Opposition Brief — Brewton Fashions, Inc. v. National Labor Relations Board

INDEX ,

, Opinions below_-_----- a sinain wah ink tanihivaltes a ss

”- soe tie cmniebe ion shane a

‘ Statate- involved. ..........:.-.-.--..-.- pA

| RE, ree nee eee

I oa ae idee acd Sie e Lone

= A. Introduetjon._-........--- capelieeanay <5

B. The layoffs and discharges. .___....-_.--

_ C.:The decisions below____/_i___.____2____

ee eer cca alae

* Conclusion. be Khiwhiwietink auane deee abate Beacee

_| CITATIONS

_ Cases: ms

_ National aa Relations Board. v: Fred r.

Weissman Co., 170 F. 2d - 952, certiorari

Genie’, 206 UB. 918.2 2 ,

National. Labor . Relations Board v. dni |

Tire & Rubber Co., 129 F. 2d 661, certiorari

granted, 317 U. S. 622, writ dismissed, 319

National Labor ies Board. v. H udson

Motor Car Co., 128 F. 2d 528..-......._.::-

‘National Labor ‘filidions = v. N ewton,

- 214 Pe ee eee ee ala es A

_ ‘National Labor Relations ead wv. #. B

Mallory & Co., 237 F. 2d 437____..______ :

Porto Mills, Inc., 149 NLRB SOIR. cen scewy “ES

Universal Comete Corp. v. National Labor .

Relations Board, 340 Dee OPE oo bnwcbce’.

° ; : qi)

230-—580---66-——1 ;

— :

NOON NHNN EH &

cS

i

10°

Sta sate: ene 7 |

; N atioeal Labor Relations Act (49 Stat. 449,

- as amended, 29 U.S.C. 151, et seq.):

| mee Section RAN AC aL atu me wien fe |

; « 4 . 7 ; Section es A AEE aN,

‘ * ie Section | ee OR ERTS

TT) Gis ccisncecapégcenads ed

° :

ze

Page

4 a ‘

Oe

a)

a 1.

Jn the Supreme Court of the inte Sines

Ocroser TERM, 1986

No. 427 | : a

_ Brewron Fasuions, INc., PETITIONER.

A shshiplibe hen 0 Sale

‘ NATIONAL LaBor RELATIONS Boarp

‘ ON’.PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STAPES COURT OF APPEALS FOR THE FIFTH CIRCUIT

. ‘ e . 2 , ; : ?

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

jet ee . OPINIONS Ww : 4,

~The opinion of the court of ap (Pet. App. Saou te

la-20a) is reported at 361 F.-2d-8.--The-Board’s

-decision and order (R. 250-260, 117-203)" are reported oe

at 1% N — 99.

las

JURISDICTION <

The Judipeient of the court of appeals was entered

writ of certiorari was filed on August 8, 1966. »The

—— )

*“R.” refers to the volume of formal papers printed for uss ~

of the court below. “J.A.” refers to the portions of the testi-

mony and exhibits printed as a joint apgeodis to the Parties’

brieis.

(1),

on May \10, 1966 (Ret. App. 2a). The petition fora

% aie 2 2

jpivindiction of this Court is or under 28 U. 8. a:

158)... . 7

STATUTE INVOLVED

The relevant portions of the National Labor Rela-

tions Act’ (49 Stat. 449, as amended, 29 U.S.C. 151)

et = ),2 are set forth i in Appendix B to the — |

QUESTION : ‘PRESENTED

- Whetlier substantial evidence supports thé — am

finding that the employer violated Section 8(a) (3)

and (1) of the National* Labor Relations Act by |

; ~ sanetioning the forcible expylsion of a group of em-

' ployees from his plant because of their support of

_. aunion he disfavored. — .

‘STATEMENT.

> + A. INTRODUCTION:

', Petitioner | (“the Company”’) is a ubnitiney of.

J udy Bond, Ine., a seller of ladies’ blouses. Prior to

the Company’s formation, practically all J udy Bond

__ blouses had been_made-by-contractors in Ne ew York,

which were organized’ by the International Ladies —

Garment’ Workers’ Union (“‘ILG’’) under a master

contract with the National Association of: Blouse —

Manufacturers. In the Fall of 1961, Judy Bond re- -

signed from the Association, and began. negotiating

with the ILG- separately, but the parties 1 were. unable

_to reach arf-agreement (R. 120-121; J. A. 374-375, \

378-879). . In December 1961, J: ae ‘Bond ‘formed *

“the Company, which, one month later, purchased the

Brewton Manufacturing Company in Alabama and

. ‘3

} ° ’

ot

a ,

} | ore Ls aid. \

comniitneed to manufactitre blouses for J ady Bond

with. Brewton’s eXisting equipment, management and

employees (R. 121; J.A. 351). On January 10 and

11, 1962, the Company negotiated a new contract with

- the United Garment Workers, of America, Local |

Union 422 (“UGW”’), which haa represented Brew-

ton’s employees sinee 1957 (CR. 121-122; ‘J.A. 353,

_ 355-359).

