Reply Brief — J. P. Stevens & Co. v. National Labor Relations Board

| Suprema Court, §,

FILED

IN THE «FES 26 i978

Supreme Court of the United Mbtat ian ip CLERK |

OcToBer TERM, 1977

No. 77-726

J. P. Srevens & Co., Inc... and Juntor ANDERSON,

Mason Ler, ToMMy GarpNner. JAMES ALSTON, JARRY

Brrroveus, Harotp Gverry, Witttam Hinton, Ray

Masry, CHesteR Martix. Ep MircnhumM, ERNEST

Meapows, Dave Moopy, Vernon Payne, Troy Quick

Jimmy Martirx, Ropert Rawtitncs, Mack RENEGAR,

Max SHaver, Howarp Seiiers, ALLEN'SHEW, EUGENE

TayLor, JoHN THomas, RaymMonp THOMPSON,

Petitioners,

Ve

NATIONAL Lanor RELATIONS Boarp,

Respondent.

PETITIONERS’ REPLY BRIEF

CrarkK M. CLIFFORD

Carson M. Grass

JOHN G. CALENDER

Washington, D.C.

James W. Grapy, JR.

New York, New York

Wutitrrorp S. BLAKENEY

Charlotte, North Carolina

Attorneys for the Petitioners

Of Counsel:

CuirForp, Guass, McIuwain & FINNEY

815 Connecticut Avenue

Washington, D.C. 20006

BLAKENEY, ALEXANDER & MacHEN *

North Carolina National Bank Building

Charlotte, North Carolina 28202

Press or Brgon S. Adams PRintinc, Inc., WASHINGTON, D. C.

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INDEX

I 1

EE EE 10

TABLE OF AUTHORITIES

CasEs:

McComb v. Jacksonville Paper Co., 336 U.S. 187

eee asc ccosccescccuccsoecce 3

NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). 1

NLRB v. Johnson Manufacturing Co., 511 F.2d 153

(Sth Cir.), cert. denied, 423 U.S. 867 (1975) ..... 3

NLRB vy. Lynair, 380 F.2d 286 (6th Cir. 1967) ...... 5

NLRB vy. Schill Steel Products, Inc., 480 F.2d 586

ccc ecceccecceces 3

Union Tool Co. v. Wilson, 259 U.S. 107 (1922) ...... 3

United States v. Greyhound Corp., 370 F.Supp. 881

(N.D. Ill.), aff’d, 508 F.2d 529 (7th Cir. 1974) ... 6

CoNnSsTITUTIONAL Provisions:

Amendment V to the United States Constitution .. 2, 4, 10

STaTUTEs:

All Writs Act, 28 U.S.C. $165l(a) ................. 3

National Labor Relations Act ............. 2, 3, 4, 5, 6, 10

EEE EEE 4

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<n es a nee SA § ne =

IN THE

Supreme Court of the United States

OcToBER TERM, 1977

No. 77-726

J. P. Srevens & Co., Inc., and Junior ANDERSON,

Mason LEE, ToMMyY GARDNER, JAMES ALSTON, LARRY

BurroucHs, Harotp Guerry, WiLL1AM Hinton, Ray

Masry, CHESTER Martin, Ep MitcHuM, ERNEST

MeEapows, Dave Moopy, VERNON Payne, Troy QUICK,

JIMMY MarTIN, Ropert Rawiinos, Mack RENEGAR,

Max SHaver, Howarp SELLERS, ALLEN SHEW, EUGENE

Taylor, JOHN THOMAS, RAYMOND THOMPSON,

Petitioners,

Vv.

NATIONAL LaBor RELATIONS Boar,

Respondent.

PETITIONERS’ REPLY BRIEF

The Brief in Opposition filed by Respondent does

not dispute Petitioners’ contention that this case poses

novel and important questions regarding the extent to

which a court’s contempt power may be used to in-

fringe upon an employer’s fundamental right to con-

trol the use of his property. Indeed, the Brief in Op-

position illustrates the extent to which Respondent

will continue to advocate the imposition in contempt

proceedings of orders granting nonemployee union

representatives access to an employer’s plants and

facilities despite this Court’s holding in NLRB v.

Babcock & Wilcox Co., 351 U.S. 105 (1956). Further-

more, Respondent does not establish that the order of

2

the Court of Appeals comports with Rule 65(d) of the

Federal Rules of Civil Procedure and the due process

clause of the Constitution. Accordingly, Supreme

Court guidance is required to define the limitations on

a court’s power in civil contempt proceedings arising

from violations of a court’s order enforcing the Na-

tional Labor Relations Act.

