Opposition — C. K. Smith & Co. v. National Labor Relations Board

uk ee

OCTOBER TERM, 1977

od

C. K. SmitH & Co., INC., ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

WADE H. McCREE, JR.,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

INDEX

Opinions below

Jurisdiction

Questions presented

Statement

Argument

Conclusion

CITATIONS

Cases:

Buffalo Forge Co. v. United Steelworkers

of America, AFL-CIO, 428 U.S. 397__

Gary Hobart Water Corp. v. National La-

bor Relations Board, 511 F. 2d 284,

certiorari denied, 423 U.S. 925 _..___

General Tire & Rubber Co. v. National

Labor Relations Board, 451 F. 2d 257.

Kellogg Company v. National Labor Rela-

tions Board, 457 F. 2d 519, certiorari

denied, 409 U.S. 850 as

Marshall Field & Co. v. National Labor

Relations Board, 318 U.S. 253 _.__.

Mastro Plastics Corp. v. National Labor

Relations Board, 350 U.S. 270

National Labor Relations Board v. Brown

& Root, Inc., 203 F. 2d 139

National Labor Relations Board v. Brown

& Root, Inc., 99 N.L.R.B. 1031

National Labor Relations Board v. Inter-

national Van Lines, 409 U.S. 48, re-

versing 448 F.2d 905

Page

an SS — =

5-6

7

5, 10

Cases—Continued

National Labor Relations Board v. L. G.

Everist, Inc., 334 F. 2d 312 _._______.

National Labor Relations Board v. Rock-

away News Supply Co., Inc., 345 U.S.

71

National Labor Relations Board v. Seven-

oY SS § 6S eee

National Labor Relations Board v. South-

ern Greyhound Lines, Inc., 426 F. 2d

ee Cy I diititalickatitieicinctnteiernenciiate

National Labor Relations Board v. Union

Carbide Corporation, 440 F. 2d 54,

certiorari denied, 404 U.S. 826

Newspaper Production Co. v. National

Labor Relations Board, 503 F. 2d 821_

Pilot Freight Carriers, Inc., 224 N.L.R.B.

341

Teamsters, Chauffeurs & Helpers Local U.

No. 79 v. National Labor Relations

Board, 325 F. 2d 1011, certiorari de-

nied, 377 U.S. 905

Winter Garden Citrus Products Coop. v.

National Labor Relations Board, 238 F.

2d 128 - Raa hsrary wert es Te ee

o-oo

Statute:

National Labor Relations Act, as amend-

ed, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.

151 et seq.:

Section 7, 29 U.S.C. 157 a

Section 8(a), 29 U.S.C. 158(a) __

Section 8(a)(1), 29 U.S.C. 158(a)

ec chairs

Page

10

3,4

Statute—Continued

“— 8(a)(3), 29 U.S.C. 158(a)

Section 8(a) (5), 29 U.S.C. 158(a)

ROSA TSUN Rae oa

Section 10(e), 29 U.S.C. 160(e) __

Page

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No, 77-1374

C. K. SMITH & Co., INC., ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

OPENIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

13a) is reported at 569 F.2d 162. The Board’s deci-

sion and order (Pet. App. 14a-77a) are reported at

227 N.L.R.B. 1061.

JURISDICTION

The judgment of the court of appeals was entered

on December 28, 1977. The petition for a writ of

(1)

2

certiorari was filed on March 28, 1978. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether employees who strike in support of

fellow employees who are striking to protest unfair

labor practices by their common employer are en-

titled to the same reinstatement rights as the primary

unfair labor practice strikers.

2. Whether the Board properly found that the

union did not contractually waive the employees’

statutory right to participate in an unfair labor

practice sympathy strike.

STATEMENT

1. Petitioner C. K. Smith Co., Inc., is a retail

seller and distributor of oil and related products.

Petitioner Buckley Heating Co., Inc., sells and dis-

tributes the same products at wholesale. (Pet. App.

30a.) The two companies share the same premises

and management, and the National Labor Relations

Board found them to be a single employer for the

purposes of the Act (Pet. App. 28a-29a). The court

of appeals upheld that finding (Pet. App. 3a-4a) and

petitioners do not challenge it here.

