Petitioners Reply Brief — GAIU Local 13-B, Graphic Arts International Union v. National Labor Relations Board

Supreme Court, U.S,

FILED

JAN 26 1983

No. 82-418

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

>

GAIU LOCAL 13-B, GRAPHIC ARTS INTERNATIONAL UNION,

Petitioner,

—

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

REPLY BRIEF

———_eeeeeeee_

RALPH P. KATZ

DELSON & GORDON

230 Park Avenue

New York, New York 10169

(222) 661-9800

Counsel for Petitioner

TABLE OF CONTENTS

REPLY WITH RESPECT TO THE FIRST ISSUE PRE-

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PAGE

TABLE OF AUTHORITIES

Cases:

American Federation of Musicians of the United States

and Canada v. Carroll, 391 U.S. 99 (1968) .........

American Newspaper Publishers Assoc. v. NLRB, 344

Bs web ccccdaccosedscdsededecsbsiect

American Newspaper Publishers Assoc. v. NLRB, 193

ee CP PE CE ccc ce ctcemise cccuseveveds

Carroll v. American Federation of Musicians of the

United States and Canada, 372 F.2d 155 (2nd Cir.

Carroll v. American Federation of Musicians of the

United States and Canada, 241 F.Supp. 865

RT RS eee

Glasser v. NLRB, 395 F.2d 401 (2nd Cir. 1968)........

1AM, Local Lodge No. 504 (Arrow Developnient Co.),

Fe Se ka esstdcsbunties\enavbéate

Local 248, UAW (Allis-Chalmers Mfg. Cc ), 149 NLRB

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967)

NLRB v. International Longshoremen’s and Warehouse-

men’s Union, Local 13, 581 F.2d 1321 (9th Cir. 1981)

Printz Leather Co., 92 NLRB 1312 (1951)............

Scofield v. NLRB, 394 U.S. 423 (1969)...............

PAGE

PAGE

Statutes:

National Labor Relations Act, as amended

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Section 8(b)(1 (A), 29 U.S.C. § 15S8(b) IMA)... ... 5, 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-418

>

GAIU LOCAL 13-B, GRAPHIC ARTS INTERNATIONAL UNION,

Petitioner,

—_Vi—

NATIONAL LABOR RELATIONS BOARD,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

>

REPLY BRIEF

REPLY WITH RESPECT TO THE

FIRST ISSUE PRESENT"

The National Labor Relations Board (NLRB) seeks to avoid

a determination of the first of the two issues preseated in this

case by asserting that the issue is not properly before the

Supreme Court because it was never raised before the NLRB.

This argument is now presented for the first time. The opinion

of the Court of Appeals in this case (App. A to petition) shows

that it was not raised there. The NLRB itself understood that

the issue was before it, and ruled on the very proposition which

the government now asserts was not raised. The NLRB held

2

that “the repeated refusal of emplicyees to perform mandatory

assigned overtime work is unprotected by the Act because it

constitutes a recurring or intermittent partial strike.” (App. B

to petition, p. 27a footnote 14 omitted; see also App. B, p.

29a, paragraph numbered 3; and App. B, p. 30a, paragraph

numbered 1(a)) Indeed the first issue raised in the petition, a

questioning of the determination that strikers are unprotected

when they engage in a partial strike under circumstances where

they would have been protected had they engaged in a fuli

strike, is the cornerstone of the NLRB’s decision, its conclu-

sion of law, and its order.

Moreover, the transcript of the record before the NLRB

includes an opening statement by counsel for GAIU Local

13-B, Graphic Arts International Union (Union) which, al-

though not a model of clarity, directly presents the first issue

made to this Court on this petition, namely: that partial

strikers should be given the same protection that full strikers

would be given in the same circumstances. Thus, the opening

statement reads:

“MR. DUBIN: Yes. We intend to show, simply because

there was only a partial strike, let us call it that, makes no

difference. The activity, if it were concerted protected

activity, there’d be no unfair labor practice charge against

this union. If this employer committed an unfair labor

practice or several, and the union went out on an unfair

labor practice strike, there would be no charge against the

union. But, because the union shows [chose] as its self-

help remedy not to engage in a complete strike, but only

to engage in something less than that, it’s facing these

charges.

