Appendix — American Creosoting Co. v. National Labor Relations Board

aula lai a

13

APPENDIX.

The pertinent provisions of the National Labor Relations

Act (Act of July 5, 1935, ¢. 372, 49 Stat. 449, 29 U.S. C.,

Supp. V, See. 151, et seq.) are as follows:

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

organization, to form, join, or assist labor organiza-

tions, to bargain collectively through representatives

of their own choosing, and to engage in concerted

activities, for the purpose of collective bargaining or

other mutual aid or protection.

Sec. 8. It shall be an unfair labor practice for

an employer—

(1) To interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed in

section 7.

> * *

(3) By discrimination in regard to hire or tenure

of employment or any term or condition of employ-

ment to encourage or discourage membership in any

labor organization * * *,

(5) To refuse to bargain collectively with the

representatives of his employees, * * *,

nee, 2 7 =

(c) * * * If * * * the Board shall be of the

opinion that any person * * * has engaged in or is

engaging in any such unfair labor practice, then the

Board shall state its findings of fact and shall issue

and cause to be served on such person an order re-

quiring such person to cease and desist from such

unfair labor practice, and to take such affirmative

action, including reinstatement of employees with or

without back pay, as will effectuate the policies of

ime att, * * *

* o *

14

(e) The Board shall have power to petition any

circuit court of appeals of the United States * * *

within any circuit or district, respectively, wherein

the unfair labor practice in question occurred or

wherein such person resides or transacts business,

for the enforcement of such order * * *. The find-

ings of the Board as to the facts, if supported by evi-

denee, shall be conclusive. * * * The jurisdiction of

the eourt shall be exclusive and its judgment and

decree shall be final, except that the same shall be

subject to review * * * by the Supreme Court of

the United States and upon writ of certiorari or

certification as provided in sections 239 and 240 of

the Judicial Code, as amended (U.S. C., title 28,

sees, 346 and 347).

/ ———e 212

Lawyers Press, Inc., 165 William St., N. Y.C.; ’Phone: BEekman 3-2300

BRIEF FOR THE

RESPONDENTS

IN OPPOSITION

Lee rt or

Page

Opinions below. - tes a ta Sey a essa ananassae a eae 1

Jurisdiction ats see 1

Questions presented > . : 2

Statute involved ae rs 3

Statement 3 : : e opie tees i 3

Argument Sonar re Se ; a aac Roranle Sle 8

Conclusion __ BNA : ian ee neat 10

Appendix Ryirstee ee 5 3 5S 12

CITATIONS

Cases:

Berkshire Knitting Mills v. National Labor Relations Board,

121 F. (2d) 235__. Sepa a ee - 9,10

Eagle-Picher Mining & Sme lting Co. v. National Labor

Relations Board, 119 F. (2a) 903 er ated Ae ee ea 9

Firth Carpet Co. v. National Labor Relations Board, 129 F.

2a) 633. _._... X accent cates SEC ha ot ithe Seto 9

National Labor Relations Board vy. Bachelder, 120 F. (2d)

574, certiorari denied, 314 U.S. 647___ ee aie tee Oe 9

National Labor Relations Board v. J. G. Boswell Co., 136 F.

(2d) 585 . , : =e i de 9

National Labor Relations Board v. William Davies Co., 135

F. (2d) 179, No. 319, present Term. certiorari denied,

October 18, 1943 2 re ee

National Labor Relations Board v. Electric Vacuum Cleaner

Co., 315 U. &. 665... ; wim ee 9

National Labor Relations Board v. Kentucky Fire Brick Co..

99 F. (2d) 89 es aes paeee 9

National Labor Relations Board v. Polson Logging Co., 136

F. (2d) 314 ithe ee

National Labor Relations Board v. Wilson Line, Inc., 122 F.

(2d) 809 =a sear re

Overnight Motor Co. v. Missel, 316 U.S. 572 i =e 10

Phelps Dodge Corp. v. National Labor Re lations Board,

113 F. (2d) 202. affirmed, 313 U.S. 177. _.__. ie 9

Tripler Screw Co. v. National Labor Re lations Board, 117 F

(2d) 858_...__ i REI ITIL AEG. 9

Statute:

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

49 Stat. 449 (29 U.S. C. 151 et seq.):

pee. 2...... RS atte a ae 2

RP NDDG As tue latpe nee Pe Bg Senter 12

see. 8 (3). ..... en é dicts a Pei eis Nora tare a bolas 12

sent Bh ge ED TAN A ERTS 12

ee We NS Gita Dre lands aot ee eo! 12

580259—44 (1)

Anthe Suprente Gourt of the United States

OcTOBER TERM, 1943

No. 756

AMERICAN CREOSOTING COMPANY, INCORPORATED,

PETITIONER

v.

