Opposition Brief — Cheyenne River Sioux Tribe v. United States

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Page.

i ne races a ahnanancehen ome aS

Msci ci cone e at eee

. Questions presented. _-- 2! 0202222022. ibid *s

Statute and regulations involved... ~~ -- Bischaget oka

Statemdlis?). esO" 7 go). par ae oe

A. The Board’s findings of. fact______.-__-__ 2

B. The Board’s decision and order-__-_-__-_- 7

3 of appeals decision__.-.__ = ____ 8

ERA AIPA EIE ES RG RE St ETE SS 8.

Pe ee me peat mate er ee Rene ice? ae

CITATIONS -

Local Lodge No. 42h, IAM v. National Labor Sener)

eee Relations Board, 362°U.S8. 411_ 2222222... . 9

= ‘National Labor Relations. Board v. caine Pees

ve 195 F: 2d DRE is Seah ite dulaccd QUES... cag

_ National Labor Relations Board v. Monsiinio |

_ Chemical Co., 205 F. . ee oe - 10°

National Labor Relations Board v. Penn .

- Ine., 194 F. 2d 521________- ae 9, 10

National Labor Relations Board v. Plumbers |

and Pipe Fitters Local Union 214, 298 F. 2d.

| MF Seen dee nS rn cS ee i BS 9

“National Leber Relations Board v. Sapulpa

Typographical Union No: 619, ITU, 321 F. :

as « Sa cee | eee 11 |

| National Labor Relations Board) Textile ee

Machine. Works, 214 F. —— sap Ck S e. &B *

T75-996—65 .. mw . Pea oe eis

Pak National Labor Relation’ Board v. Teamenid,

oF 2d 378, certiGrari denied, S41°US. rage

Pi Ts Se a a ls A aad 11

National is Blard y. United

Brotherhood of C 261 F. 2d 166.. 11

- National Labor Relati -WTVJ, Inc.,

is TO Ob i se ss fol

‘ Phelps Dodge Corp. v. National Labor Relations ~~

Z Board, 318 U8. 178 «<p ss--ntgne-t--- 8 UL.

Universal Camera Corp. .v. National Labors.- .

is _ Relations Board, 340 U..474. .. ie cas &

Staiute and Rules:

- | National Labor Relations Act, i Stat, 136,

> 29 U.S.C. 151, et seq.:

5 Section ‘7 Ah SR a SS

; ’ Seetion 8(a) (1) ce 7

_ Section 8(a){3)-------- sia ee

Section 10(b)- . 9,10

National Labor Relations Board ules and

_ Regulations, 29 OF-R.: Of sh rite

$10 Is Ae 10.

fea ae | ae

it. |

b

gn the Supreme Gour of the Goited Sas

. Ocroner Tena, 1964.

rary

pas No.. 1132 7 |

- Asaarrton Eyonamya Conrona0N, PEEITIONER

%”. J i

_ Namonat Laon. Reamions Boas : # Gee

ow PRrITion Pow! 4 WRIT OF OBRTIORARI TO THR UNITED |

| STATES COURT OF APPRAES VOR.THE FIFTH CIRCUIT .

BRIEF POR THE NATIONAL LABOR ‘RELATIONS BOARD

IN OPPOSITION 3 |

The opinion of the Paes of appeals (Pet: 1a-8a)

“is reported at 340 F 29d 281. The Board’s Decision

and Order & 248-250, nephews are eames at ae

JURISDICTION

The jodgmett of the court of appeals ‘ was elidéted

on January 11, 1965, (Pet: 9a), and its deeree en-

forcing. the Board’s Order was entered on February

8, 1965 (Pet. Tla-I3a). A timely petition for: Tre.

hearing was denied on. February 23, 1965 (Pet. ‘Tfa). ae

ORD gol AT satenmene op Sn Ah Tropes of pe vas

: tsa daa con ena

. (1) Pee

oe 2 een eo re,

‘The petition for a writ of certiorari was filed on May

5, 1965. The jurisdiction 3 this Court is Invoked

» yner 28 8 USC, AAA, eee iy ;

9°

| oe ‘QUESTIONS PRESENTED,

ly ‘Whether sikelandinl: -evidence supports’ the .