“Our intent will be to show that this distinction really

doesn’t make much sense in this proceeding. If the union

really has no other choice, sure it can file a charge and it

did file a charge, and the resolution of that charge is

months off, as this case shows, what does the union do

the first month when it’s faced with unfair labor prac-

3

tices? What does it do the second month it’s faced with

unfair labor practices? It has to do something.

“It shows [chose] a lesser measure than a complete

strike and is facing charges as a result of it, and we don’t

see the distinction. That’s our case.”

Therefore, on the record before the NLRB and on the basis

of the decision of the NLRB, it is shown that this belated

assertion, which was never raised before the Court of Appeals,

is incorrect. The issue was before the NLRB and is properly

before this Court.

Except for this incorrect assertion, the NLRB offers no

reason why this Court should not finally rule on this issue. It is

time for the matter to be decided, for both labor and manage-

ment should have the definitive statement of the law which

only this Court can provide.

REPLY WITH RESPECT TO THE

SECOND ISSUE PRESENTED

Likewise with respect to the second issue raised: the state of

the law is unsettled and guidance from this Court is necessary

for passage through what are now conflicting guideposts.

Some evidence of the unsettled state of the law is found from

the fact that the Union and the NLKB are both citing the same

decisions of this Court to support their respective positions.

The Union relies on the results reached and the language as

applied and as limited by the Court itself in its decisions. The

NLRB relies on 2 broad interpretation of the language of the

majority while repeating the arguments made in the dissents.

In cases where this Court did not find any union violation,

the Court wrote: “Congress did not propose any limitations

with respect to the internal affairs of unions, aside from

barring enforcement of a union’s internal regulations to affect

a member’s employment status.” NLRB vy. Allis-Chalmers

Mfg. Co., 388 U.S. 175, 195 (1967); quoted in Scofield v.

4

NLRB, 394 U.S. 423, 428, (1969) But this language, so far as

our research shows, has never been applied by this Court to

hold that a union has violated the law by enforcing an interna!

rule because that rule affected an employee’s employment

status. The NLRB has not cited such a case. A careful reading

of the language in A/lis-Chalmers, especially as elaborated on

in Scofield at 394 U.S. at 428, reveals that this Court, in

writing of “barring enforcement of a union’s internal regula-

tions to affect a member’s employment status” (emphasis

added) had in mind the distinction between “internal from

external enforcement”, (emphasis added) and not the sub-

stance of the rule itself.

Thus, the case cited by the NLRB in its brief in opposition to

the petition in this case, Printz Leather Co., 92 NLRB 1312

(1951), is cited by this Court in Scofield, 394 U.S. at 429 ftnt.

5, not for the proposition that the union rule itself constituted

a violation of the law; but for the proposition that the union’s

enforcement of the rv.le by compelling an employee’s discharge

from his employment constituted the violation. See NLRB v.

International Longshoremen’s and Warehousemen’s Union,

Local 13, 581 F. 2d 1321 (9th Cir. 1981).

In this case, the Union’s sole efforts to enforce its rule were

precisely those employed in A/lis-Chalmers, a fine and 1

attempt to effect collection of the fine by bringing legal

proceedings in a court of law. Thus, the NLRB and the court

below in this case miscited A/llis-Chalmers and Scofield and

strayed from this Court’s specific approval, in Scofield at 394

U.S. at 428 ftnt. 4, of the position “that § 8(b)(1)(A)’s legisla-

tive history requires a narrow construction. . .”. There is,

therefore, a clear ¢ tinction between the Printz Leather Co.

case and the one now before this Court.

In American Newspaper Publishers Assoc. v. NLRB, 344

U.S. 812 (1952) granting certiorari as to one issue only, this

Court declined to review that part of the decision at 193 F. 2d

782 (7th Cir. 1951) which held that it was not a violation of

Section 8(b)(1A) (29 U.S.C. § 158(b)(1)(A)) for a union to

5

enact and enforce a rule affecting an employee’s employment

status. The rule in that case prohibited a member from accept-

ing employment with an employer who employs non-union

employees.

