Brief for the Respondent in Opposition — Simmons v. Washington ex rel. Carroll

7 Toa dk wees ~ Department of Tacs,

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Ocronen Tuam, 1962

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- Paonesi Gents Company, OF ‘Dexawane,

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ON , PREITION FOR A WRIT OF CERTIORARI TO°THE UNITED

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OPPOSITION

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INDEX

Page

Opinions below. 2.0.0.2... cece bere eee e renee eeennasens i

Jurisdiction Peco VPP REC ETT rE eek * ee 2

(Question presented .........---. pas nee eh eS oi pot aie ke me 2

Minteln tauelvee Os. cc ees cee nee cee eee en er 3g 2

a ee PRAY TEP EOC CETTE EE TEE TOS a 2

o i ° ad

Argument ..—. ece1-+ oat Lops ges sb wens navesnevureants 12

Contiiiion ©... 05. ssvresese (UKsgicdeeweweheprevecoupe ses 1

Appendix .........- Sak GEC en ees Pee Ea Pee ere 14

ae i ° |

P : CITATIONS t

(CASES: 2

Rergeryv United States. ee tL ee oS a ie eee a ey a iais 13 7

Coyle Lines 8. United Stat#s, WA F. Supp. 272 .........- > 413

“National Labor Re lations Board v, Sharples Chemicals, Ine.

Se WE PO iar Fa iw a ies Oi gt eee ae kee 12

National Labor Relatious Board v ., State a Air r Warchouse,

oe ae” 2! San errr were ere Teer er rere s 12

_ Sotthern Railway Co. v. Unita States, 730 F. Supp. oe. ae

Tumeyev. Ohio, BTR US. SVD ec ce nee ete eens 13

‘United States v. Pieree Muto, Lines, 327 2 2 eet a 12

Universal Camera Corp. v. National labor Relations Board,

eS eae ed err Or Tek ery eae ee. 12

_ STATUGES: t oe ’ ¥

* National Labor Relations Act, as ametided (61 Stat. 136, 73

Stat. 519, 20 USC. 151, ef seq):

Gection 2 o55ck os cee see wsisae are eee sae aes Sie

Section &(a) (15 any Exe Nh cis Vo eae da ee ee alee 11, 14

* Administ rative Proeedure Act. Section ba | b) {% Us vs R

kk eee rrr re rrr rrr rr rrr Seer yr 12

MISCELLANPOUS: : , :

“Attorney Generidl’s Manual on the Administrative Procedure

Bist OG LIOET) cic abacee secre vdneereaveenneee ye Pet 12

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Inthe Supreme CE ourtef the Gnited States

Ocroper Tero, 1962

2

——-———-—

e* No, 1056

TreMBULL Asruanr Company or DeLAWarE,

Petitioner

= VT,

NatioNaAL Lanok RELATIONS Boanp

ON PETITION FOR A WEHIT OF CF RTIOLART TO THE UNITED

STATES COURT OF APTE ALS Fok THE SEVENTH CIRCUTI

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

‘ OPINIONS BELOW

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

Sa) is reported at O14 BL 2d O82. The Decision and

Order of the National Labor Relations Board) (PoA.

40-145)" are reported at 156 NLRB Dt.

ves P 4 ee refers hees ape te the apoyy mix to pet itiernye r’s brief and

“PEA references are to the appendix to the Bourd’s brief. in the

eourt below,

(1)

JURISDICTION

The judgment of the court of appeals was entered

on Mareh 26, 1965 (Pet. App. 4a-9a). The petition

for a writ of certiorari was filed on April 26, 1965,

The jurisdiction of this Court is invoked under 2s

USC, 125444.- ete

QUESTION PRESENTED

Whether substantial evidence supports the Board's

findings that petitioner, in violation of Seetions S(a)

(1) and (3) of the National Labor Relations Act,

coerced and restrained its emplovees in the exercise

of their organizational rights, and discriminated

against employees because of their union membership.

STATUTE INVOLVED

The pertinent provisions of the National Labor Re-

lations Act are set forth in the Appendix, iufre,

p. 14.

