# Opposition Brief — Tex Tan Welhausen Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1437%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 397 U.S. 819 ## Text * "INDEX REL SNES EAA Oe ee ee Z EES Rat ee Questions presented . cere ath Bact assmibe Seutinedlaessaindeowied Sanaa a C Statement_...____ oa ha DO EX A. The Board’s findings of Se 1.. The negotiations prior to the strike_ 2. The strike and subsequent negotia- BREE AD 20a Beene gn a | B. The decisions I eles acini rp ; 1. The. negotiations prior to the strike Negotiations: proceeded for seven months hefore a strike, was called (infra, p. 12), during which time the parties held nine formal bargaining’ seasions with . out reaching an agreement on anything except oné minor point—that employees transferred from one de-. 4 partment to another for the convenience of the Com- pany would not lose their seniority (Pet, App. A71- A72). During these negotiations, the Company “re- fused to incorporate into a contract matters which were, or which it claimed were, the actual practice, including the Union’s right to timestudy a job on which there was a grievance, the Union’s right to file grievances on the establishment of standards, and a prohibition against retiming by reason of ‘high earn- ings alone,” while “[a]t the same time it insisted that the contract provide that the employees surren- der their statutory right to bargain collectively about piecerates, subcontracting, plant closing or moving, -and other matters” (Pet. App. A126). The Company refused to discuss economic matters until the Union made substantial concessions on non-economic matters, — but at the same time uttered “subtle threats” to move - its operation to Puerto Rico because of financial con- siderations (Pet. App. A123-A124). It engaged in such delaying and dilatory tactics as using negotia- tors without authority to commit the Company (Pet. App. A129-A130), insisting on written proposals, and reading undisputed provisions of the contract and lengthy extracts from law. revjew articles during the bargaining sessions (Pet. App. A128-A129). The Company also used unreasonable’ and shifting argu- ments to avoid. reaching any agreement on such sub- jects as arbitration, overtime, ventilation, and incor- poration in the contract of the Company’s own_lan- guage regarding the retiming of job standards (Pet, App. A132-A135). And it refused to give the Union’s timestudy engineer sufficient data to study existing jobs (Pet. App. A93-A94). The bargaining over piecework standards and griev- ances procedures illustrates the a bad faith in the negotiations: _ Under Article III of the prior contract, wages were determined by quantity of production under the Com- © pany’s “Standard Hour System.” *, The Company, by engineering stop-watch studies, unilaterally estab- lished both’ the standard and classification rates for particular. jobs (Pet. App, “A25-A27). During the negotiations, the Union sought to obtain a contract clause which would assure that the standards were - fairly set .and provide a basis for judging the fair- ness of the standard if a grievance should. arise. - Thus, at the third bargaining session, the Union pro- posed a clause which provided that “with the proper — application of incentive effort employees will be able to achieve a minimum of 30 percent above the time-_ study standard * * *” (Pet. App. A41-A42; R. 2730). 1 For a given job, a “standard” is established, which is the number of decimal hours required to produce 100 units by a normal operator working at a normal rate of speed under normal working conditions. A classification rate is also given to each job, for example, $1.31 per hour. Thus, if the standard for a particular job is 2.00 hours, the average em- ployee, working at a normal rate of speed under normal working ‘conditions, should produce 100 units in exactly 2 hours. If, however, he completes 100 units in only 1.5 hours, he would achieve 133 percent of “standard” (2 + 1.5) and, therefore, would earn $1.75 per hour ($1.31 x 133). On the other hand, if he took 3 hours to produce 100 units, he would be producing at only 66 percent of standard (2+ 3) and would only be entitled to 3.76 per hour, subject, however, to the federal minimum wage floor (Pet. App. A28; R. 2725- 2730.) “R.” references, it should be noted, are to the joint appendix printed by the parties for use in the court below. 