Furthermore Respondent’s Brief presents this case

as if it were run-of-the-mill labor litigation in which

unexceptional directives have been imposed on d. F

Stevens & Co., Inc. (‘‘Stevens” or “the Company’”’)

to remedy clearly established offenses. This case is, on

the contrary, quite the opposite in both of these funda-

mental respects. Its directives are of extraordinary

severity and, in important part, unprecedented. And

the offenses which purportedly justify such directives

cannot in any respect fulfill the clear and convincing

standard essential to support a contempt determina-

tion.

Respondent alleges that Petitioners are ‘‘foreclosed”’

from challenging the power of the Court of Appeals

to issue an access order that infringes on an employer’s

right to control the use of his property because such

an argument was not made in the Court of Appeals.

Respondent, however, has overlooked that portion of

the ‘‘Counter-Statement Regarding Terms of Court

Order,” submitted by Petitioners in the Court of Ap-

peals, in which Petitioners specifically objected to the

imposition of the access provisions:

The simple and realistic fact is that under the

Board’s provisions for the ‘‘non-work areas’’ of

these plants, the Company would have lost the

ability to manage the operations of its plants as

truly as if the plants had been taken away from

the Company by court order.

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3

Moreover, Respondent claims that because the order

of the Court of Appeals is based upon the civil con-

tempt power, the Court of Appeals properly ignored

the constraints imposed by the National Labor Rela-

tions Act. Indeed, Respondent argues that a court, in

seeking to enforce comnliance with the National Labor

Relations Act by its contempt power, may properly

infringe on an employer’s right to control the use of

his property even though this right is protected under

the National Labor Relations Act.* Given the impor-

tance of this issue to labor-management relations, it is

essential that this Court delineate the restraints on a

court ’s civil contempt power in cases arising under the

National Labor Relations Act.

Respondent’s reliance on two cases from the Fifth

Circuit to support the propriety of the Court of Ap-

peals’ access edict does not generate support for Re-

spondent’s position in this Court. In neither NLRB

v. Johnson Manufacturing Co., 511 F.2d 153 (5th

Cir.), cert. denied, 423 U.S. 867 (1975), nor in NLRB

v. Schill Steel Products, Inc., 480 F.2d 586 (5th Cir.

1973), was this Court asked to review those portions of

the orders that granted nonemployee union represent-

atives access to the employers’ plants and facilities.

These cases can hardly be relied on to justify the vast

° Respondent has ignored the legal doctrine stated in the Peti-

tion that while ‘‘[t]he measure of the court’s power in civil con-

tempt proceedings is determined by the requirements of full

remedial relief,’’ McComb v. Jacksonville Paper Co., 336 US.

187, 193 ( 1949), the terms of such relief must protect public and

private rights and abide by ‘‘well-settled principles of law.’’

McComb, supra, at 191; Union Tool Co. v. Wilson, 259 U.S. 107

112 (1922). Indeed, the All Writs Act, 28 U.S.C. § 1651(a), cited

by Respondent to support its position, requires that all writs issued

by a court be ‘“agreeable to the usages and principles of law.’’

4

incursion on an employer’s right to control the use of

his property which Respondent is seeking here.

Further, there is no basis for Respondent to describe

as ‘‘speculative fear’’ Petitioners’ concern that the

‘ aecess order will deprive an employer of the right to

manage his operations in an efficient and peaceful man-

ner. (Brief in Opp., note 9 at 11) Implementation of

the order will permit professional union organizers to

solicit continually employees in the ‘‘non-work”’ areas

of the plant. Moreover, because Paragraph 14 of the

order requires the Company to provide union orga-

nizers with the names and addresses of a!] its employees

in North and South Carolina, implementation of the

access order will insure that every employee of the

Company will be constantly approached by profes-

sional union organizers during the employee’s working

hours, during the employee’s breaks, and during the

employee’s non-working time spent at home. Indeed,

implementation of the order could infringe on an em-

ployee’s right to refrain from organizational activities

as guaranteed by Sections 7 and 8(b)(1)(A) of the

National Labor Relations Act.