STATEMENT

A. The Board's Findings of Fact

1. Interference, restraint and coercion

The Uniow started an organizing campaign among

petitioner’s employees in’ August 1960; unien cards

and usien buttons were distributed and organizational

meetings were held (PLA. 53; 162. 163-165, 2oe-2o2,

POT IS IMO FIT, DAT). On October 14, 1960, a ma-

jority of the emplovees, ina Board-condueted election,

selected the Union as their representative (PLA. 54-

4, B.A. 22-36).

= Warehouse and Mail Order Employees Union, Loeal 743, Inter-

national Brotherhood of Teamsters.

2 J

’

Two days before the election, Plant Manager Miller

remarked to Kubiak, the Union's chief steward, 1

hear vou are one of those C.LO. bastards.” and added

that Kubiak would be out ef a job-if the Union were

to lose the election CPLA. 61; 517-518, 627). On the

same day Shop Forergan Bonow told two employees,

James Harris and L. T. Prince, that if they voted for

the Union they would be out of work CPLA, 66; 564-

965). About a week after the eleetion Miller told em

plovee Jackson, You are one of those G— d— ©.1.0.

bovs. You won't be here long’ (P.A. 117-118; 489).

On election day petitioner's assistant plant sapehign,

tendent, Jandak, offered an employee £10€ tor vote!

against the Union, and teld employees Jones att

Steele that Miller iad a diteh to put them in if) the

Unien won the election (PLA. 47, 67-68, 71: 574-576).

After the election, Pounovich, petitioner’s vard fore-

man, told Harris and Prince that they should not have

voted the Union in, and that Miller was going to lay

then off or make them quit (PLA. 66-67; 498).

Pounovich alse approached employee Samuel Jack-

son before the election and inquired whether he had

signed a union eard. Several weeks later he asked

him to go te the union meeting and report what every-

hody said. Jackson refused (PLA. 63-64; 478, 480-

482). On the dav of the election, Pounovieh told em-

plovee Steele that he had no business wearing a union

button, and, when Steele stated that he was ‘for the

union.”” Pounovieh commented that Steele had ‘ta lot

of union paper in the back of [his] car’ (PLA. 65;

N76).

After the election, Miller abolished the ten minutes

wash-up time that had been in effect, fer a group of

plant workers. He told several employees, by way of

\

a)

4

explanation, **You guys voted the union in. What

you get, you going to work for’? (PLA. 63; 499).

‘2. Assignment of union employees to less agreeable work, and their

loss of extra work

Three days prior to the eleetion, Union Shop

Steward Morton was transferred from the job of lift

truek operator, which had held for two years, to

thai of removing spilfd asphalt. When he reported

to Supervisor Kregul and asked why this disagreeable

work had been assigned to him, Kregul replied, **Thit

is what the union gets for you’? (PLA. 68; 167, 168),

Morton remained on clean-up work for about three

months and during much of that period worked alone,

though previously several men had assisted the elean-

up man in handling spilled asphalt (PLA. 68-69; 169-

170, 212, 238). et

After the election, Plant Manager Miller called

Edison Jones, Sr., an elder: man who performed light

janitorial work. When Jones: stated that he under-

stood that Miller considered him and his son as **ring-

leaders of the union,”* Miller replied that he knew who

the ringleaders were and added, ‘If the €.1.0. don't

get in here every S-O-B- will be gone’? (P.A. 72-74,

347-348, 350-351). After the conversation Jones was

assigned loading work, inelnding the moving of drums

weighing 500-600 pounds by hand truck (P.A. 74-76,

178, 353). His janitorial work was assigned to Willie

Davis, who subsequently was selected by Miller to dis-

tribute an anti-union petition (PLA. 76, 800; see

infra, p. 10. |

Anderson Crayton, an early adherent of the Union

and known as such to his foreman, had the job of

setting up drums for pouring asphalt at the time of

5

the election. He was in his fifties, and his work as-

signments during the seven years of his employment

progressed from heavier to lighter work (P.A. 77472.

174, 222-223, 232). After the election, Miller assigned

Crayton to the cleaning of the plant’s railroad track.