: Board’s finding that the Company violated Section

8(a) (3) of the National Labor Relations Act by deny-

igg reemployment to 19 strikers because they had ay

ticipated in a strike against % '

2. Whether the complaint was’ barred. by: the ‘timid |

. ** ‘tions period contained in-Section 10(b) of the Act.

2 *> 3. Whether. the General Counsel was empowered ‘to

_ grant the charging parties. an extension of time to

- file a request for review of tffe Regional Director’ s

. Tefiisal to-issue a complaint. A RE 3

; STATUTES AND REGULATIONS INVOLVED

_ The relevant provisions of the National Labor Re-

lations Act.and the Board’s ‘ules and Regulations are

set forth at. pages 19a-24a at the petition, | SS

A THE BOARD ’s FINDINGS OF FACT”

_In August, 1959, following ¢ an election held pursuant

to. a consent agreement, the Union? was certified as

bargaining representative for the. employees at peti-

_ tioner’s ‘two. plants at. Bryan, Texas. (R,, 166; J.A, .

_ 69-71). Bargaining negotiations began shortly there: ;

* Local 458, ‘International Brotherhood of Boilermakers, Iron

“+ Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO.

Pee e a | : y

aes s “after and pane ‘until an. impasse was reached:

+

_early i in June, 1960 (R. 166; JA. 71).

During the week of May 23, 1960, petitionér’s } pres- | ;

ident, Ford ‘D. Albritton; Jr., learning that a striké

had. been authorized, ‘called ‘the employees of ‘both

‘plants together arid spoke to thent for half an hour.

= He ‘told the employees that they had been “one big

family” to him and that. he wanted to keep: it that

way; that, under the Texas ‘Tight-to-work law, they.

did not have to join any strike that might be called

even-if they were members of the Union ; and that he

would protect any employees who saw fit to work dur-

_ ing a strike. Finally, Albritton warned the employees

that if. they walked out he would. not take them back

* but that they would be replaced, as the Company had

many applications from people who wished.:to work

for it (R. 166-168 ; J:A. 126~127, -143-144, 179-180,

192-194, 206-207, 209, 220, 230-231, 239, 247, 253-254,

~ 262-263, 267, 273-274, 288, ‘296-297, mee ages bi

336, 351).

. The Union called a ois on June 13, ‘1960 (R. 168-

169; J.A.-71)._More than 50 of petitioner’s 140 em-_

ployees, ineluding the 19 individuals here involved, iy

“walked out of the plants (R. 168-169; J.A. 84). To-

ward the end of the day, President ‘Albritton ad-

dressed the employees who had not joined ‘the strike.

After * thanking them for their loyalty to the Company

in appearing for work, he advised them that, although

the Union had a Tien to strike and to picket peace-

fully; it could not lawfully prevent nae from

eat ; era ate a 4

entering the aN He added that the plant would

remain °open under present working conditions ‘and

that, while absent employees would Be given an’ Op- .

portunity to return to work, strikers who close not { to.

; retum would be permanently replaced A(R. ‘169-171;

J.A. 407-408).

During the first week of the strike, petitioner —

letters to ‘the strikers. notifying them that if they

wished ta return, work they must report by 7 a.m...

June 20, 1960, an that, if they did not return by the

designated time, they might*be replaced by ‘‘one of

the many applicants who would like to work” for the 3

Company (R.. 171-172; J. A. 482). One striker re-

“turned to work on June 20° ‘(R. 172; J.A. 89, 93).

ee The Company immediately began replacing the others.

Each was: notified, when his replacement was hired,

that his services had been terminated (R. 172; JA. ~

91,. 493-484).* . By Friday, July 22, all but. two

"strikers had been replaced (R. 172; -J.A. 89): On

- . that date, the Union notified the strikers that it was:

_________ withdrawing financial support. for-the strike, where-

_ upon the strikers decided to discontinue the strike and

the picketing (R. 172; J.A; 76-77).