Petitioners’ retail and wholesale drivers were rep-

resented, in separate units, by Teamsters Local 170.

In March 1974, the union began an organizing cam-

paign among the mechanics at the Smith company

(Pet. App. 30a). The Board found that the com-

pany violated Section 8(a)(1) of the Act when, dur-

ing the course of the mechanics’ organizing campaign,

it engaged in coercive interrogation, promised bene-

fits if the union were defeated, and threatened an

employee with loss of work if the union were success-

ful (Pet. App. 42a-48a). The Board further found

that the company violated Sections 8(a)(1) and

8(a)(5) of the Act by withdrawing the recognition

that it had previously accorded the union in the

mechanics’ unit (Pet. App. 54a), and by bargaining

individually with retail driver unit employees while

contract negotiations for that unit were in progress

(Pet. App. 37a-38a). Petitioners did not dispute

those findings in the court of appeals (Pet. App. 4a).

After the company withdrew recognition from the

union, the six mechanic employees voted to strike

(Pet. App. 58a). The strike, which began on April

29, 1974, was joined by both the retail and wholesale

drivers (Pet. App. 33a, 56a). The Administrative

Law Judge, whose decision was adopted by the Board,

concluded that the strike was an unfair labor practice

strike, caused by the company’s various violations of

the unfair labor practice provisions of the National

Labor Relations Act, 61 Stat. 140, 29 U.S.C. 158(a)

(Pet. App. 65a) In addition, the Administrative Law

Judge found that the retail and wholesale drivers who

joined the strike did so “primarily in sympathy with

the strike of the mechanic employees” (ibid.). The

court of appeals upheld these findings (Pet. App. 5a).

2. On July 8, 1974, the strikers made an uncondi-

tional offer to return to work. Petitioners refused to

4

reinstate the mechanics, the wholesale drivers, and

one of the retail drivers, although certain wholesale

drivers were reinstated later (Pet. App. 66a-67a).

After complaints were filed and a hearing held, the

Board found that petitioners had violated Sections 8

(a) (1) and 8(a) (3) of the Act by refusing to rein-

state both the mechanics and the drivers who had

been on strike.

The Board held, first, that the drivers, as employees

of the same enterprise, acquired the status of unfair

labor practice strikers when they struck in sympathy

with the mechanics, who were clearly unfair labor

practice strikers (Pet. App. 65a). Second, the Board

held that the wholesale drivers had not violated their

contractual obligation not to strike because the terms

of the drivers’ contract did not “reveal a waiver of

the right to strike over unfair labor practices or to

strike in sympathy with other employees” (Pet. App.

62a-63a).

The court of appeals upheld the Board on both of

these issues. The court observed that a sympathy

striker resisting unfair labor practices may have more

at stake than a similarly situated economic striker.

An employer’s effort to oust the union from one unit,

the court noted, “could have deleterious effects on the

union’s prestige and the stability of collective bar-

gaining throughout the plant” (Pet. App. 8a). Since

sympathy strikers stand in the shoes of primary

strikers for purposes of lawful discipline and replace-

ment, the court concluded, “it seems equitable to

afford them preferential reinstatement rights where

such rights are granted primary strikers” (ibid.).

With respect to the no-strike clause in the drivers’

contract, the court held that the Board’s interpreta-

tion of the clause was supportable in light of the

principle that a no-strike provision is ordinarily co-

terminous with the duty to arbitrate. Since the dis-

pute between the mechanics and the employer could

not be the subject of a grievance under the wholesale

drivers’ contract, there was no duty to arbitrate, and

the no-strike clause did not bar the drivers from

engaging in a sympathy strike (Pet. App. lla).

Accordingly, the court of appeals upheld the Board’s

conclusion that petitioners had improperly refused

to reinstate the drivers when they made an uncondi-

tional offer to return to work.

ARGUMENT

1. It is well settled that employees who strike in

response to an employer’s unfair labor practices are

entitled to full reinstatement upon an unconditional

offer to return to work, even if permanent replace-

ments have been hired. Mastro Plastics Corp. v.

National Labor Relations Board, 350 U.S. 270, 278.

