Brief of the Respondent in Opposition to Petition for Writ of Certiorari — National Labor Relations Board v. Warren Co.

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| i The Supreme Court of The United Sates : a

| OcToBER ‘TERM, 1995 oS : - i

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NATIONAL LABOR RELATIONS BOARD, PETITIONER

“THE WARREN COMPANY, INCORPORATED .;._ .

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BRIEF OF RESPONDENT IN OPPOSITION TO THE PETITION:

e FOR A WRIT OF “HRTIORARI TO THE UNITED STATES CouRT

| ‘OF APPEALS FOR THE FIFTH ciecuiT |

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61 Stat. 136, 29- U.S.C. ee ee ©

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INDEX.

THE STATUTE INVOLVED . : 2+ >.

STATEMENT OF THE CASE .

REASONS FOR DENYING THE. W RIT.

. CONCLUSION

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AUTHORITIES CITED

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‘Brooks vs. National Labor Relations Board, U. S. |

Supr eme Court, Deftded Dec. 6, 1954.

_Joe Hearin, 66,N.L.R. B., 1276

Labor Board vs. Mayer, 196 Fed. (2) 286 .

Squirr el Brand Co., 104 N.L.R.B., 289. . : ee ae

Great Southern Trucking Co. vs. 1 N.L.R.B., 139°

Fed. (2) 984, Cert. denied, | 399 US. 729 .

2 Am. Jur.," p. 917°.

v. is *e@°* 4

West Texas-Util. Co. vs. NIL.R.B., 206 Fed (2d)

* 442, Cert. denied, 346 U.S., p. 885".

N.L:R.B. vs. Express Publishing Co., 128 Fed (2)

_ 690, Cert. denied; 317 US Ay, A ae ae

Reed & Prince Mfg. Co.. vs. N.L.RB.B., 205 ea:

(2d) 131,-Cert. denied, 346 U.S.°887 .

: “Anderson vs. Dunn, 6 ‘Wheat 20575 toa. 742.

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h The Supreme Court O1 “The nite ae

OcTOBER TERM, 1954

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NATIONAL LABOR RELATIONS BOARD, PETITIONER

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THE Ww ARREN COMPANY, JNCORPORATED.

PRIEF OF THE RESPONDENT IN OPPOSIT TION TO rHhP PETITION

FOR A WRIT OF CERTIORARI TO THE UNITED ST. YTES COURT

i OF APPE. ALS FOR THE FIFTH CHR WIT

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THE SPATU TE INVOLV ED.

Not only are felevant the- provisions of the section

of the Statute cited by the Sclicitor General, Hut very

revelant are the provisions of Sec. 9(a) (c) of the Na-

tional Labor Relations Act, as amended (61 Stat. 136,

29 USC 151, et seq.), set forth as follows: ae

' “See. 9 (a). Representativ es designated or. selected

for the purposes of collective bargaining by the ma-

jority of the employees in a unit appropriate for such

purposes shall be the exclusive representatives of all the

employees in such unit for the purposes of. collective —

bargaining in respect to rates of pay, wages, hours ot

employment, or other conditions of employment;

(c). (1) Whenever a petition shall have been filed,

in accordance with such regulations as may be pre-

“ser ibed by the Board—

=f A) by an employee or group of employees or any —

individual or labor organization acting in their behalf

alleging that a substantial number of employees (1).

1 ean

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wish ta be represerited for collective bargaiming and

_ that their employer declines to recognize their repre--

sentativ e as the representative def fined i in Section 9 (a),

or (ii) assert that the individual er labor organization,

which has been certified or is being currently recoq-

nized by their employer as. the bargaining representa-

tive, is no longer a representative as defined in See.

i ae ahs No Peaaieaas | :

-.(B) by an employer, alleging that one or more indi-

viduals or labor org'anizations have presented to him

a claim to he recognized as the representative defined

‘in section 9 (a); a

The. Board shall investigate. ‘such petition ‘and if it

has reasonable cause tg believe that a question of rep-

resentation: affecting commerce exists shall } rovide. for |

Ss an®appropriate hearing upon due notice. +h hearing

niay be conductéd by an officer or empld ‘ee of the re-

gional office, who shal) not make any-re commendations i

_ with respect thereto. If the Board finds upon. the rec-_

ord of such hearing that such a question of represen-

tation exists, it shall direct an election by secret ballot

-and shall certify.the results thereof.”. . .

