# Brief for the Respondent in Opposition — Simmons v. Washington ex rel. Carroll > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0996%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1963 - **Citation:** 374 U.S. 808 ## Text 7 Toa dk wees ~ Department of Tacs, es Ocronen Tuam, 1962 * ¢ ¢ = < . ve ; a So - Paonesi Gents Company, OF ‘Dexawane, Se ae Oe eee a v, ono ee > > ON , PREITION FOR A WRIT OF CERTIORARI TO°THE UNITED , Beaten c OF Anais FOR cana ala CIRCUIT | 1 ms a ee "Bate Fon ‘a Mao, AOR RELATIONS OPPOSITION - : ' BOARD IN ‘> o q a > i - =— ‘ ‘ ——ee , o - a od -y + « ? oy i327 : <" Bolicitor: General,’ , Washington 28, D, 0: - ‘Aswon Onmanax, ‘3 pO : 4. General Couns, PE BG dt f ; 3 Fs Darn " Attorney,” gid ap Relations Board, : - Boverstex L, Maxord, hig sae : “Aatciats General ‘Counsel, 3 " Nomtom, J. Cowes / * Qi gh «Assistant Generab Conse, ads $6, O-. Z iS te SP’ é , MM x - « ; oa ds s Seay é 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 ’ : ' q 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