NationaL Lapor RELATIONS Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN

OPPOSITION

‘' OPINIONS BELOW

The opinion of the cireuit court. of appeals

(Rt. 607)' is reported in 139 F. (2d) 193. The

findings of fact, conelusions of law, and order of

the National Labor Relations Board (R. 84-111)

are reported in 46 N. L. R. B. 240.

JURISDICTION

The decree of the court below (R. 606) was

entered on December 4, 1943. The petition for a

‘The designation “R” refers to the printed record filed in

the court below, as supplemented by the opinion and decree

of the court below,

(1)

PSS RAY

2

writ of certiorari was filed on Mareh 3, 1944. The

jurisdiction of this Court is invoked under Sec-

tion 240 (a) of the Judicial Code, as amended

by the Aet of February 13, 1925, and under See-

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

QUESTIONS PRESENTED

1. Whether there is substantial evidence to sup-

port the findings of the Board, which were sus-

tained by the court below, that petitioner, by in-

terrogating employees regarding union affiliation,

by thPeatening loss of employment as the penalty

for union membership, by discharging an em-

ployee because of his union membership, by re-

fusing to bargain with the union’ which repre-

sented a majority of its employees in an appro-

priate unit, thus causing and prolonging a strike

of its employees, and by discriminatorily refusing

reinstatement to 40 of the strikers, has committed

unfair Jabor practices in violation of Section 8 (1),

(3), and (5) of the Act.

2. Whether the Board’s delay in issuing a com-

plaint herein, after charges were filed against

petitioner, should shorten the period within which

hack pay is to be computed for the employees

ordered reinstated.

?Qil Workers International Union, Local 379, affiliated

with what was then the Committee for Industrial Organiza-

tion and is now the Congress of Industrial Organizations.

3

STATUTE INVOLVED

The pertinent provisions of the National Labor

Relations Act are set out in the Appendix, infra,

pp. 12-13.

STATEMENT

Upon the usual proceedings, the Board on De-

eember 23, 1942, issued its findings of fact, con-

clusions of Jaw, and order (R. 84-111). The per-

tinent facts, as found by the Board, and shown

by the evidence, may be summarized as follows’

The Union was formed at petitioner's plant on

December 4, 1936 (R. 87: 151, 245). The next

day, Plant Superintendent Brown (R. 87; 118),

characterizing the Union as “not a fit union to

helong to.’ sought to persuade emplovee Keuhne,

one of its founders, to abandon the organization

and to influence fellow employees to do likewise

(R. 87; 314-315). Brown also inquired of em-

ployee Kaley whether he had Joined the Union.

denounced the Union to him, tried to influence

him to “drop out’ of it and to “talk to the men

and try to pull them out,’ and reinforced these

remarks with the threat that petitioner would

shut down its plant before it would sign a con-

tract with any union (R. 87: 298-299). Other

supervisory employees engaged in similar coercive

conduct, questioning subordinates as to their union

fide

In the following statement, the references preceding the

semicolon are to the Board's findings: the succeeding refer-

ences are to the supporting evidence.

CSS ROP ROR

4

affiliation and interests, and threatening that such

affiliation would lead to loss of employment (R.

87-90; 201-202, 220-222, 232-233, 235, 243-244,

P83, PSO-POT, 292, 294-795, 299-300, 3875-376, 37T9-

380, 407, 482).

Upon questioning employee Frank MeKenzie

and thus ascertaining that he ‘fseemed to be the

strongest for the Union,’ petitioner, on December

15, 1936, instructed MeKenzie’s immediate supe-

rior to “get rid of? him, Pursuant to these in-

structions, MeKenzie was discharged on the same

day. (R. 87-88; 220-222, 232-233, 235-238.)

The Board concluded that petitioner diserim-

inated in regard to the hire and tenure of employ-

ment of Frank MeNKenzie, thereby discouraging

membership in the Union in violation of Section

8 (3) of the Aet, and by the foregoing inquiries

and statements interfered with, restrained, and

coerced its employees in the exercise of the rights

guaranteed in Section 7 of the Act CR. 90, 108).

By March 19, 1937, the Union, whieh conced-

edly represented a majority of petitioner’s em-

ployees in an appropriate unit CR. 9b; 541),

had arrived at an understanding with petitioner as

to terms and conditions of employment. How-

ever, petitioner refused to mcorporate this under-

standing in a signed, written document. (CR. 92;

32-134, 147, 259, 454, 594-596.) Petitioner pre-

vailed, and the parties operated under the oral

agreement until September 1987 (Ro 92; 148, 151,

259, 595). While this agreement was in effect,

Cy a MA ing ELT BOS RAMON WR nt a Ay AO Oo ea

5

petitioner continued its efforts to undermine the

Union by telling employees that it would never

recognize it, by urging employees not to become or

remain members of the Union, and by threatening

them with loss of gg soaayie for union member-

ship or activity CR. 93; 289-291, 201-203, 294-295,

292, 299-300).