- The present case involves 19 strikers eile the

complainants) _ who applied for, but were denied, re+

employment at the end of the strike. Nine of these

complainants: applied tor work at various times | dur-

ee

3 However, two atkikers, Whe :retaad: bellows the end of the

pen were reemployed even though. am tea for them had

Na ea (R. 177; CEs. : :

fee

ing the’ month of August.’ “phey were Wold that ‘no “:

jobs’ were available ‘at that time, but some were ‘as

suréd that they would be called as soon ‘as there was

an ee (Re 181-164; J A. 61, hated wr; sonar

_ 299). * iA

The Qanniaidy did not hite any moge new pidaphililt 3

employees ‘until early ‘in October, 1960, when it passed

over the ‘strikers who had ‘applied for jobs and’ hired —

__) five new applicants. On October 16, Personnel Man-

_ager’ Vazner assembled the five newcomers, poke t6

them on the subject of plant rules; and explained the

operation. of the insurance sharing programs. One of

_the employees askéd. about the strike, and a diseussion

of the Union followed: “ Varner told the neweomiers

that President Albritton had told the employees that he

“wanted everybody. "to ‘be one big family’? and was

- not going to have a union ‘in the plant; that 54 em-

. ployees had gone out on strike and, though requested,

they had refused to return to work; and that,.as a

result, all 54 had lost’ their jobs" & IAT; J.A.°

ie 362-365). aN 4

About the middle of October, J: in ‘anon an-.

other of. the’ 19 complainants, applied. for reemploy-

ment and was told by Varner that no job was avail-

able at that time but that he would be notified if an :

opening occurred occurred (R. 186-187 ; J.A. 194-196, 199-200).

Five permanent srmanent production workers were hired be-

tween October 13 and etober 27, 1960. (J,A. 485-487).

“"’'Paust, Brewster, Ramitez, Chambers, Burlin, Hines, Alve-

rado, Hurt, and Clanton, Jr. (R. 181~186;° J.A. ‘59, 110; 181, :

188, 267-208, ‘247, 254-255, 263-264, 298-208, 489, 490).

A

is

Late in March, 1961, the sAiatlcai learned that the

Company was.again hiring employees.. The remainder

_ of the 19 complainants, and some of. those’ who ‘had.

applied befére, applied for work with the Company

between the latter ‘part of March, 1961, and May: 1b,

1961... They ere told either that, petitioner had a-

policy not to employ former employees (R.- 184-191;

SA, 144- 48, 265, 266, 352-354)° or that they would

be called if there were any openings (R. 185-186, 190-

193; J.A. 231-232, 240-241, 247-248, 266). The Com: |.

pany hired 86 new employees between November 15,

"1960, and May 13, 1961, for'jobe which the.complain-—

ants were qualified to mews (R. 195;-F-A. 485-487).

_ None of the 19 “sigan a was 3 hired fopauy. % these

jobs (R195). ie

Sot ~ 8 The Cé Company’ S jolly oft not sseanployiny fo foriijir employees

. Was adopted. in. December, 1958, for the specific purpose.of sav-_

ing. ines oner the cost of retraining ; an. employee ‘who was es-

. Senti “job hopper” and who, having once quit petitioner’s ee

ployment could be expected to quit again (R. 174-175; J.A.

; : 97,. 421-493). The policy had never ‘been published or ather- A

wise communicated generally fo the employees (R. 175; J.A. 97,

410-411). Prior to the termination of the strike, it had been -

* applied with great exibility. According to the testimony of -

’ “Personnel Manager V: ' (R. 176; JA. 447-455, 471-481) and -

. Production Scheduler ESlgore (R. 175-176; J.A. 495-434), 11

former employees had. applied, for reemployment -between the

‘adoption of the policy in December, 1958, and the strike in

June, 1960. Of. these, the Company had accepted six and had

rejected five (J.A. 449-453; 471-479, 425-433): Moreover, dur-_

ing the strike, the Company offered reemployment to twa former

_ @mployees (J.A. 477-478), and reemployed two strikers who

_ had abandoned the. aes even though they had been Paper

Ss 177;-J3-A. ATL-ATS)._ ma.

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B, THE BOARD'S DECISION AND ORDER.

: Upon the foregoing, facts, the. Board,: affirttiing the

Trial Examiner, found. that tlie 19: complainants had — —

made timely applications for reemployment, that these-

applications were intended by the strikers and were

_regarded -by the Company as cont nuing applications,

and. that the. Company-had bypassed the complainants.

and hired new employees. ~The Board further found’ ,

that the Company denied reeniployment to the 19 corfi-

: ase plainants, not because of a policy against the hiring —

of former employees. (as the Company contended),

but because they had engaged in/union and strike

| activity. . “Accordingly, it concluded that the Com-

pany’s action constituted : discrimination in violation |

of Section 8(a) (3) of the’ Act (R. 197-199, 248). .