Although that work previously had been performed

by a crew of several men, Crayton performed it alone

and, in addition, was directed by Miller to clean the

track for a greater distance. After two weeks Cray-

ton was assigned the same work as Edison, Sr.—the

moving of heavy drums (P.A. 77-78; 175, 231-232, 236,

296, 683).

In addition, after the election, six union adherents,

ineluding two union stewards, were deprived of Satur-

day work, while other employees in the same classifi-

cation werked on that day. When they asked their

respective supervisors for the reason, the men were

told that Plant Manager Miller had ordered it he-

cause they were union members, and that ‘‘the C.1.0.°

don’t work six days here.’ Moreover, during the 12

weeks following the election, five of the six-emplovees

who had been deprived of Saturday work, worked an

average of less than 37 hours’ per week, while other

employees doing similar work, who were not union

supporters or had been Inkewarm in their support,

worked substantial amounts of overtime.

3. Discriminatory layoffs and discharges

(a} e layoffs of October 20, 1960 : i

Six days after the election, petitioner laid off 11

of the 12 laborers in the paint shop (P.A. 84-85; 328-

—

©

5 See PLA. 80-84, 194, 230-231, 267-268, 316-318, 354-355, 484-485.

*See P.A. 67, 82-84: 477, 574-575, 724-725, 797; B.A. 33-35,

45, 77, 79.

-

6

$329, 340, 376, 378, 388, 408, 425, 464,.565, 937). All

11 employees were union adherents and the one re-

tained, Leaman Tate, was opposed to the Union CP A,

86-88 ; 325, 334, 366, 385-386, 407-408, 425-426, 457. 167.

474, 495, 565-564). Before the election” Foreman

Bonow had told four of these men that if they voted

for the Union they would be laid off (PLA. 66; 326-_

327). After getting their checks, five of the employees

went to see Plant Manager Miller, who remarked,

“Get paid from the C.L0O. The union men get paid

from the C.1.0." (PLA. 92-93; 378). About the same

time, William Jenkins, one of the laborers affected,

asked supervisor Bonow how long it would be before

the laid off men would be called back. Bonow an-

swered, ** To tell vou the truth, Jim Miller is mad, and

you and L. T. Prince [another laid) off employee)

won't make it baek’? (P.A. 93; 328). And, while

Bonow was talking to laid-off employee Allen Davis.

Yard Foreman Pounovich came up wand remarked,

“What is the union going to do with them now? * * *

send them over to Africa?” (PLA. 91: 391).

Tn the first week following the lavoff. Tate, the non-

union employee who was retained, worked 52) hours,

~ and in the 9—week veriod beginning. with that week

he averaged over 60 hours per week (PA. 87-88, 97,

191-192, 776; B.A. 35-51). Some of the laid. off em-

ployees were subsequently recalled. However, of those

recalled, Harris was later forced out Csee infra, p. 7),

Larry was returned te work after he dad signed an

anti-union petition (PLA. 90; 699-700, S70-871, 922,

936), and MeNeal and Jenkins were not taken hack

until after the strike called by the Unien had ended

(P.A. 90; 619-620, 698, 699). Petitioner never re-

sl the remaining emplovees who had beem laid off

GO: 636-6: iT).

(b) The forced sesiguetions of November 7, 1960

James Parris, one of the emplovees laid) off on

October 2O. was recalled on Octohbere2?5s (PLA, 101-102;

Wi). Shortlymetter his recall Yard Foreman Poune-

Vieh told) Harris and another employee that. they

should not have voted the Union in, and that Miller

Was going to lay them off or make them quit (PLA,

101; $98). On November 6, Miller transferred Harris

toa building where the atrowas full of dust. Tiurris

had an injured eve and in the past Miller, beeause of

that condition. bad given TLarris light work. On

November 7, Hiurris, whose eve began to run, asked

Miller’ for other work, reminding him of his injury.

