Brief for the Respondents in Opposition — Lebanon Steel Foundry v. National Labor Relations Board

INDEX

INICIO in on cain wa Ce uae wau ed anole os Fee Paths

Jurisdiction : Site ora ,

Question presente d. = ; r

Statute involved ___ ~ : : tt ae’

Statement__- : , ;

Argument APE AE : ; mo

Conclusion. ......... a ’ — ANE hae Ae

CITATIONS

Cases:

C. A. Lund Company, In re and Novelty Workers Union,

Local 1866, 6 N. L. R. B. 423...

Century Mills, Inc., In re, 5 N. L. R. B. 807...

DekKay, Clifford M., Matter of and International Brotherhood

of Teamsters, Chauffeurs, Stablemen and Helpers of

America, Local Union No. 649, 2 N. L. R. B. 231

Denver Automobile Dealers Association, 10 \. L. R. B. 1173.

Elbe File and Binder Co., Inc., Matter of and Bookbinders,

Manifold and Pamphlet Division, Local Union No. 119,

International Brotherhood of Bookbinders, 2 N. L. R. B.

906_.. user Beane

National rgpsad Relations Board vy. Bradford Dye ing Ass'n,

310 U, 318 : P a i :

National een Relations Board vy. ping Refining Co.,

102 F. (2d) 678, certiorari denied, 308 U.S. 568.

National Labor Relations Board v. Lund. 103 F. (2d) 815

National Labor Relations Board y. National Motor Be aring

Co., 105 F, (2d) 652. ; bates

National Labor Relations Board v. Re mington Rand, Inc.,

94 F. (2d) 862, certiorari denied, 304 U. 8. 576

National Labor Relations Board v. Somerset Shoe Co.. 111 F.

(2d) 681 5 :

National Motor Bearing Company, In re and International

Union, United Automobile Workers of America, Local

No. 76,5 N. L. R. B. 409 : P

Rabhor Co., Inc., In re and International Ladies’ Garment

Workers Union, 1 N. L. R. B. 470..

(1)

482045 42

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Statutes:

National Labor Relations Act (Act of July 5, 1935, e. 372,

49 Stat. 449, 29 U.S. C., sec. 151):

Beotion 9, 76:0. 6; ©. nee, 160 (6)... cas. <.

Miscellaneous:

Fifth Annual Report of the National Labor Relations

Board, pp. 45-46... . 5-22 oo cone s+ soe eases

National Labor Relations ‘Board Rules and Regulations,

Series 2, as amended, effective, September 6, 1941:

PPT TN es oa a 5's weds Gia eo ms eel oe ep aan ta Se

Sixth Annual Report of the National Labor Relations

Board, p. 50.0.2 o2n nn cose cscs ces cwssensoecscsene

Page

10

10

10

10

Gnthe Supreme Court of the Wnited States

OcToBER TERM, 1942

No. 293

LEBANON STEEL Founpry (A PENNSYLVANIA

CORPORATION ), PETITIONER

Vv.

National Lasor Retations Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN

OPPOSITION

OPINIONS BELOW

The opinions of the court below (R. 248-257) are

not yet reported. The findings of fact, conclusions

of law, and order of the National Labor Relations

Board (R. 70-101) are reported in 33 N. L. R. B.

233.

JURISDICTION

The decree of the court below (R. 258) was en-

tered on June 29, 1942. The petition for a writ of

certiorari was filed on August 11, 1942. The juris-

diction of this Court is invoked under Section 240

(a) of the Judicial Code, as amended by the Act of

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February 13, 1925, and under Section 10 (e) and

(f) of the National Labor Relations Act.

QUESTION PRESENTED

The sole question presented in this case is

whether there is substantial evidence to support the

Board’s finding that the majority of petitioner’s

employees, by signing certain check-off cards, desig-

nated Steel Workers Organizing Committee as

their collective bargaining representative.

STATUTE INVOLVED 7

The pertinent provisions of the National Labor

Relations Act (Act of July 5, 1935, ¢. 372, 49 Stat.

449, 29 U.S. C., see. 151 et seq.) are set forth in

petitioner’s Appendix (Pet. 21-23).

