# Brief of the Respondent in Opposition to Petition for Writ of Certiorari — National Labor Relations Board v. Warren Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0145%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of the Respondent in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1955 - **Citation:** 350 U.S. 107 ## Text a LEE oe x po Jeeenene com Rho oe : . ; ' . - bf mE) e 4 . 3 ‘ ‘ e 2 . .-* | ed . Se . 3 » 4 3 i POP ORE IIOP es RS cial ‘ “ No. : : : gS ~ + . = . = | i The Supreme Court of The United Sates : a | OcToBER ‘TERM, 1995 oS : - i 6 NATIONAL LABOR RELATIONS BOARD, PETITIONER “THE WARREN COMPANY, INCORPORATED .;._ . Cd > 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 | Ny in 5 : . : : . Bae @ ’ . é ; z om ) ; ‘ "3 , : “* : ’ e ‘ eee Joan WESLEY WEEKES ss, Ze : , " Counacl for’Respondent = =, Bom 250, Decatur, Georgia Ni . ow, e . : ona ° Os : e . ; La! t ° * 5 coveatoapet, ae 4 =F . é ~ 2 ° : . . : *% $ “. ® : . j ‘ , . -- ‘ P ‘ . ue . | a . . * 4 a * / 61 Stat. 136, 29- U.S.C. ee ee © piece INDEX. THE STATUTE INVOLVED . : 2+ >. STATEMENT OF THE CASE . REASONS FOR DENYING THE. W RIT. . CONCLUSION py. AUTHORITIES CITED = ‘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. -. 9 and: GT 8 . 6 °¢ ce 6 h The Supreme Court O1 “The nite ae OcTOBER TERM, 1954 a oe : NATIONAL LABOR RELATIONS BOARD, PETITIONER ° US. 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 — -—---—---— ; a 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 . ‘ 2 : 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. 3 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 s : 4 . 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 een — ill 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, - 5 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- ° F 6 | ; i ; ‘e ; ne 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 a cee a Respectfully submitted. JOHN WESLEY WEEKES Counsel for Respondent P. O. Box 250 s pe Cer Decatur, Georgia January 1959 ~~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA04386408_0145%3A4. Public record. Not legal advice.