Opposition Brief — Bencel v. Frost

nite Supreme Gourt of the Wited States

OCTOBER TERME, 1965

No. 298

DANIEL ConsTRucTION ComPANY, INC., PETITIONER

‘ oe - Vv.

NatTIonaL Labor RELATIONS Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS. BOARD

: OPINIONS BELOW

The opinion of the court of appeals (Pet. 20-39) is

ported at 341 F. 2d 805. The Board’s Decision and

Order (Pet. 41-78) are reported at. 145 NLRB 1397.

: JURISDICTION | .

The judgment of the court of appeals enforcing the .

Board’s order was entered on January. 11, 1965 (Pet.

21).. A petition for rehearing was denied on March

29, 1965 (Pet. 40). The petition for a writ of cer-

tiorari was filed on June 28, 1965. The jurisdiction

of this Court is invoked under 28 U. S.C. Lath).

182-6765: qa)

2

QUESTIONS PRESENTED

1. Whether substantial evidence supports the

Board’ s finding that the Company. threatened its em-

ployees with loss of employment if they selected the

Union as their collective bargaining representative

and promised them continued employment if ‘they

rejected the Union.

2. Whether the court of aeviale had jurisdiction )

to review a Board representation decision which did

not form the basis of an unfair labor practice order.

before the court. |

STATUTES INVOLVED ;

The yelevant provisions of the National Labor =

Relations Act are set forth at pages 16-19 of the

petition.

STATEMENT é

A. THE BOARD’ 8 FINDINGS OF FACT

On September 21, 1961, pursuant to a petition filed

by the Union* under Section 9 of the Act, the Board

directed an election among the pipefitters employed

‘by the Company in the mechanical department, of its

Greenville division.. The Greenville division at the

" time of the petition employed about 600 pipefitters at

- various projects. (Pet: 79-84.)* For a period of sev-

1 United Association of Journeymen and Apprentices of the

Plumbing and Pipefitting Industry of the United States and

Canada, AFL-CIO. ,

2The Board determined that certain pipefitters not in the

Company’s employ at'the time of the petition: had a substantial

continuing interest in the Company’s conditions of employment

because of their intermittent employment on the Company’s con-

struction projects and their expectancy of future employment.

It therefore extended voting eligibility to employees i in the bar-

3

eral weeks prior to the election, scheduled for Novein-,

ber 16, 1961, Executive Vice President Buck Mickel

and Mechanical Department Manager Theodore

Johnson, accompanied by Personnel Director Barring-

ton King, toured the job sites and spoke to groups of

pipefitters about the election. They visited about 15

projects and made between 25 and 30 speeches. .

Mickel, who always spoke first, had no written speech

but attempted to give the same talk each time. John-

son covered any points he thought needed further

: explication. (Pet. 464i, 51, 52; J.A. 339-345, 399-

400.)*-

Mickel and Johnson tei in their semua (1) |

that the Company would lose business if unionized ;

(2) that the Company was able and willing to keep

the pipefitters at work under existing conditions; and

- (3) that the election would be futile because of the

Company’s intention to continue hiring ‘‘at, the gate”’

_ and to litigate for years the propriety-of the Board’s

election order (Pet. 46-55). For example, Mickel

told 140 pipefitters at one project that the Company

did not think that it “could compete or get as. many

jobs as [it] would without being union,” but that

the men-eould expect continued employment when the

job was over if the Company ‘remained non-union”

and that they should contact their foremen about jobs ;

that the Company “regardless of how the election.

| went” would continue to hire its employees ‘‘through

gaining unit who had worked for the Company for 30 days or

more during the preceding 12 months, or for 45 days or more

during the preceding 24 months including some time during

the preceding 12 months. (Pet. 82-84.)

347,A.” refers to the Joint Appendix in the court below.

0

A.

the gate, without coming through a business agent’

and that, if the Union: -won the election, the fican .

would protest the “absentee ballots” and ‘tkeep it in

court for from. eight to ten. years” (Pet. 48; J.A.

129-130). Johnson told the employees at another

project that “industry is coming south to get away

from the Union” and that the Company was “negotiat-

ing a lot of jobs now” which — employees would not

get “‘if we vote to go union”; that their foreman .

would hire anyone who wanted to go with him-to an--

other project when the present job ended, but the

Company would never hire through a union business.

agent; and that the Company had been assurett by its

lawyers that they could keep the matter of voting at

the election “in court for ten years if necessary””

(Pet. 47; J.A. 113). At two otek projects, the

pipefitters were told by Mickel and Johnson. that the

Company’s customers preferred a nonunion contractor ‘a

- and that the Company felt it would not get as many

jobs if it were union; that the Company would con-

tinue to_ hire at the gate: even if the Union won the

election; and that the Company would tie the election

- up in court for a number of years (Pet. 46-47, 49, 50;

J.A. 140-141, 149-150, 175-176, 234-236). = |

Also during the pre-election period, foremen at one

project told’ employees that they. had. been instructed

to find. out how they felt about the coming election

and report back to management . (Pet. 55-56); a fore- —

man at another project polled -his men several times —

on whether ‘they were “for or .against’’. the Union

(Pet. 43) ; and foremen at several projects questioned

employees about their union. views and threatened

5

employees ‘with economic’ reprisals because of their

union activities (Pet. 42-43, 56-59, 61-65).