In September 1937, the Union sought a revision

of terms and a signed contract (R. 93; 152, 269-

210, 135-136). Paced with petitioner's unyielding

insistence on the terms of the previous oral agree-

ment, the Union finally offered to accept. these

terms if reduced to a signed, written contract (R.

WO 135-136, 161-162, 183-184, 200, 258-259,

Ho8—399, 346-345, 366, 456-458). Petitioner, how-

ever, refused to sign a written contract (R. 94:

Io6, IS2-183, 260, 339-340). Finally, on October

4, 1937, petitioner's employees struck in an effort

fo compel petitioner to enter into a written con-

tract with the Union (R. 94; 126, 137, 166, 2d58—

LOS, 260, 271, 309, 340). During the strike. the

parties held several meetings in an effort to settle

the controversy. Petitioner still made no counter-

proposal apart from reiterating its Willingness to

perpetuate the oral agreement of March 1937. In

auswer to the Union's demand that this agreement

be signed, petitioner answered, “If you think this

company will put their name on paper, either for

this union or any other union * * * you are

badly mistaken’. (R. 94-95; 139-140, 200, 215,

245-244, 339, 458-159. )

en AS, SOO atti

LAO TER IORE

6

On December 13, 1937, petitioner reopened its

plant for operation, replacing the striking em-

plavees with others (R. 100; 142, 180-181, 184, 217,

o77). The strike proving unsuccessful, the em-

plovees abandoned it on December 23, and on that

date about 85 of the strikers appeared at the

plant and requested reinstatement (RR. 100; 141-

142, 191-192, 524-525). Reinstating only 13. of

the applicants, petitioner has since refused to dis-

place those hired during the strike, and through-

out has failed to reemploy 40 of the strikers,

though it has reeruited new emplovees while the

40 strikers awaited reinstatement (R. 101-102;

141-142, 192, 174-175, 264-265, 328, 378, 494, 565-

966, 301, 325, 286-287, 283-285, 577-581, 591, 603-

604, 545-546). In refusing reinstatement to some

of the strikers who subsequently renewed their ap-

plications for employment, petitioner indicated

thateits refusal was actuated by the desire to

punish them for their activities on behalf of the

Union CR, 102-103; 283-284, 285, 328, 336, 286-

287).

The Board concluded that petitioner failed in

its duty to bargain with the Union in good faith

as the exclusive representative of its production

employees, and to embody any understanding

reached in a written agreement signed by both

parties, and that petitioner, on and at all times

after March 19, 1937, by so refusing to bargain

collectively with the Union, interfered with, re-

strained, and coerced its employees in the exercise

7

of the rights guaranteed in Section 7 of the Act

(R. 95-96). The Board further concluded. that

the strike of October 4, 1937, was caused by pe-

titioner’s refusal to bargain as aforesaid, and was

thereafter prolonged by petitioner's continued re-

fusal to bargain (R. 99); that petitioner's refusal

to reimstate the strikers constituted a discharge

for engaging in concerted activity on behalf of the

Union; and that on and after December 23, 1937,

by its refusal to reinstate the strikers, petitioner

has discriminated against such employees in re-

gard to hire and tenure of employment, thereby

discouraging membership in the Union and inter-

fering with, restraining, and coercing its em-

ployees in the exercise of the rights guaranteed in

Section 7 of the Act CR. 103),

Upon findings that petitioner’s conduct as above

summarized constituted unfair labor practices

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

of the Aet CR. 108), the Board ordered petitioner

to cease and desist from the unfair labor practices

found and from in any other manner Interfering

With, restraining, or coercing its employees in the

exercise of their rights as guaranteed in Section

(of the Act; upon request, to bargain collectively

with the Union, and if agreement is reached as to

terms of employment, to embody such agreement

in a signed, written contract; to offer the 41 em-

ployees discriminated against, reinstatement with

back pay; and to post appropriate notices (R.

108-111).

8

On April 22, 1943, the Board filed in the court

below its petition for enforcement of its order

against petitioner (R. 1-5). On December 4,

1943, the court handed down its opinion (R. 607-

613), and on the same date entered its decree (R,

606) sustaining the findings of the Board as to the

unfair labor practices, and enforcing the Board's

order with a modification not relevant here (R,

110, 610-612).

ARGUMENT

1. Petitioner’s contention (Pet. 10-12) that the

Board’s findings of unfair labor practices are not

supported by substantial evidence presents no

question of general importance. In any event,

the evidence summarized in the Statement (supra,

pp. 8-6) affords full support for the challenged

findings, as the court below held (R. 608-610).

