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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1944
- **Citation:** 321 U.S. 797

## Text

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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,

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