6 Union negotiator Shapiro explained that sucha clause would prohibit a timestudy engineer from requiring employees to work at incentive to achieve standard (Pet. App. A41; R. 259-262), and would indicate to the employees that they are “expected and provided . with the opportunity to earn above [standard]” (R. 350, 345-351). Company chief negotiator Weiss re- sponded that the Union’s proposal would provoke grievances (R, 346-347), and added (R. 351): Your language doesn’t fit the system at all. The system is that a normal man working at a nor- mal speed achieves one hundred percent. You say he has got to achieve one hundred and thirty percent. Shapiro replied (ibid.) : No, I do not say that. I say with proper applica- tion of incentive éffort. | . Weiss then said this language was “getting into some- thing too vague and indefinite to be practical * * *” ‘(R. 351). Shapiro suggested, instead, that the parties ‘incorporate language frorn the Company’s Informa- tion Bulletin into the contract,’ but Weiss declined (R. 851). ~ . ?The Company issued to its employees a booklet entitled ‘“Information Bulletin on Tex-Tan’s Standard Hour Plan for Production Workers,” which explained the system as follows (R. 2725-2729) :- This unit of work is known as the Standard Hour and represents the standard amount of Effective Effort which is reasonable to expect from a worker during One Hour by a Normal Operator working at a Normal Rate of ee At a later bargaining conference, the Union pro- posed language on production standards, which was: copied in its entirety from the Company’s bulletin (note 2, supra) (Pet. App. A44): Section 10. An operator working at normal speed is rated one hundred percent (100%). One hun- dred percent (100%) productivity is attained without special effort if the operator is experi- enced on the. operation and is applying himself normally, - : Weiss summarily rejected the new proposal, saying it was the same as the other proposal with changed percentages (Pet. App. A44; R. 1172). When Sha- piro remarked that the proposal was new, taken com- pletely from the Company’s bulletin, Weiss replied that language appropriate for a bulletin was not suit- able for a contract (Pet. App. A44; R. 1172-1174). Speed under Normal Working Conditions. This includes an allowance for Fatigue and Personal Needs. = « ” o : An operator working at normal speed is rated 100%. * * a . * 100% Productivity is attained without special effort if the operator is experienced on the operation and is apply- ing himself normally. - - oe - - For extra effort or Productivity above 100%, a paid premium is earned. All time standards are set for the particular method used — at the time the time study was. made and will not be changed unless the method, procedure, layout, or material is changed. | \ 8 Also at the third bargaining session, the Union pro- posed the following revision of Article III of the prior contract,. designed to limit the Company’s right arbi- - _ trarily to retime jobs (Pet. App. A833; R. 2730): The Company shall have the right to re-time any job on which a substantial change has been made. Any such retiming and the standard resulting therefrom shall reflect a change in earnings only to the extent of the actual change in the job con- tent. Employees to be time studied shall be ad- vised in advance that the study is to be taken. — It also proposed the following (R. 2730-2731) : The Company agrees that no job may be re-timed for reason of high earnings alone. When Company representatives expressed concern that the word “substantial”: in the proposal might cause disputes as to whether retiming was justified, Union negotiator Shapiro agreed to drop the word “substantial” (Pet. App, A. 34; R, 228-229). Com- pany representatives then objected that the require- ment that a new standard reflect only the change ac- tually made would result in a grievance “every time” as to the extent of the change and that the matter . was too complicated to be spelled out in a contract (Pet. App. A34; R. 243-247). Company negotiator Weiss also objected to the provision prohibiting retim- ing for high earnings, contending that it would pre- vent correction of standards based on mistakes re- vealed by the fact that earnings turned out to be far out of line (Pet. App. A34; R. 360). When Shapiro agreed to add the language “This does not preclude the right of the Company to retime a job in which 4 ‘9 an error has been made in the original study,” Weiss replied that the proposal would sow the seed for griev- ances (Pet. App. 34-35; R. 360-362).