Miller replied that Harris should have thought of his

eve injure when he voted for the U nien (P.A. 85, 102-

105; 501-504, 685). Harris then asked Miller to FIVE,

Him his time?” and reeeived his final payeheek on

November 8 (PLA, 103; 504),

Will Steele was questioned on election: day by

Pounovieh about his unien batten, and was warned

that Miller had a diteh to put him in if the Union won

(supra, po). Te had) been emploved since 1954,

stacking heavy bags that eame froma conveyor belt,

and during most of the time had done the work te-

gether with a belmer (PIAL 105s 572-573, ST8-579, 585-

O86, TAS TARY. When he reported for work on Novem,

her 7. hie found himself withont a helper. and told As

-ixtant Superintendent Jandak that he needed help.

Jandak replied. “Tf vou ean't stack the bags vonrself,

vou go heme and tell the union about it’ CPLA,

193, 909-978). Steele appealed to Miller te assign him

»

<é

\ g

a helper, but Miller refused (ibid.).> After Steele left

the plant, another employee was assigned Stee}’s work

and was given a helper (PLA. 106; 698, 852: BLA. 117).

Steele reported for work on#he next day. anil Ji andak /

asked him — hgy‘wWould stack .the bags alone.

Steele re plied that how: as unable to do so, whereupon

HJandak stated thi at petitioner did not Want him. (PA,

195-106; 578, 747,748).

‘c) The rakes in January 1961 °

In January 1961 ‘petitioner laid off seven emplovees,

all of whom had participated in union activities (P.A.

108, 115, 116-117 ¢,201-202, ‘207, 923-294, 996-997, 266,

287, 315-316, 348-349). Five of these employees, in-

chiding union stewards Morten and Crayton, had pre-

viously heen assigned less desirable work hecause of

their union activity (see supra, pp 4-5). When

“in April 1961, employge Tatris called Miller to ask

that these employees be return “d to work, Miller re-

plied that he knew everybody who had votea for the

Enioy. When Harris said that one of the laid off -

men (Nathan) had not done so, Miller replied that

Nathan's lavoff had been a mistake (PLA. 108, 116;

288-289, 506-509). -Althongh petitioner gave lack of

work as a reason for the layoff, most of the employ ees

Who re mained thereafter works d overtimesy PLAS 111;

B.A. 79-117). Moreover, although its practice was to

have lavoffs governed by seniority. petitioner retained

employees with less seniority than those laid off, not-

withstanding that the latter were eqnally capable of

ve rforming the work (PA. 114-115; 162-163, 229-293,

© 259-260, 383, 314, 345, 4675473, 662, 812, 827, 904, 928-

90; B.A, 79-115): The laid off emptovees except for

Ce

we

9

Nathan awd Edison Jones, Sr.” weresnot called back

ae Werk until June 1961 after the strike ealled by the

U Hien had ended (PLA. 107: 6-H), 699),

(d) The: discharges of February 8, 1961 -

edrnine Pkies had worked for petitioner since

W905 asa shiping clerk on the midnight to & aa. shift

Give, © fi; ASS ASH). He Fd joimed the Union and

attended several mectings (PLA. 435).- Yard Forenyin

Pounovieh told dine about a week before the election,

PT wouldn't join the anion if T were vou * 9 (BA

1172 4937-488). «At 1 aam.. on February 8, 1961, he had

headache, took an aspirin and fell asieep at his sem

CPLA TIS: HRA GIS-614). He knew that if a truck

arrived he would either hear it or the driver would

tap onthe window behind whieh Dykier sat (PLA. 118;

Ho). . Sleeping on the midnight shiff was not. neon.

non and Foreman Mee urdy, who directed workers on

the night shift. had at times observe “dL @rnipols vees sleep

ing Withont reporting them (PLA. 121; 732-53 3, SS7-

S88. 800-896). However, when MeCurdy saw Dekier

‘sleeping, he immediately Dialeas it to Plant Manager

Miller, calling him at home at 2 aa. (PLA. 110, 119-

120: 641, 732). Miller, whe was under doctor’s orders

not to drive at might. phoned Pounovich. who drove

him te the plant (PA. 120; 601-602, 641). Miller

promotly discharged Dvkier (PL& 120; 445).

When Miller arrived at the plant-that night, Me-

Crrdy told. him that Jackson the pumper, also was

napping (PLA, 121; 602, 613. 641-642). Jackson had

Fe } .