See American Federation of Musicians of the United States

and Canada v. Carroll, 391 U.S. 99 (1968) where, on review of

Carroll v. American Federation of Musicians of the United

States and Canada, 372 F. 2d 155 (2d Cir. 1967), this Court

affirmed, in an entirely different context, the decision in

Carroll v. American Federation of Musicians of the United

States and Canada, 241 F. Supp. 865 (U.S.D.C., S.D.N.Y.,

1965) and the numerous internal union rules in that case which

directly affected the employment status of employees. (See

findings of fact 92, 93, 105, 106, 107, 114 and 127 at 241 F.

Supp. at 879, 880 and 881 respectively.)

In view of the foregoing, and of other decisions such as

Glasser v. NLRB, 395 F. 2d 401 (2nd Cir. 1968) which approve

internal union rules directly affecting an employee’s employ-

ment status, we ask this Court to resolve the apparent inconsis-

tency between the circuits and within the Second Circuit and to

settle the law.

The NLRB in its brief in opposition also relies on the dictum

in Scofield v. NLRB, 394 U.S. at 429 which states that “if the

rule invades or frustrates an overriding policy of the labor laws

the rule may not be enforced. . .” In so doing, the NLRB rests

not on the holding but rather echoes the dissenting argument in

Allis-Chalmers, 388 U.S. at 203 which was adopted by refer-

ence as the dissent in Scofield, 394 U.S. at 436.

The dissent by Mr. Justice Black in Allis-Chalmers presents

precisely the position taken by the NLRB in this case, a

position which can be argued in every union rule case, and

therefore a position which, if accepted, will entirely vitiate the

meaning as determined by this Court of the proviso to Section

8(b)(1)(A). The dissent in Allis-Chalmers reads in part: “Con-

trary to the Court, I am not at all ceriain that a union’s right

under the proviso to prescribe rules for the retention of

6

membership includes the right to restrain a memver from

working by trying him. . .and fining him for exercising his § 7

right of refusing to participate in a strike,. . .”. 388 U.S. at

203.

This argument, that the union rule violates the policy of the

law by frustrating an employee’s Section 7 rights, is a refrain

found in dissenting opinions, JAM, Local Lodge No. 504

(Arrow Development Co.), 185 NLRB 365, 369 (1970); Local

248, UAW {(Allis-Chalmers Mfg. Co.), 149 NLRB 67, 73

(1964); Local 283, UAW (Wisconsin Motor Corp.), 145 NLRB

1097, 1107 (1964). As the NLRB has repeatedly recognized

that: “In a sense, virtually all union rules affect a member’s

employment relationship.” Local 283, UAW (Wisconsin Motor

Corp.), 145 NLRB at 1104; Local 248, UAW (Allis-Chalmers

Mfg. Co.), 149 NLRB at 70; JAM, Local Lodge No. 504

(Arrow Development Co.), 185 NLRB at 368 (1970), it can also

be said that: “In a sense, virtually all union rules impinge on a

member’s statutory rights.”

This Court has rejected the position of the dissenters and it

appears to have construed the proviso to Section 8(b)(1)(A)

differently from the NLRB and the court below in this case.

This Court has found that an internal union rule, internally

enforced, which deprives a union member of the opportunity

to refrain from the concerted activity of a strike, so long as he

remains a member, does not frustrate or invade an overriding

policy of the labor law.

In this connection, we note that the brief in opposition to the

petition wholly ignores a central point in this case, namely:

that the decision of the court below appears to run directly

counter to three fundamental policies set forth in the Federal

laws as written by Congress and as expounded by decisions of

this Court.

7

CONCLUSION

This case provides a vehicle to help defir« te law, resolve

Open questions, set to rest apparent decisiona: inconsistencies,

and harmonize policies established by the Congress in the

various Federal labor acts, basic policies which appear to be

undermined by the decision below.

Respectfully submitted,

RALPH P. KATZ

DELSON & GORDON

230 Park Avenue

New York, New York 10169

(212) 661-9800

Counsel for Petitioner