The election was held as scheduled on November

16, 1961, and the Union lost by a vote - 684 to 247

(Pet. 45; J.A. 23). | |

B. THE.BOARD’S DECISION AND ORDER

The Board found that the pre-election speeches of -

Vice President Mickel. and Mechanical Department

Manager Johnson violated Section 8(a)}(1) of the

- Act because, considered as a whole, they threat-

| ened the employees: with loss of employment if the

Union won the election and promised them continued

employment if the Unien were defeated (Pet: 41, 67-

68). The Board also found that the Company fur-

ther violated Section 8(a)(1) of the Act by instruct- - -

ing foremen to inquire and report on the union views

and sympathies of its employees, by coercively. inter-

rogating and polling employees. concerning - their

union views, sympathies, and voting intentions, and 7

by threatening-employees with economic reprisals ‘be- .

cause of their union activities (Pet. 42-43, 66-67).

The Board ordered (Pet. 44, 75-77) the Company |

to cease and desist fronr the unfair labor practices

, found and from any-tike or related ieee and to

Post appropriate not

otices.*

_ OTHE COURT OF APPEALS? DECISION ;

‘The court of appeals (Judge Bryan disootstin zg)

_ concluded that - substantial evidence , supported the

~ * The Board, in the. representation proceeding which was con-

solidated for hearing - -with the unfair labor practice case, also

sustained the Union’s objections to the November 16 election

and set it aside (Pet. 41, 68-69, 77).

Agee

\ : a.

Board’s unfair labor practice findings and enforced

the Board’s order (Pet. 27-36). . It further held that -

. it had no jurisdiction to review ‘the representation

case (see n. 4, supra), and dismissed the Company’s -.

petition. for review insofar as, it challenged the ~

-Board’s s determination, of voting eligibility i in the No-

. vember 16 election and ‘its action i in setting aside that .

‘ election. (Pet: mhawe

as The o seni of appeals sustained the. Board’s finding

thatthe ‘Company’s pre-election | speeches considered

as a whole threatened: the pipefitters with loss of

_ employment if they selected the Union as their col-

. lective bargaining representative in the coming Board

, election and promised them ‘continued employment if

they .rejected the Union ( Pet. 30-31). In ‘these

$2 circumstances, the Company’s contention (Pet. 5-12)

,

* cost.

_. that the speeches were only an expression of views

‘. and: opinion. privileged by Section 8(¢) of the Act

' presents solely an evidentiary issue which does not

' warrant review by: this Court... Universal Camera

Corp. v. National Labor Relations Board, 340 U.S.

474, 491. -A different conclusion ‘is not required by.

the Company’s “contention (Pet, 6-12) that. the

_ speechés could not be found to contain threats or _

promises of benefits because, Separately considered, —

the statements made were all privileged. As the

court of appeals pointed out: ““Words and phrases,

,each lawful when considered alone, can be wnited in —

such a fashion as to yield an improper end product’’

(Pet. 30). ‘The Board and the court of sppealy:

7

reasonably held that the. statements here were 80

_ united.” |

2 There i is no merit to petitioner’s contention that

the court of appeals had jurisdiction under Sections ° .

9(d) and 10(f) of the Act to review the voter eligi- |

bility rules set forth in the Board’s decision and di- ~

rection of election’ in the representation proceeding |

(Pet. 12-15). As the court of appeals pointed out,

those sections of the Act permit a court of appeals to

review Board action in a representation: proceeding _

only ‘‘when review is sought in an unfair labor prac-

tice case which is based in whole or in part upon a_

Board certification in a representation case’’ (Pet.

25). National Labor Relations Board v. Falk Cor-

poration, 308 U.S. 453; A.F. of L. v. National Labor

Relations Board, 308 U.S. 401; National Labor Rela-

tions Board v. Int. Brotherhood, 308 U.S. 413; see

Botre v. Greyhound Corp., 376 U.S. 473, 479: The

representation: decision here did not form the basis of

the unfair labor practice: order before the court of

appeals. Petitioner will have an opportunity to have

its contentions respecting the election reviewed when,

and if, the Union wins a second election, is certified,

and the Board orders petitioner to bargain based on

that certification. Petitioner’s reliance (Pet. 13-14)

upon Leedam v. Kyne, 358 US. 184, is misplaced ; that

case concerned district court jurisdiction, the Court

5 It may be noted that, even apart ‘from the speeches, the -

Company’s other coercive. conduct (pp. 4-5, supra), which is

not contested here, furnishes substantial support for the Board’s

order.

expressly noting that no question of the jurisdiction

of the courts of appeals to review Board orders under

the Act was involved (at p. 188), |

é; CoNcLUsroit

. The petition for a writ of certiorari should be

denied.

’ Respectfully submitted.

; | ARCHIBALD Cox,

Solicitor General.

ARNOLD ORDMAN,

General Counsel,

Dominick L. Manons,..

Associate General Counsel,

Norton J. ComgE,

Assistant General Counsel,

MELVIN PoLLack,

Attorney,

National Labor Relations Board.

JULY 1968