° “On July 28, 1965, when the Company finally pre- sented a complete contract proposal, it contained a provision on production standards which was the same as that set forth in the Company’s Information Bul- - letin, except for the prefatory phrase: “Without in ‘ any way limiting the Company’s authority set forth herein:and purely by way of explanation” (Pet. App. A. 35-36; R. 2728-2729). Shapiro asked what the prefatory clause” meant—whether it meant that the Company still reserved the right to restudy a job even though there might have been a method change. Weiss cryptically replied, “It means exactly what it says” (Pet. App. A36-A38; R. 934-935). The Union’s effort to obtain a contract provision ~ respecting piecework giievances received the same treatment. Thus, under the old contract the Union did not have the right to grieve over the establishment — of piecework standards (Pet. App. A31-A32; R. 2710- On another occasion, Company negotiators insisted that jobs never were retimned by reason of high earnings alone. Shapiro said that in that event there should be no objection to so providing in the contract, and asked whether: the Com- pany would be in violation of the old contract if it did retime a job because of higher earnings (Pet. App. A39; R. 360- 366, 468-513). Weiss said that the proposed clause would be an implied admission that it had happened. Shapiro then proposed that the provision read, “Just as in the past our policy will continue to be that we will not retime a job and change standards on the basis of high earnings alone.” Weiss replied that the Union was trying to wreck the Company’s . piecework system (Pet. App. A38; R. 946-949). 10 2711). Several such grievances had been processed, however, and the Company early in the negotiations justified its rejection of the Union’s various proposals relating to the wage system by claiming that the em- ployees could grieve if they considered standards un- _ fair (Pet. App. A32; R. 332, 616, 883-888). Accord- '.ingly, in its contract proposal submitted on October 18, 1965, the Union attempted to revise the grievance procedure to include specifically (R. 2747-2748): “The establishment of * * * any piece-work rate es-_ tablished by the Company.” The Company objected, stating that the old contract was not intended to per- mit the processing of grievances as to the establish- ment of piecework standards, but only as to mistakes in their application. Weiss added that granting the Union the right to grieve over the establishment of . standards sounded “like the Union is going to insist on being involved in the setting of every standard” (Pet, App. A32; R. 1181-1182). Shapiro acknowl- edged that the Company had the right to set a stand- ard initially without ‘consulting the Union, but in- quired whether, under the previous contract, the Un- ion did not have the right to grieve over the establish- ment of a standard if the Union felt the standard was “not satisfactory.” Weiss declined to advance an opinion. He then agreed “‘to try to draft something * * *»” but stated that he was not promising to sub- mit anything (Pet. App. A32; R. 1183-1185). When an argument arose later about whether the Union © could grieve over the establishment of standards, Production Manager Manning interjected that the Union had “exercised the right in the past,” and “ll Shapiro agreed that a dozen grievances over piece- ' work standards had been processed (R. 1213). How- © ever, Weiss stated that the Union could grieve only | _if the Company acted arbitrarily. But, when Shapiro sought to pin down what “arbitrarily” meant, Weiss replied, “We are trying to keep you from wrecking ' the system” (R, 1214-1217). The Union also attempted to include in the con- tract a provision guaranteeing it “the right to time study any job on which there is a dispute” (Pet. App. A45; R. 2750-2731). At the fourth conference, Sha-_ piro noted that the Company had permitted independ- ent time studies in the past and asked if the same - procedure would automatically be followed in the fu- ture when a grievance arose over piecework. Shapiro added that it had taken three weeks to get an answer in the case of one grievance then pending, and said, “* * * T don’t want to go through a lengthy proce- dure in order to get a time study man.” Weiss re- fused to make any arrangements for the future, stat- ing only that the Company would agree to reasonable requests (Pet. App. A45-A46; R. 315-320). When the issue arose later, Weiss