Petitioners also take issue with Respondent’s con-

tention that there is no basis for finding the order of

the Court of Appeals to be so vague as to be violative

of Rule 65(d) of the Federal Rules of Civil Procedure

and the due process clause of the Constitution. It is

interesting to note that Respondent does not attempt

to define the meaning of the term ‘‘reasonable’’ as used

throughout the Court’s order. Having proposed this

order, Respondent should be able to indicate with

specificity the meaning of a mandate permitting a

“reasonable” number of union representatives ac-

cess for ‘‘reasonable’’ periods of time to the non-work

areas in the Company’s plants. Instead, Respondent

5

argues that the term “reasonable” is found in nu-

merous court orders under the National Labor Re-

lations Act. Analysis of the cited cases reveals that

many of the court orders do not even use the term “‘rea-

sonable.’’ Moreover, in one instance where the term

‘reasonable’? was used in a court’s order, the court

was able to refer to prior cases that specifically inter-

preted the meaning of the word ‘‘reasonable”’ as used

in the order. NLRB v. Lynair, 380 F.2d 286 (6th Cir.

1967). Finally, none of the cases cited by Respondent

can be compared with the instant case where the Com-

pany is threatened with massive fines and the issuance

of writs of body attachment against its officers and

agents for noncompliance with an order that defies

specific interpretation.

Respondent further argues that the “use of the

qualifying term ‘reasonable,’ if anything, should af-

ford the Company greater latitude in the good faith

management of its affairs.”” (Brief in Opp. at 12)

Indeed, it is this very ‘“‘latitude”’ that will serve as an

invitation to the union to challenge on every occasion

the conduct of the Company, which could result in a

finding that good faith action on the part of the Com-

pany was not ‘‘reasonable’’ and constituted a ‘‘con-

tinuing violation’’ of the Court’s order.

The vagueness of the Court’s order is further com-

pounded in that the Court of Appeals has imposed ex-

cessive ‘‘compliance fines’’ upon the Company in the

amount of $100,000 for each violation and $5,000 per

day for each day the violation continues. Respond-

ent contends that these compliance fines are not ex-

cessive and are in fact comparable with compliance

fines imposed in other civil contempt cases. (Brief in

Opp., note 14 at 15) Yet of the cases cited by Re-

spondent in support of this argument, one case in-

volved a criminal contempt fine and is therefore sup-

portive of Petitioners’ position that the compliance

fine is punitive. United States v. Greyhound Corp.,

370 F.Supp. 881 (N.D.II.), aff’d, 508 F.2d 529 (7th

Cir. 1974). However, of more importance, the civil con-

tempt cases cited by Respondent threatened imposi-

tion of compliance fines for noncompliance with precise

directives from the courts. None of the cases required

the contemnors to conduct certain activities in an un-

defined ‘‘reasonable’’ manner, as required by the or-

der of the Court of Appeals.

Finally, Respondent’s Brief summarizes the various

incidents which led to the findings against the Com-

pany as though such incidents were indisputable vio-

lations of the National Labor Relations Act consti-

tuting “clear and convincing” evidence of contempt

and deserving of the drastic sanctions imposed by

the Court of Appeals. The Petitioners are well aware

that this Court cannot analyze and weigh evidence

in order to determine what is the correct version of a

factual controversy. However, Respondent’s treatment

of the facts underlying the decision of the Court of

Appeals cannot be left unchallenged.

Respondent refers to three incidents that occurred

at the Company’s plant in Turnersburg, North Caro-

lina, as a “campaign of interference with the statu-

torily-protected solicitation and distribution activities

of seven employees on the eve and day of a Board elec-

tion at the plant.’’ (Brief in Opp. at 6) In all three

incidents, employees who were distributing leaflets on

the Company’s property were asked to distribute the

leaflets off the premises. The employees involved in

these incidents were neither reprimanded, discharged

7

nor “written up’’ for these activities. (Pet. App. at

50a) The Special Master found this conduct contempt-

uous because the Company had no specific rules pro-

hibiting these activities and the Company on earlier

occasions had condoned the sale of merchandise in the

plant and also had permitted solicitation on the prem-

ises for sick employees and families of deceased em-

ployees. (Pet. App. at 47a) In fact, in one of the three

incidents the Company was held in contempt for re-

questing that leafletting in the plant on the day of the

election be ceased even though an agent of the Na-

tional Labor Relations Board who was observing tlie

election subsequently required that the distributors of

the literature be asked to leave the premises because

leafletting was not permitted on the day of the elec-

tion. (Pet. App. at 46a)

Respondent also states that the Company placed an

electronic eavesdropping device in the motel room of

a union organizer and monitored the meetings between

the union organizer and Company employees. (Brief

in Opp. at 6) Two employees were indicted for this

incident, but after trial the United States District

Court directed an acquittal. A third employee was

found by the Special Master not to have been involved.