' Nathan and Schon wore called hack in April (POA 17! 358

P08, SOO SHY, Hi iAeiay Jshorth after Mater had acknowledged that

Nathan's layoff Wl been a mistake (supra, pS) and Jones son

had eirenbated the anti Wee icons petition mira, Pr 14

5 é :

4 fo . we

2

a.

worked for petitioner for over 10 years (PLA. 117; °

476). But, he had refused to spy upon the Unien

when requested by Pounovieh (sapra, p. 3). “Miller

woke up Jackson and told him he was through (PLA.

119; 414, 483). Jackson &¥ked Miller whether be

wanted him to return on the following night. Miller

replied, "No, vou S-O-B-.)vou are through CPLA.

119; 464). : | 4h

g 4. Sponsorship of a union withdrawal movement

When Edison Jones, Jr, asked Miller on April 8.

1961, for more work, Miller cursed hii for being-pre-

union. Jones replied that he **would be a company

man for the overtime,” and that he thought he could

‘stop the Union sinee many men whe bad been laid off

wanted to return to work. On April 14. Miller vill

Jones to his office and asked him to earry an anti-

amnion petition for the employees to sign. He alse told

Jones that he would call the men back and give them

backpay and a wage increase. When Jones told Miller

that he wanted help. Miller directed him to employee

Willie Davis, and then instructed both employees to

get the petition signed in the emploveessliemes (PLA.

122-123, 126; MO-551: BLA. Sg. 101). Davis cirenlated

through the plant on April 15 and obtained 37 s@gna-

‘tures, and on the following Sunday Joges and Davis

obtained additional signatures and authorizations

‘from employees (PLA, 124-126; 931, 996-557, 5599, 785,

789, 870-871, 873-874. 876-878, 922). On April 21.

Miller told Jones he could work as much overtime: as

he wanted, and thereafter Jones, who had véorked onjy

32 hours since February, worked substantial overtime

for a mmber of weeks CPLA, 122, 126853; B.A. 87-97.

109, 111, 113).

11

‘ 2

B. The Board’s Conclusions and Order

The Board. in agreement with the Trial Examiner,

— found that petitioner diseriminsted against its em-

plovees in violation of Sections S(a)yC3) and (1) of

the Act by: 2 (1) assigning more disagreeable work Jo

Morton, Jones, and Crayton; (2% deuving Saturday ~-

work to sis employees; (3) laying off eight employees

in October 1960; (4) foreing the resignations of THar-

ris and Steele: (5) laying off seven employees in Jan-

nary 1961; and (6) discharging Dykier and Samuel

Zackson fn February 1961 CPLA, 136, 68-120). 6 The

feial Examiner and the Board further found that

petitioner violated Section SGoCk) of the Net hy de-

priving emplovees of benefits enjeved prior to their

—cheice of the Union: by threatening te visit: reprisals

on union supporters and promising benefits for fare-

saking the Union: by interrogating emplovees as to

their unien <vanpathies; by attempting te get em

plovees to spy on the Union: and by sponsoring a

movement to withdraw from the Unien CPLA. 136,

129). ,

The Board's order (PLA. 137-143). fufer alia, ve-

quires petitioner to cease and desist from the unfarr

labor practices fonnd. te offer reinstatement with back

pay tw employees discriminatorily discharged or daid

off and not recalléd, to make whoie employers aaninst

whom petitioner had discriminated and whe were tem

jorarily laid off. and to post appropriate metices,

C. The Decision of the Court of Appeals

The court below held that the Board's findings we

Supported by substantial evidence and enforced the

Board's erder in full (Pet. 18-34).

s

ee

4

12

; ARGUMENT i J

Petitioner’s principal contention is that the Board's

findings are not supported by substantial evidence on

_ the record as a whole (Pet. 16-26). This question does

‘not warrant review by this Court. Uwitersal Camera

Corp, National Labér Relations Board, 340 US

< pea In light of the facts detailed in the State-

nt, it is evident that the court be Jow eorree ‘thy con-

ded “that there is ample evidence to si apport the

Board's -findings’’ (Pet. App. 2a). .

