Opposition Brief — Kamsler v. H. A. Seinscheimer Co.

* the Supreme Gourt a the nied Sil |

‘QorosER Term, 1965

—

No. 356

1 Posner, Inc, ET AL, PETITIONERS

v.

Nationa ‘Lagor Rezarions Bo

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES * OF r rer FOR THE SECOND. orονο,

‘BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN

: OPPOSITION

a — — 4%

| oa sanéw |

The opinion of the ‘court of appeals (Pet, 19.20

is reported at 342 F. 2d 826. The Board’s Decision

and Order (J. A. 2-30)! ‘are reported at 145 NLRB

1190. o il B Iisa A'S

: JURISDICTION 155 py

The decision of the court of 1 pe (Pet. is 200

was filed on March 15, 1965, and its derree (Pet. 25

30) was entered on March 30, 1965. On June 4,

8 1965, Mr. Justice Harlan extended the time in which |

ere references are to the print record prepared forthe ,

‘court of appeals and filed with the wera 5

784800681 0

to file « petition for a writ of certiorari to and inelud-

ing July 16, 1965. The petition was flled on July 16,

10965. The „ Of Chip Court i is invoked under

USC 25400). 0

1. Whether a were afforded a fair hearing |

by the trial examiner.

2. Whether the Board’s findings a are ‘supported by =

substantial evidence.

3. Whether the Board properly ordered e-

ment and back pay for the eight employees Who had

Petitioners (hereafter “

sale, and distribution of cosmetics, hairgoods, and re-

lated products (J.A. 9; 32, 348 : |

of 1962, the Union started an organizing campaign : a

‘among the Company’ s employees (J. A. 10-11; 36). On

August 3, 1962, the Union filed with the Board a

a petition for a representation election, and on the same

day it sent a letter to the Company claiming that it

represented a majority of the employees (J. A. 12; 37-39,

856-859). The Company: dia: not reply to the letter

(J. A. 12; 40). |

’ 2 District: 65, Retail, Wholesale ind Department Store Unico, .

25 “AFL-CIO. ‘The Union had made an unsuccessful attempt to

organize the employees in 1959 (J. A. 10). The Board found

chat the Company had engaged in unfair labor practices in this

- campaign: and in 1960. 133 NLRB 1573; 133 NLRB 1567.

egnforted in part and remanded i in eit, 204 F. 20 778 AEA. 2).

. | 12 ei

0 8 on git 1 15; “while. some epic were nig

With a Union organizer on the street before Working

time, Hamilton Posner, the secretary and active bead

of the Company (J. A. 10), told them that they did

not need to check i in and that they could let the Union

pay for their time. He added that they would néver

have an élection (JA. 12; 45-46). In the middle of

September, While the organizer was ‘tiking on the

street with an employee member of the Union Com-

mittee, Posner told him that he had no right to be

tere, and called the police (J. A. 12; 49-52, 138-139)

And on many other occasions Wen the organizer

spoke to workers in front of the plant on the public

street, Posner surveilled the meeting and called out to

the employees that he only wanted “friends” to be

working for him and that no election. would be held

(J. A. 12-13; 48-51, 55-56). —

The Board also found that the Company had dis-

eriminatorily discharged eight of its emplevees. Nor-

ma Pinero, for example, was hired in Januar. 1962,

was an active adherent of the Union, and held orga-

nizing meetings, the last on July 16, in her home (J. A.

133 37, 70). On July 20, the Company Superviser dis-

charged her, stating that Posner was dissatisfied with

her work and that she had been talking with other

(J. A. 13; 7475, 82). Later, the Super-

Visor admitted to an employee that Pinero and another

5 etaployee: had been fired deeause they belonged to the

a = =A polices officer appeared ‘i in a aguad car 1 left after Union

et identified themselves snd explained that they ‘were

C en hs

5 Union (JA. 4 95-96, 114 116). “th Septenbet, 4

when Pinero returned to the plant and asked Posner g

for work, he told her to go to the Union. When she

replied that she did not care for the Union, Posner

Asked if she was sure and then told her to come back | 2

the next month (J. A. 13; 76.77). Pinero returned

in October, but Posner told her that there was no

work available (despite the fact that he was hiring .

new employees). He. added that Pinero had been

laid off because she tried to cause. a “evolution” an

the second floor (J. A. 13; 77-78). a

Ricardo and Marcos Ortiz . wearing. . Union

buttons on August 3, 1962 (J. A. 14; 125, 129, 165).