No other person in the Company’s management was

charged by any law enforcement official or by the

Respondent as having had any involvement in the

matter. The Court of Appeals found that the Company

repudiated such conduct in a timely and unequivocal

manner but that its repudiation was deficient because

it failed to indicate that the Company would make

no use of any information it might have obtained from

the eavesdropping—a conclusion which could properly

be considered to be inherent in an unequivocal re-

pudiation. The Court of Appeals concedes that “the

facts are close,’’ but that the Company’s ‘‘anti-union

background’’ was a factor in tipping the balance. (Pet.

App. at 15a)

With regard to the incident involving employee

Jimmy Grooms, which Respondent characterizes as a

discriminatory reprimand (Brief in Opp. at 6), Re-

spondent ignores the fact that Grooms was ordered

to stay especially close to his machine to prevent the

production of inferior cloth. (Pet. App. at 51a) Grooms

was later found to be wandering away from his ma-

chine, and was reprimanded. Yet because of Grooms’

past union activities, the Special Master held that this

reprimand was in contempt of the Court’s prior de-

cree. (Pet. App. at 52a)

Respondent has also misrepresented the incidents

at the Roanoke Rapids, North Carolina plants of

Stevens. Respondent claims that the Company ‘‘co-

ercively polled’’ all of its employees at these plants to

determine if they thought a union would “‘help”’ or

‘*hurt’’ them. (Brief in Opp. at 6) The polling, con-

ducted by means of an employee opinion survey, is

misinterpreted by Respondent as a surveillance of

the employees’ union activities. Respondent further

accuses the Company of misrepresenting the result in

a posted notice. The survey, conducted by an outside

professional group hired by the Company, contained

48 questions, of which only one dealt with employees’

attitudes toward the union. The answers by any given

employee were not identifiable by the Company and

the employees were not required to participate in the

survey. The notice, which dealt only with the one ques-

tion concerning the union, was posted at the insistence

of Respondent. With regard to the claimed misrepre-

sentation, the Special Master stated that the Com-

pany’s version of the result was “reasonably accurate

if supervisory personnel ar. added.” (Pet. App at

83a) Although these supervisory individuals were at

all times included in the survey, the Special Master

found that because there appeared to be a misrepre-

sentation ‘‘in the eyes of the average non-supervisory

employee,’’ Stevens had interfered with the em-

ployees’ right to self-organization as required in a

prior decree. (Pet. App. at 83a)

Respondent’s assertion that the Company discharged

employee Crystal Lee Jordon because of her union

activities (Brief in Opp. at 7) ignores-the Special

Master’s statement that it was likely this employee

may have been fired because of her ‘‘shrill conduct.”’

(Pet. App. at 74a) Nevertheless, the Special Master

still found ‘“‘clear and convincing” evidence that she

was fired because of ner union activities. With regard

to Respondent’s statement that supervisor Vernon

Payne coercively interrogated employee Linda Wil-

liams (Brief in Opp. at 7), the Special Master found

that the supervisor involved spoke to this employee

regarding complaints made by other employees about

Williams’ ‘‘bothering’’ and ‘‘harassing’’ them. (Pet.

App. at 76a) Again, because the employee involved

was a union supporter, the Special Master found

“clear and convincing”’ evidence of interference with

an employee in the exercise of her right to organize

or to assist the union. The Special Master made no

finding of a coercive interrogation with regard to this

incident, as Respondent claims.

These examples are representative of the incidents

which the Respondent and the Court of Appeals con-

sider as constituting ‘‘clear and convincing’’ evidence

of contemptuous conduct, and which have led to the

10

imposition by the Court of Appeals of remedies of the

enormous severity delineated by the Company in its

Petition.

CONCLUSION

This brief analysis of the procedures used to justify

a finding of contempt illustrates the need for Supreme

Ceurt guidance on the proper interpretation and ap-

plication of the clear and convincing standard in civil

contempt proceedings. This guidance is especially nec-

essary here where a court has imposed penalties and

sanctions which are disproportionate in both magni-

tude and severity. Finally, this Court should consider

whether a court may infringe on an employer’s right

to control the use of his property in a civil contempt

proceeding arising under the National Labor Relations

Act and whether an order so dependent upon the fre-

quent application of a “reasonable” standard and

which threatens massive compliance fines and writs

of body attachment is violative of Rule 65(d) of the

Federal Rules of Civil Procedure and the due process

clause of the Constitution.

Respectfully submitted,

CiaRK M. CLIFFoRD

Carson M. Guass

JOHN G. CALENDER

Washington, D.C.

James W. Grapy, JR.

New York, New York

Wuirterorp S. BLAKENEY

Charlotte, North Carolina

Attorneys for the Petitioners