- (3) No election shall be directed in any bargaining

unit or any subdivision within which, in the preceding

twelve month period, a } vate election shall have e Jeen

Wes Ss ee

| --s STATEMENT OF THE CASE”

he statement of the case submitted by the Solicitor |

Geheral is, substantially correct. Respondent would -

clarify certain portions. thereof.

There has never been at any ‘time a Board conducted

election for c&rtification or decertification of the Union

at Respondent’ s plant.

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Qn petition to adjudicate the Company in civil con-

tempt for refusing to comply with the decree, the Com- -

pany not only reiterated the defense of the Union’s loss

of a majority, but asserted that it had in all good faith

complied with all of the provisions of the decree in that

it had posted notices, had reinstated certain employees,

had paid back wages to those certain.employees, had‘.

ceased and desisted from the practices prohibited by ‘

the decree, and had sought, in all*good faith, through

all legal processes the determination of the majority

status of the Union. These requests for a fair determ-

ination of this status through the facilities of 4 Board-

conducted ‘and supervised election were flatly denied

by the Board. reais

On. November: 23, 1948 the Union filed. with the

Board a Petition for Certification: as the Bargaining

Representative of Respondent's employees (appendix,

to Petitioner’s Brief 171)..Atn agreement for a consent

election was entered into Between the Respondent and

the Union on January 5, 1949 (appendix to Petitioner’s

Brief,.87).-On January 8, 1949 the Union withdrew

its consent (app. to Petitioner’s Brief, 88) and the elec-

tion was never held. Subsequently, unfair practice

charges were filed by the Union, and, after a hearing ©

thereon the Board ordered the Company to recognizeé -

the Union as the Bargaining.Agent onthe basis of card

designatjons. Respondent was adjudged by. the Board

as guilty of certain unfair practices, including diserim-

. inatory discharges and failure to bargain, and the

Court entered its Enforcement Order. Respondent had

complied with. the Court’s decree by the. posting of

netices, the reinstatement of certain designated em-

ployees, the payment to them of back wages, and had

met for bargaining as described in the Petition to this

Court. A petition signed by five out of six employees

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involved informed Respondent that it, was the desire of

these employees that the Union no longer. he recognized

as their bargaining agent. Respondent petitioned the

Board to hoid an election to determine the status. The

Board refused. Resporident declined to bargain fur-

‘ther. The Board petitioned the Fifth Circuit Court of |

Appeals to find Respondent in Contempt, principally

on the ground that it had failed to bargain. The Court.

absolved Respondent and dismissed the Petition.

REASONS FOR DENYING THE WRIT

tees ‘The Court did not disregard well-settled prin-

ciples of. substantive law. : ee

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No election ‘had ever been held. Recognition Was -

ordered by the Board on the basis of card a

The rule requiring recognition of: the Union for

twelve month period cited by the Board, applies under . -

the statute only w here ‘ ‘a valid election shall have been

~ held.” |

. Inthe recent case of BROOKS VS. NATIONAL LA-

BOR RELATIONS BOARD, ‘decided December 6,

1954, this Court upheld the Board's formula: “A cer-

tification, if based on a Board conducted election, must

be» honored fur.a reasonable period, ordinarily ‘one ©

year’ in the absence of unusual circumstances.” And _

in the footnote in this case the Court says ‘Both before |

and .after the Taft-Hartley Act, the Board and the

Courts did not apply the’rule to a collective: bargain-

_ ing relationship established other than as the re-

. sult of a certification election, ‘citing Joe -Heayin, 66. .