‘Contrary to petitioner’s contention® (Pet. 5-16),

the report of the Trial Examiner, which was adopted

by the Board, sufficiently apprised petitioner of the

basis for his decision to enable it to prepare inteHigent -

exceptions and to obtain meaningful Judicial review.

As the court below pointed out (Pet.e App. 3a). the,

report ‘tis a detailed presentation and analysis of the

evidence, containing inferences whicl the trier of fact

is entitled to make.”’ Neither Section Sth) of the

Administrative Procedure Act.6 nor the demands of

due process required anything more. See United

States v. Pierce) Auto Lines, 327 US. 515, 529: Na:

tional Labor Relations SS State Conter Ware-

house, 193 F. 2d 156, 158 (C., A. 9); Nutronal Labor Re--

Tations Board v. Sharples Chemicals, TIne., 200 FY 2d

645, 652 (. 2a. 6): Southern Railwan Co. ve United

— :

S Section’ 8(b) of the Administrative Procedure Aet (5 1S 0

NOT (bh) ) provides. infer alia, that all decisions shall ttinelude a

statement of (1) findings and conelisions, as well as the reasons:

or basis therefor, upon all the material issues oof fact. law. or

discretion presented on the record * © *°" The Attorney General's

Manual on the Administrative Procedure Aet. whieh is an an-

thoritative guide to interpretation of that statute. states with

reference .to this section: **An ageney which issues opinions in

narrative and expository form may continne to do se witho ut

making sepdrate findings of fact and conclusions of law."’ Att’ bf

Gen. Manual on the Administrative Procedure Act 86 (1947).

td

-&

13

States, 180 F. Supp. 189, 195 (E.D. Va., 3-judge court,

per Sobeloff, Ch. J.): Coyle Lines v. United States,

116 FL Supp. 272 (ED. La., 3-judge court).

Nor is there substance to petitioner's contention

that the. Trial Examiner's report derffonstrated, on

its face, bias and prejudice Which vitiated the proceed-

ing (Pet. 16-18). As the court below pointed out (Pet.

App. 3a), [t]he report is written in a rather dramatic

style, but this dé@s not make it susceptible to a charge

that petitioner was denied due process of law."" Peti-

- tioner fares no better in relvingon the fact that the Ex-

aminer erroneously stated that the General Counsel's

Witnesses were segregated at the hearing and thus did

net hear each other's testimony. This error, whieh

was corrected by the Board (PLA. 59, 137). is mani-

festhy insufficient to establish bias and prejudice on

the aragrg r’s part. See Berger v. United-States,

255 U.S. 22, 31: Tumey v. Ohio, 273 U.S. 510, 523.

~ CONCLUSION

For the forexomm: Fleasons, the petition for a writ

of certiorari should be denied.

| Respectfully submitted,

ARCHIBALD Cox,

Solicitor General.

An SOLD OrpMAN,

General Counsel,

Dowisick TL. Masons,

Associate General Counsel,

Norton J. Coe,

Assistant General Counsel,

Hans J. LEW MANN,

Attorney,

National Lahor Relations Board.

“May 1963.

ee,

I4

APPENDIX C

The relevant provisions of the National Labor Re-

lations Act, ax amended (61 Stat. 16, 75 Stat. oT

29 LUS.C. LL, ef seq.) are as follows:

Sec. 7. Min lovers shall have the right to ~elf-

organization, to form, join, or assist labor organi-

zations, to bargain collectively through repres

sentatives of their own choosing, and te engage in

other concerted activities for the purpese of col-

lective bargaining or other mutual aid or protec-

tion, and shall alse have the right to refrain from

any or-all of sueh activities exeept to the extent

that such right may be affeeted by anu agreement

requiring membership in a labor organization as

a condition of employment as autherized in

section 8(a) (3).

See S(ay Tt shall be an unfair labor practice

for an emplover— 73 ae

(1) te interfere with, restrain, or coerce em-

plovees in the Nereise of the right~ guaranteed

in section 7;

* * * * *

(3) by diserimination in regard to hire or

tenure of employment or amgterm or condition

of employment to encourage or: discenrage

membership in any labor organization: ~ * *

GOWESHMENT PENT NS CEF 6 1963 éarace/* 99