The Board further cone ided that, even if the Com-

pany’s action were motivated by a policy of not rehir-

ing forme employees, the application of that policy }

to s constituted an unwarranted interference

with strike activity, in violation of Section oun (1)

of the Act (R. 203-205).

The Board ordered the ‘Company to 6 to cease and esint aaa

from: the unfair labor practices found and from: in

' any other- manner interfering ‘with the exercise of

~ eniployee rights guaranteed by Section “7. of the. Act.

The Board ordered the Company to offer: the com

plainants.\ immediate - “employment, to make. them

- whole for any lésses suffered asa result” of the dis-

crimination . against. them* and. to -post. sppopriats

- notices (R. 221-225, 249-250).": Sie

‘*In addition, to, the 19, str dae shor the Bord

aleo found a ee refusal to reemploy two other

Mat a

Kk 8

‘The court of appeals’ conéluded that substantial evi-

3 dence supported the Board's ‘fitiding’ that the Com-

- pany< refused to rehire the 19 complainants because

they had’ participated in ‘the strike and that the Com- :

_ pany’s purported application of its policy not to rehire

former employeés “was a pretext for unlawful dis-—

crimination” (Pet.' 5a-6a). The court accordingly

enforeed the Board’s ‘order’ insofar as. it: remedied 7

that discrimination (Pet..8a). :

ARGUMENT

1. The court of tonpinle accepted the Board’s find-

ing that petitioner’s job-hopping rule was utilized

" only as a pretext for refusing to reemploy the 19. com-

‘plainants because of their strike activity. Such ‘a

refusal to hire constitutes discrimination in violation

of Section 8(a)(3) of the Act (Phelps Dodge Corp.

v. National Labor Relations Board, 313 US. 177):

The only question presented, therefore, is whether

substantial evidence supports the. Board’s finding —

that the Company had a discriminatory motive. This

seein. ena som geen Teen Ps by Se Se <

- of appeals (Pet. 5a-6a), does not warrant review by

this Court. Universal Camera Corp. v. National La-

bor Relations Board, 340 U.S. 474, 491." _ |

steiitrs,: Repinews gui Ruiz (B: 210-818, 248 n_ 1). ‘The —

" Eilagee seomneety_ oaks Ce ett) tek di ort :

SAPO Seger of iain, ceiaieah strom cab te

; (CA. Ty; and see Local Lodge\Na,

tional Labor Relations Board, 362 US. 411, 416.

%

ry

?

@: There is’ ne sibsthines ‘t6: petitioner’s-contention

that the complaint-—-insofar as it pertained to strikers

Alvarado, Ramirez, Faust, and Munoz—was; barred -

~ by Section 10(b) of the Act (Pet. 17-18). ‘Although

these’ employees first ‘applied for work more than six .

_. months before they filed unfair labor practice charges ~

with the Board," the record establishes, as the court

below concluded (Pet. 7a), that the applications “were _

oe regarded. by both . the applicants ‘and the Company —

as continuing: applications. Accordingly, the Oom-

pany committed a separate unfair labor practice each

time it hired a new employee in preference to one of —

the complainants. National’ Labor Relations Board

vi Textile Machine Works, 214. F. 2d 929, 982 (CA.

3) ;.National Labor Re

Pipe Fitters - Local Unie

‘Vacancies which ‘these four complainants were cra

ceding the service of charges on their behalf (R. 214).

National Labor Relations. Board v. Pennwoven, Inc.,

194 F, 2d 521 (C.A. 3) and National Labor Relations —

Board v. Childs Co., 195 F. 24,617 (C.A. 2), relied

on by petitioner (Pet. 17-18) , did not involve such

not be applied against “replaced strikers.” The court stated,

however, that “a rule against job-hopping is not in itself un-

lawful * * *” (Pet. 6a).

4 aid’ Ransieis flndchangin-an-May.19 ‘ona 2%.

196 respectively (R.°10, 46), Faust) filed a charge on Octo

ber 27, 1961 (R. 190), and Manos filed ene on Noveaer 2 ae

1961 (R. 18%). : |

| fied to fill occurred within the six-month periods pre- |

ak.