Similarly, employees who join a picket line established

by fellow employees at their common employer’s

premises are entitled to the same protection as strikers

under the Act. Gary Hobart Water Corp. v. National

Labor Relations Board, 511 F.2d 284, 287 (C.A. 7),

certiorari denied, 423 U.S. 925; Kellogg Company v.

National Labor Relations Board, 457 F.2d 519, 523

(C.A. 6), certiorari denied, 409 U.S. 850; National

Labor Relations Board v. Union Carbide Corporation,

440 F.2d 54, 55-56 (C.A. 4), certiorari denied, 404

U.S. 826; National Labor Relations Board v. South-

ern Greyhound Lines, Inc., 426 F.2d 1299, 1301 (C.A.

5). From these principles it follows that where the

primary striker and the sympathy striker have a

common employer, the sympathy striker has the same

reinstatement rights as the primary striker. News-

paper Production Co. v. National Labor Relations

Board, 503 F.2d 821, 830 (C.A. 5); General Tire &

Rubber Co. v. National Labor Relations Board, 451

F.2d 257 (C.A. 1); Pilot Freight Carriers, Inc., 224

N.L.R.B. 341, 342.

Petitioners argue that these principles should not

apply to sympathy strikers who support fellow em-

ployees in an unfair labor practice strike against a

common employer. The court below rejected that

argument, and, contrary to petitioners’ contention,

there is no conflict among the circuits on this issue.

Petitioners urge that the decision below conflicts

with that of the Fourth Circuit in National Labor

Relations Board v. Union Carbide Corp., 440 F.2d 54.

In that case, however, the court held that an employee

who declined to cross a picket line out of fear rather

than principle was not engaged in concerted activity

protected by Section 7 of the Act. In this case, by

contrast, the Administrative Law Judge found that

the reason the wholesale drivers struck was “pri-

7

marily in sympathy with the strike of the mechanic

empioyees” (Pet. App. 652). Petitioners did not ex-

cept to that finding before the Board, nor did they

contend that the finding was inadequate to establish

that the wholesale drivers were animated by principle

rather than fear. Petitioners are therefore precluded

from raising that contention here. 29 U.S.C. 160(e) ;

Marshall Field & Co. v. National Labor Relations

Board, 318 U.S. 253; National Labor Relations Board

v. Seven-up Co., 344 U.S. 344.

The other court of appeals decisions relied on by

petitioners are distinguishable from this case in that

in each instance the sympathy strikers worked for a

different employer than the primary strikers. Na-

tional Labor Relations Board v. L. G. Everist, Inc.,

334 F.2d 312 (C.A. 8); Teamsters, Chauffeurs &

Helpers Local U. No. 79 v. National Labor Relations

Board, 325 F.2d 1011 (C.A.D.C.), certiorari denied,

377 U.S. 905; National Labor Relations Board v.

Brown & Root, Inc., 203 F.2d 189 (C.A. 8).° Nor

does National Labor Relations Board v. International

Van Lines, 409 U.S. 48, reversing 448 F.2d 905 (C.A.

9), in any way support petitioners’ position here. In

that case, the Court held that since the employer had

committed an unfair labor practice when it dis-

1 Petitioners’ reliance on the Board’s order in the Brown &

Root case, 99 N.L.R.B. 1081, 1087, is misplaced. The Board

found that those sympathy strikers were represented by a

different union, which did not authorize their wildcat strike

in support of their fellow employees. And it concluded that

they were not affected by the company’s unfair labor practice

against the other union.

charged certain economic strikers prior to the time

replaced, the strikers were entitled to re-

on that ground alone. The Court found it

unnecessary to consider whether, as a theoretical

matter, the economic strikers were converted into un-

fair labor practice strikers at the time the employer

committed the unfair labor practice of discharging

them. 409 U.S. at 52-53. In any event, those strikers

were not sympathy strikers. Therefore, contrary to

petitioners’ assertion (Pet. 16), the question the

Court found it unnecessary to resolve has nothing to

do with the question presented in this case.

As the court of appeals coneluded (Pet. App. 6a), it

is the Board’s duty to balance the interests of striking

employees in the exercise of their Section 7 rights

against the employer’s legitimate business reasons for

replacing them. The Board has concluded that the

proper balance between business justification and

employee concerted activity requires that sympathy

strikers who support an unfair laber practice strike

involving a common employer be treated in the same

manner as the primary unfair labor practice strikers.