2. equally unsound is petitioner’s position (Pet,

4-10) that the Board’s delay in issuing the com-

plaint should toll the back-pay period. It is well

settled that administrative delay does not oper-

ate to deny to the Board the right to proceed to

the full effectuation of its orders, nor to deprive

employees of the remedy to which they are en-

titled by reason of unfair labor practices com-

mitted against them by their employer. This rule

is based on two main grounds: (1) that the Act

has not conferred jurisdiction on the courts to de-

termine whether the Board has acted with ade-

quate promptness in disposing of the business be-

9

fore it, the same flexibility being allowed to an

administrative agency as to courts of record, since

“the same factors of crowded dockets and inade-

quate personnel may result in the unfortunate de-

lays of which litigants often justly complain”

(National Labor Relations Board v. Wilson Line,

Inc., 122 F. (2) 809, 815 (C. C. A. 3)); (2) that

between an offending employer and the victims

of his unfair labor practices, the consequences of

administrative delay should be borne by the

former (National Labor Relations Board vy. Elee-

tric Vacuum Cleaner Co., 315 U. 8. 685, 697-698 *),

Petitioner attempts to distinguish (Pet. 5-6,

10) between delay before and after the issuance

of a complaint, asserting (Pet. 5-6) that the de-

lay in the issuance of the complaint resulted in

To the same effect are Vational Labor Relations Board v.

J. G@. Boswell Co., 136 F. (2d) 585. 597 (C. C. A. 9); Na-

tonal Labor Relations Board y. Polson Logging Co. 136 F.

(zd) 314 (CLC. AL 9) (sub stlentio): National Labor Rela-

tions Board vy. Wm, Davies Co.. 135 F. (2d) 179, 183-184

(CC. AL 7), No, 319, present Term, certiorari denied,

October 18, 1943; Firth Carpet Co. v. National Labor Rela-

tiuns Board, 129 F, (2d) 633, 636 (C. C. A. 2): Berkshire

Nuitting Mills v. National Labor Relations Board. 121 F.

(2d) 285, 237 (C. C. AL 3): Vational Labor Relations Board

v. Bachelder, 120 F, (2d) 574, 579 (C. C. A. 7), certiorari

denied, 314 U.S. 647; Eagle-Picher Mining & Sinelting Co. v.

National Labor Relations Board, 119 F. (2d) 908,915 (C. C.

A.8)3 Triples Screw Co. vy. National Labor Relations Board,

117 F. (2d) 858, 862 (C. C. A. 6): Phelps Dodge Corp. v. Na-

tional Labor Relations Board, 113 F. (2d) 202, 206 (C. C. A.

2), affirmed, 313 U.S. 177, 200; National Labor Relations

Board v. Nentucky Fire Brick Co., 99 F. (2d) 89 (C.C. A.

6) (sub silentio).

its inability to ‘know during that time whether

10)

the Board considered the ease of sufficient merit

to justify a complaint and hearing, * * *,"

This, we submit, is not a distinetion in the appli-

cable principle. As this Court has declared in an- |

swer to a similar contention, “Perplexing as peti-

tloner’s problem may have been, the difficulty does

hot warrant shifting the burden to the employee.”

Overnight Motor Co. ve Missel, 316 U. 8. 572,

983. Moreover, the courts have been as con-

sistent in refusing to shorten the hack-pay period

due to delay in the issuance of a complaint, as

they have been in cases involving other types of

administrative delay. “The mafter of time with

regard to the issuance of a complaint by an ad-

ministrative body must necessarily be one of the

matters within the discretion of that body.”

Berkshire Knitting Mills v. National Labor Re-

lations Board, 121 F. (2d) 235, 237 (C. C. A. 3);

see also National Labor Relations Board v. Polson

Logging Ce., 136 F. (2d) 314 (C. C. A. 9); Na-

tional Labor Relations Board vy. Wm. Davies Co.

135 F. (2d) 179, 183-184 (C. C. A. 7), No. 319,

present Term, certiorari denied, October 18, 1943;

National Labor Relations Board v. Wilson Line,

Inc., 122 F. (2d) 809, 815 (C. C. A. 3).

CONCLUSION

The decision below, sustaining the Board’s

order as amended, is correct, and presents no

should therefore be denied.

11

conflict of decisions or question of general im-

portance. The petition for a writ of certiorari

Respectfully submitted,

CuHarues Fany,

Solicitor General.

ALVIN J. RocKWELL,

General Counsel,

RurH WEYAND,

ISADORE GREENBERG,

Attorneys,

National Labor Relations Board.

Marcu 1944,