The same day, the Supervisor warned them that ift ö

they did not abandon the Union they would be fired,

and he asserted that Posner could do more for them

than the Union (ibid., and J. A. 166). Later that

day, the Supervisor handed Ricardo Ortiz a paper

and told him it was a “layoff” slip, but added that

he did not ‘know “why” (J.A. 14-15; 166-168, 206).

The Company contended that ee s layoff was

due to a lack of work, but it hired another helper

on July 3¹, and thereafter rehired two more (JA.

17; 247, 249-251, 254.255). Marcos became a Union

delegate after the discharge of Pinero. In October,

5 when Mareos was talking to a Union official outside

the plant, Posner approached: them, shook his fist

at Marcos, and told him that his work would be con-

fined to the basement and he was not to go in to

„dhe second floor (A. 16; 135, 146-148). On Jovem-

ber 12, , after working ware dun gere plant. was

5

severely 1 by a fire (J. A. 16; 136-137, 296

297). Marcos reported on the following morning, but ;

Was told by the supervisor that there would be no work

for him, and that he should-leave his social security

number and return later for his pay. He returned

for his pay some days later, but was never recalled

to work (J. A. 16; 136-137, 154-155, 159-160). On

the day after the fire, other employees had been per-

mitted to remain and help in the salvage, ee

(J. A. 16; 155-156, 251, 255).

The Board, sustaining the ain e orf its trial

examiner, concluded, inter alia, that the Company

violated Section 8(a) (1) of the Act by interrogating

se its employees, threatening them with reprisals, sur-

veilling union activities, and attempting to prevent

meetings between a Union organizer and the em-

ployees. The Board also concluded that the Com-

pany discriminatorily discharged eight employees,

thereby violating Section 8(a)(3) of the Act (J.A.

24-25). The Board ordered the Company to cease —

and desist from the unfair labor practices found, and

to wma the discriminatees with . ‘Pay *. A.

6, 26-30). |

The court of appeals. eee the Board’ 8 findings

regarding violations of Sections 8(a), (1). and 8(a) (3),

and it enforced the portions of the Board’s ander, ‘Te

lating. thereto Pet. 20, 24) Wise i TON, Meee Pitty Pe tt, :

The Board dismissed the complaint ‘insofar as it en

mat the, discharge of a ninth employee, Selwyn ‘Hutchinsga,

violated. Section 8 (a) (3) . |

2 The court of appeals rejected findings that the Company had

violatsd Sections 8630 (40 und 809), and ‘those’ matters are

no longer involved in the case.

6

ae e 0s cent beltew ig corseit: nt 10 te

not in confliet with any other decision. There is no

occasion for further review.

1. Both the Board (J. A. 3, n. 2) and the court be-

low (Pet. 20) properly found that there wus no merit

to the Company's contention (Pet. 8-13) that the trial

éxaminer was biased against it. The main thrust of

the Company's argument is that the trial examiner |

demonstrated such bias: by uniformly crediting the

General Counsel’s witnesses and discrediting the Com-

pany’s But is is well séttled that “the total rejection

of an opposed view cannot of itself impugn the in-

_ tegrity or competence of a trier of fact. National

Labor Relations Board v. Pittsburgh Steamship Co.,

337 U.S. 656,659."

The Company also argues that the trial examiner’s

rulings on objections and his general handling of the

hearing, as well as his ultimate substantive decision,

establish his bias. The three examples selected. from

a transcript of ever 700 pages (Pet. 9-10) fail to sup-

port this charge. They show only that the trial exam-

iner wished to expedite the hearing by confirming cross-

examination to the ground covered on direct,’ and

that he admonished Company counsel for continuing

to — after a ruling had been made.

