Employees shall have the right to self-orgeniza-

tion, to form, join, or assist labor organizations, to bargain

vollectively through representatives of their own choosing,

and to engage in ether concerted activities for the purpose

of collective bargaining or other mutual aid or protection,

and shall aiso have the right to refrain from any o1 all of

such activities except to the extent that such right may be

affected by an agreement requiring membership in a labor

organization as a condition of employment as authorized in

section S (a) (3).

Uwram Lapor Practices

See. S (a). It shall be an unfair labor practice for an

emplover—

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 7;

(2) by diserimination in regard to hire or tenure of em-

ployinent or any term or condition of employment to en-

courage or discourage membership in any labor organiza-

af sk Ss

ion

. * . . >.

16a Appendix C

(5) to refuse to bargain collectively with the representa-

tives of his employees, subject to the provisions of section

9 (a).

PREVENTION oF Unrairn Lapor Practices

* 7 * * 4

See. 10 (c) * * * No order of the Board shall require the

reinstatement of any individual as an employee who has

been suspended or discharged, or the payment to him of any

back pay, if such individual was suspended or discharged

for cause. ° ° °

. ° +. . 2

(e) The Board shall have power to petition any circuit

court of appeals * * * for the enforcement of such order

* * * No objection that has not been urged before the

Board, its member, agent, or agency shall be considered by

the Court °° *.

TITLE V.

SAVING PROVISION

See. 502. Nothing in this Act shall be construed to re

quire an individual emplovee to render labor or service

without his consent, mer shall anything in this Act be eon-

strued to make the quitting of iis labor by an individual

employee an iliegal act; nor shall any court issue any pro

cess to compel the performance by an individual employee

of such labor or service, without his consent; nor chall the

quitting of jabor by an employee or employees in good faith

because of abnormally dangerous conditions for work at the

place of employment of such employee or emplovees be

deemed a strike under this Act.