said that the matter was adequately ‘covered by the old contract, because: the right to file a grievance implied the right to do any- thing necessary to process it (R. 356-360). Shapiro relied, “Let’s say that in the contract,” but Weiss re- joined, “I don’t think it is necessary to spell it out any more specifically. The law implies that” (R. 858). The Union pressed its timestudy proposal at several of the remaining pre-strike conferences (R. 513-514, 564-566, 580-581, 691-706, 926-934), but . & the Company continued to oppose such a contract pro- vision because the Union had been accorded the right to make timestudies in the past and it might use such a clause to “disrupt and undermine the time ~ study” (R. 928). | 2. The’strike and subsequent negotiations In mid-October 1965, the Union held a membership meeting to discuss the progress of negotiations (Pet. _ App. A94; R. 1983-1988). Shapiro advised the em- ployees that ‘the bargaining committee had met and ‘voted to strike because of the Company’s. refusal to. bargain. When employees asked whether they were striking because the Company had not given a wage increase,-Shapiro replied; “[N]o, we are striking be- cause the Company has refused to negotiate on wages and all the other items which have been reported to you * * *” (Pet. App. A95; R. 1988-1989). After a discussion about strike benefits, the employees, by a secret vote of 212 to 9, authorized the committee to ‘eall a strike (Pet. App. A95; R. 1989-1990).. The Company rejected the Union’s proposed con-— tract on October 20, and on November 5 the Union filed charges with the Board alleging, inter alia, an ° unlawful refusal to bargain (Pet. App. A16, n. 2). That same day, 60 to 75 employees, representing each départment-in the Company, met in the Union’s of- fice. Shapiro f6ld them that the Company had con- tinued its refusal to bargain, that the.Union had filed unfair labor practice charges, and that the © strike was being called because of the Company’s un- . fair labor practices. A motion that the Company be 18 declared on strike as of midnight November 7, 1965, was carried unanimously (Pet. App. ns R. 2014-2017). : The strike ents on Nove ember 8, 1965, and lasted for seven months (Pet. App. A96, A104). During ' that period, the parties held two formal-and five ex- ecutive bargaining sessions in the presence of a fed- * eral mediator; the issue of a wage increase was dis- cussed for the first time, but agreement was not reached on that or any other issue (Pet. App. A96- A104; R. 1285-1287, 1307, 1325- 1331, 1857-1865, 1345-1354, 2579-2583, 2031-2039). On June 3, 1966, the Union notified the Company by telegram that the strike was being terminated, and the striking employees unconditionally offered to return to work (Pet. App, A104; R. 2774-2775). On June 7, however, the Company refused to reinstate most of the striking employees until such time as the Company “need[ed] them” and could “work them ‘into the work force” (Pet. App. A144; R. 1366). Some employees were reinstated but not to theif for- mer positions, and were thereafter issued warning © notices for. low production (Pet. ADD. A144-A155; R. 2273-2276, 2854-2855, 2860, 2865, 2158-2167, 2838- 2840, 2304-2306, 2298-2301, 2242, ‘2208-2212, 2249- 2253, 2262-2271, 2282-2290). } The Company also announced, through Weiss, that it would not pay vacation benefits to the strikers. Weiss said that the terms of the old contract (R. 2703) with respect to vacations were being applied. Under that contract, vacation pay was figured as a percentage of the employee’s yearly salary, but there 14 was a further provision that, if an employee missed _200 hours during the vacation year, he lost half, and ‘if he missed 280 hours, he lost all, of his vacation. Because of absences of. more than 280 hours, the Company thus disqualified for both 1965 and 1966, as regards vacation pay, all employees who had re- -mained on-strike throughout (Pet. App. A156-A158; *R. 1472-1476). | | ny On June 7, the parties held their twelfth formal bargaining session. Shapiro brought up the subject of piecework and asked if the Company “was willing. to agree in the contract that the Union-has the right ° to study a job in dispute by sending in its own time-. study man” (R. 1376). Weiss sail he thought the right to timestudy ‘was implied -in the Company’s proposed contract, but he was unable to point to a specific section (R. 1383-1384). When Shapiro asked why the contract could not explicitly state