N:L.R.B. 1276, (card cheek) ; Labor Board vs“Mayer,

196 Fed. (2d) 286 (card check) ; Squirrel Brand Co., .

104.N. L:R.B: 282, (order to bargain).”? In the Mayer Ss

_ ease, cited. by this Ceurt, the Board refused an elec-—

tion, certified the Union on the basis:of a card check, -

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ment. :

2. Not being aa on n thie same statute, the decision

below is not in conflict with the ruling of the Court -

of Appeals for the Fourth Circuit in Great Southern

and ordered bargaining. The. Gonet denied enforce: :

Trucking Co. vs. National Labor Relations Board, 139° -

Fed. (2d) 984, certiorari denied, 322 U.S. 729. The

Trucking Co. case based on the 1935 Statute was de-

cided on January 10, 1944, and certiorari denied. Agee

this Court on April 24, 1944, three- years before the *

passage of the ‘ ‘Labor Management. Relations Act of

1947,” which incorporated the above cited amendments

providing the twelve month period between elections,

and prov iding certification and decertification elec-_

tions: Decertification elections. were permitted where

employees asserted the bar gaining agent was no longer

their representative. (Segs. 9a and.c).

‘Upon the Board’s refusal to hold an election, ‘in ace ,

cordance with the Act, to determine the ma jority status,

it became proper for,the Court to inquire whether the ©

Board’s action had been arbitrary and capricious, and

to deny the contempt petition on the facts presented.

3.- The’ ‘Circuit. Court. did not. abuse its discretion in

dismissing the Petition for Coritempt. .

It-is recognized that a Court of superior jur risdiction

may review the. decision of one of inferior jurisdiction ;

on a matter of contempt. But the action of the lower

Court as to matters in its judicial discretion will not

be disturbed unless there is a clear and gross abuse

thereof. (2 Amer. Juris. p. 917).

| This Court has consistently refused to review the

judgments of lower Courts. on petitions’ for contempt

aa &

arising from alleged disobedience of orders of enforce-

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ment under the Labor Management Rekations Act of j

A947 and its predecessor, the W agner Act. |

“West Texas Utilities Co. vs. X.L.R. B:, 206 Fed...

(2d) 442-449, Cert. denied 346 U-S. 885. x

N. LR. B. vs. Express: Publishing Co: (5th ‘Cire. ),

Not in contempt. 128 Fed. 20) 69 0, Cert. denied

/—317.U 676." 3

Great Southern Trdcking Lo. vs. N.L.R. B., 139 5

~ Fed. ( Bay 984; ; Cert. denied’ 322-U-S:-729,

_ Reed & Prince Manufacturing Co. vs. ‘tbe

Labor Relations Board, (not in contempt), 205 |

Fed. (2d) 131—1st Cire.—Cert. denied; 346. U.S

887. : |

While the right of review is recognized, “it is said

that “it belongs eX@iysively to the.Court offended to

judge of contempt; and no other Court or Judge can |

or ought to undertake, in a collateral w ay, to question —

or review an adjudication of contempt made by another —

compdtent helene itso ” (Anderson vs. Dunn 6 Wheat

(U.S.)°204, 5 L.Ed..242.

Contempt can be found only if‘the CireuitCourt.was

offended by the acts of Respondent. Because of the

. circumstances that Court did not feel offended, but

on the other hand felt that it “would stultify itself,

its decree and do violence to the’ Act if it ordered the

employer to force upon its employees as bargaining :

-agent a Union not of their own choosing merely be-

cause some six years before the. Board had ordered.,

the employer to: recognize it as bargaining ie for

its then’ employees.”

It was never the intent of Congress to force an em-—

ployer to bargain with a Union which is not the choice

of the employees, has never been:certified as the result

ata,

ti ee

of a Board conducted election, and has been repudiated.

by the employees.: Dueyprocesses prescribed by the Con-

gress for the fair determination of the bargaining

agent have been denied the employees and the employer.

The.agency should exist. To punish a Respondent for -

failure to bargain with a Union.which is not the agent. .

would be mockery of justice. The Circuit Court did

. not abuse its discretion. . ? a

CONCLUSION .

For the-above reasons it is respectfully submitted.

that the petition for the writ of certiorari should be

denied. - | ave

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Respectfully submitted.

JOHN WESLEY WEEKES

Counsel for Respondent

P. O. Box 250 s pe Cer

Decatur, Georgia

January 1959

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