That resolution is consistent with the general treat-

ment under the Act of sympathy strikers and of

common employer situations, and petitioners have

presented no persuasive reasons for applying a dif-

ferent rule in this case.

2. Petitioners further contend (Pet. 25-32) that

the Board erred in holding that the no-strike provision

of the collective-bargaining agreement did not bar

the wholesale drivers from engaging in a sympathy

strike. This issue, turning largely upon the particu-

lar facts, does not warrant review by this Court. In

any event, the Board’s resolution of the matter was

correct and was properly upheld by the court of

appeals.

The wholesale drivers’ contract contained a general

no-strike clause. Since the dispute underlying the

primary strike could not be processed through the

wholesale drivers’ grievance machinery, and since

that machinery did not permit the company to obtain

an arbitral determination of its claim that the whole-

sale drivers’ sympathy strike violated the no-strike

clause, the court 'bdlew property sustained the Board’s

finding that the no-strike clause did not bar sympathy

strikes? Moreover, sven if the no-strike provision

were considered to be ambiguous, as petitioner con-

tends (Pet. 25-28), the Board and the court of ap-

peals (Pet. App. 10a-1la n. 2, 63a) found that the

bargaining history did not suport petitioners’ asser-

tion that the parties intended the no-strike provision

to apply to sympathy strikers at ie employer's

Yellen ational Labor Rédations Board v. Rockaway News

Supply Co., Inc., 345 U.S. 71, on which petitioners

rely, does not support their claim. That case involved

employees’ refusal to cross a picket line at another

employer’s premises; the Court found persuasive evi-

2 In Buffalo Forge Co. v. United Steelworkers of America,

AFL-CIO, 428 U.S. 397, by contrast, the final step of the

grievance procedure provided that a grievance “may be sub-

mitted to arbitration upon written notice of the Union or the

Company” (id. at 400 n. 2).

10

dence that the parties intended the contractual no-

strike clause to apply to such situations. Here, by

contrast, the Board and the court of appeals found

that the parties did not intend to proscribe sympathy

strikes against the common employer.

Finally, petitioners contend that the principles of

Mastro Plastics Corp. v. National Labor Relations

Board, 350 U.S. 270, requires reversal here. In Mastro

Plastics the Court held that even if employees os-

tensibly violated the terms of the collective-bargaining

agreement by engaging in an unfair labor practice

strike, the agreement would not readily be construed

as a waiver of the employees’ right to strike over un-

fair labor practices that undermined the collective-

bargaining relationship. Jd. at 283. Petitioners argue

that the unfair labor practices in this case were not

sufficiently flagrant to warrant application of the

Mastro Plastics doctrine.*

Since the Board found that the collective-bargaining

agreement did not bar the strike in question here, it

was not necessary for the Board to rely on Mastro

Plastics to uphold the strikers’ actions. In any event,

as the court of appeals held (Pet. App. 10a), Mastro

* Petitioners also reiterate their contention that there was

no causal connection between the unfair labor practices and

the drivers’ strike, and that therefore the strikers should

not have been reinstated. See Winter Garden Citrus Products

Coop. Vv. National Labor Relations Board, 238 F.2d 128 (C.A.

5). But, as we have noted, the Administrative Law Judge

found that the wholesale drivers struck in sympathy with the

mechanics, who were engaged in an unfair labor practice

strike, and petitioners did not challenge that finding before

the Board.

11

Plastics provides further support for the Board’s con-

clusion that the collective-bargaining agreement

should not be read as a contractual waiver of the

drivers’ right to engage in a sympathy unfair labor

practice strike in support of fellow employees.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

JOHN S. IRVING,

General Counsel,

JOHN E. HIGGINS, JR.,

Deputy General Counsel,

CARL L. TAYLOR,

Associate General Counsel,

NORTON J. COME,

Deputy Associate General Counsel,

LINDA SHER,

Associate General Counsel,

National Labor Relations Board.

May 1978.

Ww oc. 8. covennmenr reintine orrice; 1978 2esssi 20