that the Union had this right, Weiss responded that addition- al language was “unnecessary verbiage” (R. 1387- 1388). When questioned further, Weiss said that the Company’s basic objection was that it did not want to give the Union any contract language which would allow the Union to avreck its standard hour system (R. 1389). an . Shapiro then asked if the Union had the right to - grieve on the establishment of a piecework standard. - Weiss said he did not know and refused to incorpo- rate this subject as a grievance item in the contract, on the ground the Union. could use it to undermine 15. the piecework system (R, 1400-1401). Union negoti- ator Weldon replied that this and many other unions _ * * © are satisfied with the principle of the in centive System. They aie willing to. agree to the principles of the incentive system, but they do not wish to give up all contractual safeguards over that incentive system. That is, in effect. - surrender all the power over wages to. the Com- pany—and this is just exactly what you ar seeking: [R. 1401.) eae Weldon then asked how the right to grieve over the establishment of a standard would wreck the system Weiss replied that such’ a grievance would suspend the established standard (R, 1410-1411). When the Union made clear that the standard w ould continue ‘in effect even after a grievance as to it was filed (R. (1412-1415), Weiss reverted to his former position that under the proposal the Union could file a griev- ance over every. standard a ae. AN105-A106; R. 1414-1416), a | Three more formal bargaining sessions were held, but they were equally unproductive (Pet. App. 107- 109, ALIB-ALL1).. At one of these sessions, Shapiro protested that the. ‘Company had unilaterally. promul- _ gated new work rules and publistied. them in booklets which were heing given to returning strikers, and that this had been done. without consulting the Union (Pet. App. A127-A128; R: 2922-2947). Company negotiators insisted that the ne w booklets contained no substantive changes (R, 1501-1510), but Shapiro pointed to numerous differences between the old and new rules (R. 1501-1510; compare R. 2922-2930 with R. 2930-2947). | } ; 16 B. The Decisions Below On these facts, the Board found that the jeaee had violated Section 8(a) (5) of the Act by manifest- ing overall bad ‘faith during the course of the negotia- tions (Pet, App. A135-A136).° The Board found that . the Company had further violated Section 8(a) (5)- by refusing to bargaih in good faith about piecework standards and grievance procedures (Pet. App. A117-A123) ; * by instituting work rule changes with- out notifying the Union (Pet. App. A127-A128); ‘and by refusing to supply the Union's timestudy mar with necessary data (Pet. App. A93-A94). The Board also found that the strike was caused and per- petuated by the Company’s unfair labdér practices; that the strikers were entitled to reinstatement when the strike was terminated; and that the Company had thus violated Section 8(a)(3) and (1) of the Act ‘when, on June 7,.1966, it refused to reinstate to their former positions most of the employees who had unconditionally offered to return to work (Pet. App. Al143-A150). Finally, the Board found that the Com- pany further violated Section 8(a)(3) and (1) by denying vacation benefits to the strikers (Pet: App. A156-A158), and. Section 8(a)(1) by issuing warn- * The Company's bad faith was shown by its insistence upon unilateral control over the fixing of piecework rates, while at the same time refusing to negotiate in good faith about a defi- . nition as to productivity «peed rating on the basis of which production standards would be established, refusing to in- corporate the definition agreed to in principle into a written agreement, and insisting that emplovees be denied the right _to file grievances over the establishment of production stand- ards (Pet. App. A1l18-A12%). 