- separate and independent: unlawful: acts occurring

-’ . . within the 10(b) period. See the discussion of Penn- |

woven in Teatile' M achine Works, supra, 214. F. 2d

at, 932,’ )

3. There ; is similarly no. seri to ‘petitioner’ S cgn-

. tention (Pet, 13-15) thaf the ‘complaint was -improp-

erly issued -because ‘the charging parties did not

' appeal the Regional Director’s refusal to issue a com-

‘plaint within the period specified in the Board’s Rules.

<

” Although Section 102.19 of the Board’s Rules, and —

Regulations (Pet. 23a) prescribes a period of 10 days

‘ within which: to file such an appeal, there is nothing

in the Rules, or in the Act, which precludes the Gen-

eral Counsel, as he did here, from granting an ex-

tension of time where. necessary to promote the ends

of justice or to effectuate the purposes of the Act.’

“As observed by the court of appeals (Pet. 8a), quoting

with ‘approval from National Labor Relations Board

_ v. Monsanto Chemical €o,, 205 F. 2d 763 (C.A. 8), “It

is always within the discretion of a court or an admin-

istrative agency to relax or modify its procedural

mules adopted for the orderly transaction of business

before it when in a given case the ends of justice re-

°On June 26, 1961, the’ Regional Director notified the parties

‘that he was refusing to issue a complaint, that an‘appeal might -

be taken to the General Counsel under Section 102.19 of the

Board’s rules, and that upon good cause the General Courisel .

might grant an extension of time in which to file an appeal.

On July % the complainants requested an ‘extension, it was

- Pranted, and an appeal was.filed within the extension allowed

Thereafter, the General Counsel. reversed the Regional Director

in substantial part and issued a- Codaplaint (Pet. Ta-8a). “

aye

™

. ny

11

quire if.” National. Labor. Relations v. United

Brotherhood of ‘Carpenters, 261 F.) 2d 166 (C.A. 7),

relied on by petitioner (Pet. 15), concerned whether

Section 10(k) of the Act and ‘the Board’s rules issued

‘ thereunder required the Board to decide jurisdictional |

disputes ‘on: their’ merits and to make an affirmative

award of the disputed work. The decision did not

touch + span the power of the Board to relax its own

time requirements in’ proceedings before it.”

io Section 102.121 of the Board’s Rules (29 CFR: § 102.121)

-_ specifically provides that the Rules “shall be liberally construed

to effectuate the purposes and provisions ofthe act.”

_y Equally insubstantial is petitioner’s final: ‘contention (Pet.

19) ‘that, since no exceptions were filed by the General Counsel

or the chargirig party to the remedy proposed by the Trial

Examiner, the Board lacked power to enlarge that. remedy. ; It

is clear that where a party, as did petitioner, files. exceptions’ to

parts of a Trial Examiner’s decision, the Board has power to’

review parts of the decision to which no exception was filed, if .

this would serve the ends of justice or effectuate the policies

of the Act. National Labor Relations Board v. WTVJ, Inc, —

268 F. 2d 346, 348 (C.A. 5); National Labor Relations Board,

v. Sapulpa Typographical Union No. 619, 178,/821 F. 2d 771

(C.A. 10); cf. National Labor Relations B

185 E. 2d 378, 384 (C.A. 9), certiorari denied,

By requiring petitioner to offer the complainants not only im-

mediate employment, as recommended by the Trial’ Examiner,

but also the seniority and other benefits they would have en-

joyed absent the discrimination against them (R. 249,°n. 2), the

Board simply acted more completely to “undo the effects of

[{petitioner’s] discrimination.” Phelps Dodge Corp. v. National

Labor Relations Board, 313 U.S. 177, 189.

o

—,

-~*

ae

i

ct

0 Barer astons

_ Be peton for rit ofertas sould be

"Beetle,

Anwou aaa | ie

- General Counsel, ?

Dominick L. MANOLI,.

Associate General Counsel,

Norton J. Cog,

Assistant General domuik

aunteienn een

Solicitor Gener

Max POLLACK,

| Attorneys,

-. National Labor Relations Board

7 JUNE 1965.

G.6. GOVERNMENT PRINTING OFFICE 119685