~ * Moreover, it may be noted that the trial examiner be

the portion of the General Counsel's case alleging that employee

Hutchinson was illegally discharged, because, in this instance,

he believed the Company's witnesses and disbelieved the Gen-

eral Counsel’s (JA. 23-24). See note 4, supra. g

5 See Bituminous Material & Supply Co. v. National Labor

Relations Board, 281 F. 2d 365, 372 (C.A. 8); Vorthern Pacific

Ry. Co. v. Urlin, 158 U.S. 271, 276.

| :

„2. The Company also claims (Pet. 13-16) that the

unfair labor practice findings sustained by the court —

below are not supported by substantial evidence. Such

evidentiary issues do not warrant review by this

Court. Universal Camera Corp, v. National Labor ö

Relations Board, 340 U.S. 474, 491. In any event,

the Board's findings are amply supported by the

record. The Company claims (Pet. 14) that Pinero

and Ricardo Ortiz were discharged before it knew of

their Union activity, but the reeord contains an ad-

mission by the Company Supervisor that they were

fired for belonging to the Union (pp. 3-4, supra).

Moreover, while the Company now contends that ac-

tive Union adherents Coello, Cuellar and Gordon were

unsatis factory employees, none of the three were

given this explanation at the time of their discharge.

Indeed, at the time Coello and Cuellar were dis-

charged, the only matter discussed was their Union

activity (J. A. 20; 103, 119.120). The record shows—

contrary to petitioner’s claim (Pet. 14)—that em-

ployees Ortiz and Santiago did not quit. Rather,

they were laid off and not recalled to work after

the fire, even though there was work available for

them (J. A. 21-22; 189, 250-251, 254-255). 8

There is no merit to petitioner’s claim (Pet. 15-

16) that the Board and the court found violations

here without any reference to the facts of the case

because petitioners had shown hostility to the Union

in the past. The evidenee involved here Was more

than adequate, and the eourt of appéals, in reviewing

the Fecard was ref not to give excessive weight to

+

§ »

| the Company 8 past violations, its Kejeetton ' of the

Board's finding that the Company violated Section |

8(a) (5) proves as much (Pet. 20-22) 3

3. Finally, the Company argues (Pet. 15-18) that |

the Board’s order is . improper because it requires

reinstatement of the eight discriminatees without re-

gord to the fact that the total number of employees

had decreased between the time of the discharges

and the Board hearing. This contention is barred by

Section 10(e) of the Act, for neither in its exceptions

to the trial examiner’s Intermediate Report nor in its

argument to the court below did the Company raise

chis point. National Labor Relations Board v. Ochoa

Fertilizer Corp., 368 U.S. 318; National Labor Rela-

tions Board v. Mine Workers, 355 U.S. 453) 463-464.

In any event, it is well-settled that the Board may

leave questions relating to the number of jobs avail-

able and other reinstatement matters for the compli-

ance proceedings which take place after a general.

order such as the Board issued here has been en-

forced. See, e. g., National Labor Relations Board v.

American Steel Building, 278 F. 2d 480, 482 (C.A.

5); Wallace Corp. v. National Labor Relations Board,

159 F. 2d 952, 954 (C. A. 4).“ 15

Feptile Workers Union v. Darlington. Manufacturing Oo.,

380 U.S. 263 (Pet. 16), is inapposite. In that case the em-

ployer arguably went out of business entirely. Here, the Com-

pany stayed in business, merely curtailing the size of its opera -

tions. See National Labor Relations Board v. Savoy Laundry,

327 F. 2d 370 (C. A. 2), cited in Darlington at 380 U.S. 273, n. 19.

_ \9 Martel Mills Corp. v. National Labor Relations Board, 114

F. 2d 624, 633 (C. A. 4), and National Labor Relations Board

v. National Die Casting Co., 207 F. 2d 344, 349 (CA. ” (Pet.

9

1 5 i . N 2172 os 6968 666 7 * 0

. — -

The petition for a writ of certiorari should be

denied. . .

e submitied. 12 f

RALPH S. Beni

Acting Solicitor General.

‘ARNOLD ORDMAN, | W i ter

General Counsel,

Dominick L. Manott,

Associate General Counsel,

Norton J. Come,

Assistant General Counsel,

Laurence S. Goxp, :

Attorney, |

National Labor Relations Board.

Avaust 1965. ay

17) are not to the contrary. In both cases the court found

that the discharges in question were based on economic rather

than anti-union reasons, and therefore refused to enforce. the

Board's order at all. Here, on the other hand, violations of the

Act have been proved, and the question raised by the Com-

pany merely concerns the extent of the relief that may properly |

be ordered, a matter which was not reached, in Martel Mills

and National Die.