17 ing slips for low production to strikers who were reinstated to jobs not _— own (Pet. App. A150- A155). . The Board ordered the iia to cease and de- sist from insisting, as a condition to entering into an agreement with the. Union, “upon a provision depriv- ing the employees of their right to file grievances on the establishment of standards of piecework,” and “upon excluding from such agreement any definition or guiding principle as to productivity speed ratings on the basis of which production standards for piece- work are to be established”; from “[rJefusing to in- corporate into a written contract with ‘the. Union its agreement as to productivi ity speed ratings upon the basis of which production standards for piecework are to be established”; and from “in any other manner insisting, as a condition to entering into an agree- ment with the Union * * *, upon being given the right to fix the rates of pay of its piecework employees unilaterally” (Pet. App. A166-A167), The Board further ordered the Company to bargain collectively with the Union concerning terms and conditions of employment, “including a definition or guiding prin- . ¢iple to govern productivity speed ratings for piece- work standards, and embody any understanding ' yeached in a signed agreement” (Pet. App. A168- A169); to furnish the Union with information in its possession necessary-for the Union to make original timestudies or to check the Company's timestudies (Pet. App. A169); to offer full reinstatement to strikers. affected by the Company's unlawful refusal to reinstate, and make such employees whole for any 18 loss of earnings suffered by reason of such refusal (Pet. App. A169); to pay each striking employee the 1965 and 1966 vdeation pay due to him under the May 10, 1963, contract, disregarding for this pur- pose his absence from work between November 8, 1965, and June 3, 1966 (the period of the strike) (Pet. App. A169-A170); and to expunge from the Company’s records any warnings for low production issued following the strike to employees reinstated to jobs not their own (Pet. App. A170). The court of appeals sustained the Board’s iad and conclusions, as based upon substantial evidence, and enforced its order in full (Pet. App. Al-A11). ARGUMENT 1. The court below concluded that “there is ample evidence in the record to sustain the Trial Examin- er’s finding [which was adopted by the Board] that Tex Tan did refuse to bargain in good faith regard- ing the piecework standards and grievances, and that. its overall approach to-bargaining was not indicative _ of a good faith attempt to reach contract terms” (Pet. App. A4). Insofar as the petition seeks to challenge this conclusion, it presents only an evidentiary issue which does not warrant review by this Court. Na- tional Labor Relations Board vy. Amcrican National Insurance Co.; 343 U.S. 395, 409-410. Moreover, the facts summarized in the Statement (supra, pp. 3-15) show that the Board's findings are amply supported by the record.’ * Petitioner’s contention that the Board’s refusal to bargain finding is vulnerable because it rests, in part, on issues not 19 2. Nor is there merit to petitioner’s contention that the order entered by the Board is beyond its powers because it forces the Company to put matters in the contract which have never been agreed upon. The Board found that the Company unlawfully re- fused to bargain concerning piecework standards and grievance procedures by insisting upon unilateral con- trol over the fixing of piecework rates, while at the same time refusing to negotiate in good faith about the underlying principle which would govern the Com- pany in establishing production standards, and by in- sisting that employees he denied the right to file griev- _ ances over those standards (see note 4, supra). The negative provisions of the Boayd’s order (supra, p. 17) do not require the Company to agree to any par- ticular contract provision that had not already been agreed to,” but merely to cease and desist from con- tinuing to maintain the particular positions respect- ing production standards and grievance procedures which, in combination, constituted bad faith bargain- ing on the subject of piecewolk rates. alleged in the complaint (Pet. 17-18) likewise presents no issue warranting review. As the court below found (Pet. App. A7): “Both parties fully litigated the issue of good faith bargaining _Lindeed, the record is over 3,000 pages) and assumed that these issues were relevant and proper subjects of inquiry. ° In such a situation the Company has not been prejudiced by the failure of the complaint to articulate in precise detail each and every example of behavior which indicates that the Com- pany negotiated in bad faith.” ° * The Board found that the Company had agreed in principle with the Union that “[a]n operator working at normal speed is rated 100 percent” (Pet. App. A117-Al118). 