STATEMENT

Upon the usual proceedings, the Board on July

10, 1941, issued its decision (R. 70-101) in which it

found that petitioner had refused to bargain col- ]

lectively with Steel Workers Organizing Commit-

tee (hereinafter called the Union), in violation of

subsections (5) and (1) of section 8 of the Act. Pe-

titioner offers no challenge to the Board’s findings

except the finding that the Union had been desig-

nated as collective bargaining representative by a

majority of petitioner’s employees in the appropri-

ate unit.’ We therefore omit a statement of the

1 Petitioner also admits, for the purposes of the question

presented, that during the period bargaining was requested

by the Union, the Union had secured signed check-off cards

from a majority of petitioner’s employees in the appropriate

unit (Pet. 4).

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evidence supporting the Board’s findings except

the evidence pertaining to the single issue which

petitioner raises in this Court. On that issue, the

Board’s findings and the supporting evidence are as

follows: ?

Union activities among petitioner’s employees

began in September 1940, when a group of em-

ployees approached a Union organizer at a nearby

steel plant and secured membership application

eards from him (R. 74; 103-105, 121, 137). Each

membership application card contained, in addition

to an application for membership, an express des-

ignation of the Union as collective bargaining rep-

resentative of the signer (R. 74; 137). After a

number of these cards had been executed by peti-

tioner’s employees, the Union’s district representa-

tive met with some of the employees, at their

request, in September 1940 (R. 74; 103, 121). At

this meeting, when the employees expressed a desire

for a check-off or deduction of union dues from

their wages, they were instructed by the Union rep-

resentative to use ‘‘Wage Deduction Authority’’

or check-off cards in lieu of membership applica-

tion cards in soliciting Union members (R. 74-75;

105, 126). Check-off cards, to be signed by those

employees who previously had executed member-

ship application cards, were distributed and, there-

* In the following statement, references preceding the semi-

colons are to the Board’s findings, and the succeeding refer-

ences are to the supporting evidence.

a

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after, only check-off cards were used in obtaining

union members (R. 75; 105-107, 126-127).

The check-off cards were of two types, used inter-

changeably, and read as follows (R. 75-76; 106,

123-124, 137-138):

WAGE DEDUCTION AUTHORITY

Ballers VR Siete ee RARE

To the Paymaster of

I hereby authorize you to deduct from

my wages one dollar ($1.00) per calendar

month, beginning with the month of

ietoneipglon dc lebbotanie iti , 19... provided I have

worked a total of five (5) days or more dur-

ing the calendar month.

This payment to be sent to the Secretary-

Treasurer of the 8S. W. O. C., David J.

McDonald, 1500 Commonwealth Building,

Pittsburgh, Pa.

This authority to be effective during the

life of the agreement. This authority will

automatically be cancelled if, as and when

the labor and working agreement between

your Company and the S. W. O. C. termi-

nates.

5 A oak (Address)

WAGE DEDUCTION AUTHORITY

| Eero jE SELVA ET ORS

To the paymaster of

I hereby authorize you to deduct from my

wages union dues amounting to one dollar

($1.00) per calendar month, provided I have

_——

5

worked a total of five (5) or more days dur-

ing the calendar month; and my initiation

fee (amount specified below) which shall be

deducted within one month from the date

you received this card from the Financial

Secretary of the local union.

Money so deducted to be sent to David J.

MeDonald, Secretary-Treasurer of the 8. W.

O. C., 1500 Commonwealth Building, Pitts-

burgh, Pennsylvania.

This authority shall only be effective dur-

ing a collective bargaining agreement be-

tween the S. W. O. C. and your Company

that includes the check-off system.

Pnitiation fee, $....-......

Signature ‘Address

S

The uncontradicted testimony of the Union’s dis-

trict representative showed that check-off cards

had been used throughout his district to signify

Union membership as well as authority to deduct

Union dues; that the Union customarily organized

plants in the area by having employees sign such

cards; and that employers operating such union-

organized plants accepted check-off cards as proof

of the desire of signatories to have the Union rep-

resent them (R. 76; 106, 129-131).

Upon the basis of the foregoing findings and evi-

dence, the Board found that petitioner’s employees

who signed the check-off cards had thereby des-

ignated the Union as their representative for col-

lective bargaining purposes (R. 77).

6

The Board made further findings that the Union,

thus designated as collective bargaining representa-

tive by a majority of petitioner’s employees (R.

79-80) in an appropriate unit (R. 74), sought to

bargain with petitioner on several occasions from

December 16, 1940, to January 23, 1941, but that

petitioner at all times failed and refused to bar-

gain collectively with the Union in good faith (R.

