# Opposition — C. K. Smith & Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0679%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 957 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0679%3A2. Public record. Not legal advice.