20 Nor does the affirmative portion of the Board’s or- _ der (supra, pp. 17-18) require the Company to agree to any particular contract provision. It merely re- quires the Company to bargain in good faith. about terms and conditions of employment, “including a | definition or guiding principle to govern produc-_ tivity speed ratings for piecework standards,” and to “embody any understanding reached”—if there be one—‘‘in a signed agreement.” The order here is thus tctally dissimilar from that invalidated in H. K. Porter Co. v. National Labor Relations Board, No. 230, 1969 Term, decided March 2, 1970, which spe- cifically required the employer to grant the union a checkoff provision,-even though the employer had not agreed to such a provision in collective bargaining. As the court below correctly concluded (Pet.’ App. ‘A9): “The Board’s order does no more than require the Company to bargain in good faith and cease its surreptitious semantic ploys and maneuverings which frustrated any hope of agreement on a contract defi- nition which would be meaningful for purposes of determining whether a specific standard was fair * * *, Contrary to Tex Tan’s assertions the order only requires that any agreement reached be incorpo- rated into the contract. The Board did not attempt to dictate what the agreement might be.” This is fully consistent with the\ holding in H. J. Heinz Co. v. Na- tional Labor Relations Board, 311 U.S. 514, and the language in Section 8(d) of the Act (Pet. 4) to the _effect that the obligation to bargain collectively en- compasses “the execution of 2. written contract in- MBB 6 we eS et 21 corporating any agreement reached if requested by either party.” ’ ‘3. Petitioner’s challenge (Pet. 13-14) to the Board’s finding that the strike was attributable to the Company’s unlawful refusal to bargain presents another evidentiary issue which does not warrant fur- ther review. In this regard, the court below found that “there is substantial evidence in the record as a whole that it was Tex Tan’s refusal to bargain in good faith which prompted the workers to go out on strike” (Pet. App. A5). Nor is there merit to petitioner’s further conten- tion (Pet. 14-17) that the denial of vacation benefits to the unfair labor practice strikers did not constitute unlawful discrimination against the:strikers. As this Court held in National Labor Relations Board v. Great Dane Trailers, Inc., 388 U.S. 26, the denial of vacation benefits to strikers while paying such bene- fits to non-strikers is discriminatory and hence viola- tive of the Act, absent a substantial business justifi-. eation for the action. Here the ¥ourt of appeals prop- erly concluded that the Company had shown “no valid _7 Petitioner’s contention (Pet. 9) that the Board’s order— requiring it to “furnish the Union its written job descrip- tions in advance of timestudies by the: Union in connection with any grievances or in connection with the preparation for the negotiation of contract” (Pet. App. A167)—*requires the Company to rewrite a provision of its contract proposals” totally misconceives the basis for the Board’s order. Peti- tioner has a statutory obligation to provide the Union with sufficient information for the intelligent discharge of its func- tion as collective bargaining agent, and the order merely implements that obligation. See National Labor Relatioks Board v. Aeme Industrial Co., 385 U.S. 432. ; 22 business purpose for requiring a complete abrogation of vacation pay in addition to the proportional reduc- | ‘tion already built into the system,”* particularly since the strike was caused by the employer’s unfair labor practices (Pet. App. A10).° | CONCLUSION For the reasons stated, the petition for a writ of certiorari should be denied. Respectfully submitted. ERWIN N. GRISWOLD, Solicitor General: . ARNOLD ORDMAN, General Counsel, DOMINICK L. MANOLI, Associate General Counsel, Norton J. CoME, — Assistant General Counsel, LINDA SHER, Attorney, National Labor Relations Poard. APRIL 1970. * Vacation pay was figured as a ‘percentage of the wages earned (supra, p. 13). ° Roegelein Provision Co., 181 NLRB No. 72,.73 LRRM ° 1396, March 6, 1970 (Pet. Supp. 2) is distinguishable. There the strike was not provoked by the employer’s unfair labor practices, and the contract provision relating to loss of vacation benefits had recently been negotiated with specific knowledge _ by the union that it would apply to alsences due to the then pending strike, no less than to othér absences. wv. S. GOVERNMENT PRINTING Office. 1970 361527 606 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1437%3A4. Public record. Not legal advice.