80-98), in violation of Section 8 (5) and (1) of

the Act (R. 98, 99-100). At no time during the

fruitless negotiations did petitioner raise the is-

sue now presented or voice any doubts as to the

Union’s majority status (R. 80-82, 84-85, 94-95,

96).

The Board’s order required petitioner to cease

and desist from its unfair labor practices; to bar-

gain collectively, upon request, with the Union;

and to post appropriate notices (R. 100-101).

On July 29, 1941, petitioner filed in the court be-

low a petition to review and set aside the Board’s

order (R. 138-147). The Board answered, re-

questing enforcement of its order (R. 148-152).

On June 29, 1942, the court below, Stephens, J. dis-

senting, handed down its opinion and entered its

decree affirming and enforcing the Board’s order

(R. 248-258).

ARGUMENT

1. The sole issue here presented is whether evi-

dence supports the Board’s finding (R. 80) that the

Union was designated as collective bargaining rep-

SIE NAS LOE NGL NRE EN RENE IPP SIE TIE BBN, UNG PE tA 9 pee fragt r MRT BION eters ae 98 cee owes aroetoNa

——,

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resentative by petitioner’s employees, a majority

of whom admittedly signed check-off cards. This

ultimate finding is based upon the subsidiary find-

ing that the authorizations of wage deductions in

the circumstances of this case evidenced a “‘ present

desire to become and be a member of”’ the Union,

and in any event evinced ‘‘a desire to have [the

Union] * * * negotiate a contract’’ (R. 77).

The Board’s finding is undeniably proper. Un-

contradicted evidence establishes that the check-off

cards were regarded and used as membership ap-

plication cards both by the Union and by the sub-

scribing employees (R. 105-107, 126-127). Such

check-off cards were substituted for membership

application cards as a result of a request from the

employees to the Union representatives for the

establishment of a check-off of union dues from

their wages (id.). The substitution was made at

the beginning of the Union’s campaign to organize

the employees in petitioner’s plant (id.), and all

those who had already signed membership applica-

tion cards signed the check-off cards as well, after

which only the latter were used (R. 126-127).

Petitioner’s contention that the employees who

signed check-off cards did not thereby intend to des-

ignate the Union to bargain for them ignores the

elementary and universally known fact that em-

ployees join and affiliate with unions for the pri-

mary purpose of collective bargaining over wages,

hours, and working conditions. The Courts and

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8

the Board have heretofore found that designation

of a union as collective bargaining representative

was manifested by mere application for union

membership, subseription of union registration

‘ards, participation in a strike vote taken by a

union, participation in a strike called by a union,

and acceptance of strike benefits from a union.

Thus, in National Labor Relations Board v. Brad-

ford Dyeing Ass’n, 310 U.S, 318, 338-339, the Court

sustained the Board’s finding of designation for

collective bargaining where the employees had

signed membership applications without paying

dues or initiation fees. See also In re National

Motor Bearing Company and International Union,

United Automobile Workers of Aincrica, Local No,

76,5 N. L. R. B. 409, 427-428, enf’d as to this point

in National Labor Relations Board vy. National Mo-

tor Bearing Co., 105 F. (2d) 652 (C. C. A. 9)-

* Also .Vational Labor Relations Board v. Louisville Refin-

ing Co., 102 F. (2d) 678, G80 (C. C. A. 6), certiorari denied,

308 U.S. 568 (union membership application) ; Vational

Labor Relations Board vy. Somerset Shoe Co., WA F. (2d) 681,

687 (C.C. A. 1) (union membership application) ; J/atter of

Elbe File and Binder Co., Inc. and Bookbinders, Manifold

and Pamphlet Division, Local Union No, 119, International

Brotherhood of Bookbinders, 2 N. L. R. B. 906, 910 (union

registration cards) ; J/atter of Clifford M. DeNay and Inter-

national Brotherhood of Teamsters, Chauffeurs, Stablemen

and ITelpers of America, Local Union No. 649, 2 N. 1. R. By

231, 237 (union membership applications, although dues or

initiation fees not yet paid and not yet admitted to member-

ship); Zn re C. A. Lund Company and Novelty Workers

Union, Local 1866, 6 N. La. R. B. 423, 435, enf’d on this issue

and remanded on other grounds, Vational Labor Relations

Peter de

srs

SS PIER ES BOLO SE HEROS IE TC i SO Re

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Moreover, by their very terms, the check-off

