# Opposition Brief — Kamsler v. H. A. Seinscheimer Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0759%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 837 ## Text * 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0759%3A2. Public record. Not legal advice.