cards signed in this case manifest a desire

to designate the Union as collective bargaining

representative. The cards specifically provide for

deductions from wages for ‘union dues’? and

“initiation fee’’; they make express reference to a

contemplated agreement between the Union and pe-

titioner, viz, “the labor and working agreement”

and “a collective bargaining agreement’? (R. 75-

76). Unless this language is meaningless, it neces-

sarily signifies the signer’s desire that the Union

represent him, bargain for him, conclude an agree-

ment, and receive the checked-off wages as union

dues. Any other interpretation is wholly unrealis-

tic. But if there were any reason to doubt that

this was what the parties intended, all doubt

would be dispelled by the fact that check-off cards

customarily were used throughout the Union dis-

trict to denote Union membership as well as au-

thority to deduct Union dues from the employees’

wages (R. 106, 129-131).

2. The question in this case is not one of general

importanee. It has not arisen heretofore, and the

Board’s experience does not show it to be a promi-

nent issue. Petitioner’s suggestion (Pet. 7, 19)

Board v. Lund, 103 F. (2d) 815 (C. C. A. 8) (participation in

strike vote taken by union) ; Jn re Century Mills, Inc. 5 NL.

R. B. 807 (participation in strike called by union) ; Denver

Automobile Dealers Association, 10 N. L. R. B. 1173 (par-

ticipation in strike called by union) ; 7n re Rabhor Co., Ine.

and Jnternational. Ladies’ Garment Workers Union, 1 N. LL.

R. B. 470, 474476 (acceptance of strike benefits from union).

Ne AY Re NES MORRIE NH SION ARSTS RRA BI MT Oh MN ERMAN DR aE Uae

10

that doubts regarding union designation might

arise in the minds of employers in other cases as a

result of the decision below, overlooks the fact that,

where such doubts arise in good faith, adequate

machinery exists whereby they may be resolved.

(See section 9 (c) of the Act, 29 U.S. C. 159 (¢);

see also Art. IIT, National Labor Relations Board

Rules and Regulations, Series 2, as amended effec-

tive September 6, 1941, where the various means

are detailed of determining whether a Union repre-

sents a majority of the employees.) An employer

who in good faith entertains doubt as to whether a

Union actually represents a majority of his em-

ployees and for that reason refuses to recognize

the union as the employees’ representative, does

not commit an unfair labor practice in refusing

to bargain with that union until adequate evidence

is submitted to him to show that the union is the

designated bargaining representative (see Fifth

Annual Report of the National Labor Relations

Board, pp. 45-46, Sixth Annual Report of the Na-

tional Labor Relations Board, p. 50; see also Na-

tional Labor Relations Board v. Remington Rand,

Inc., 94 F. (2d) 862, 868 (C. C. A. 2, certiorari

‘Petitioner had no such doubts here. See supra, p. 6.

The record shows that petitioner was not misled by the

cheek-off cards. At both the December 21 and January 10

meetings the Union claimed to represent a majority of the

employees and offered the check-off cards as proof. Neither

time did petitioner express doubt that the Union did repre-

sent a majority of the employees, and neither time did peti-

tioner inspect the check-off cards. (R. 81, 84, 85.)

11

denied, 304 U. 8. 576). Petitioner’s own refusal

to bargain collectively with the Union was not

predicated on doubt as to the majority status of

the Union, and petitioner showed profound disin-

terest in the Board’s proposal to hold an election

to determine the bargaining representative (R. 90-

92). Hence the problem presented in the instant

case, Which has not heretofore occurred in the ex-

perience of the Board, does not present a question

of general importance.

CONCLUSION

The decision of the court below enforcing the

Board’s order is correct. No conflict or other

reason for the further review of the order is

presented. It therefore is respectfully submitted

that the petition for a writ of certiorari should be

denied.

CHARLES Fany,

Solicitor General.

VALENTINE Brookes,

Attorney.

Rosert B. Warts,

General Counsel,

Ernest A, Gross,

Associate General Counsel,

Morris P. GLUSHIEN,

JULIAN R, WILHEIM,

Attorneys,

National Labor Relations Board.

SEPTEMBER 1942,

US GOVERNMENT PRINTING OFFICE 1942

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