. The ILG@ regarded the bes as a Paes

shop”? and began an organizational campaign at its

plant and warehouse during the latter part of Jan-—

uary 1962 (R. 131-133; J.A. 390-392; 1611). Between

February and ‘May, ‘several employees made known -

their preference for the ILG rather than the UGW.

In response to this activity, the Company interro-

gated the ILG adherents concerning: ‘their, union

activities and. threatened them with reprisal, pro- °

- mulgated and enforced no-solicitation rules which dis- —

criminated against the ILG,. and banned the ‘wearing

__of ILG buttons. The Board found - that, by this

oe

>»

,

conduct, the Company interfered with its employees’

_ organizational rights, in violation of Section 8(a) (1)

of the Act. (R: 178-180, 254-255). The Board fur- ~

ther found that the Company had assisted the UGW,

_in violation. of Section 8(a) (2) of the Act (R. 183- _

184, 255-256). The court of appeals. sustained these

~~ findings (Pet. App. 6a-9a, 16a-18a), and they ace not -

_ challenged here. The only challenge is to the

Board’s fuvther finding that the Company, in viola-

tion of Section 8(a)(3)\and (1). of the Act, laid off —

or discharged ten eid, because of their adher- |

. ence to the ILG. |

B. ‘THE LAYOFFS AND» DISCHARGES

“On May, 23, 1962, Pay Madden and Lynn Estes re-

| "ported to work wearing ILG buttons. While several

- women employees held Madden, another. employee re-

moved the/pin and threw it away (R. 142-143; J.A.

_ 269, 417, 458-459). When Madden returned. ‘wearing

p another . -pin the employees. again forcibly removed it,

tearing Madden’s dress in the process (R. 143, 253,

i) a 2; J.A. 270, 96, 191-192, 218, 224-225, 333, 418--

~- . 419, 458-459, : 629-630). Foreman Eskridge ‘stood ———.

“nearby watching the disturbance, but | did- nothing

" (R. 143; JA. 192),. and Floorlady Gandy ° ran ‘into

"a foreman’s- office and. exclaimed ‘‘“They’ve got the,

-pin off her!” Gandy’ added that she. ‘would. stomp a

~ [Madden] in thé floor!” and that she hoped: “they

* would run her butt out!’ (R. 143; J.A. 192, 269, 333).

Plant Manager. Byrd ‘then Arrived, ‘reprimanded :

Madden’ for wearing the. button i in the plant, and sent

_ her home until’ the other women “cooled off” (R.

143-144; J .A,*.271, 630-632). Later that morning, .

_ Byrd called Estes into his office and told him that he

_. would be ‘discharged if he wore an ILG pin in the

- plant again (R. 144; J.A. 253). Several hours later,

.%

Compariy Vice-President Rothenberg, speaking over

the plant’s public address system, told the employees

' that “‘[t]he LL.G.W.U. does not belong’ here and we ~

- will not tolerate any action which might ereate dis-

*The court balow sustained : the Board’s finding (R. 196—

128) that Foreman Eskridge and the floorladies were. super-

- visors within the meaning of- Section att) of the Act, 29

‘. U.S.C. i ad rs om 6a). _

. s ?

sentions and: disturbances in the plant, Weare very _ ee

- gratified by the loyalty most of you have shown to - -

the Company * * #7 (R, 144-145, 253; J. A. 362,720).

Shortly. after ‘1 p. m. that same day, a group of »

male employees forcibly ejected-Estes from the- plant Ge.

- for having worn an IL@‘pin (R. 145-146; J.A. 98-

99, 120, 148, 193-194, 225-226, 253-254, 3834, 461-

' 462, 508-509). ‘At the, same time,. a numberof fe-

male employees, .ineluding Mary Braddick, forced

ILG@ adherents ‘Jones, West, Bell, and Chavers to

leave the plant (R. 146; J.A. 99, 1494150, 194, 226-

227, 334, 421, 470-471). Just before these evictions, - |

Floorlady Gandy told two- other floorladies to come

with her to Foreman Williams’ office, and difring the

' struggling, - ‘Gandy watched from the office door with .

apparent glee (R. 147; J.A..307),

The four evicted female employees complained to

Plant: Manager Byrd about their treatment (R. 147;. ae

J.A. 100-101, 151, 195, 227, 632-634). When West |

asked whether Byrd could make the plant workers -

behave so that the four eould go back to work, Byrd

_ replied, “No, I can’t handle them * * * that’s what -

you call a mob” (R. 147-148; J.A. 100, 195). Bell

then asked whether ‘she could return to work the fol-.

a lowing day, and ° Byrd answered that it would be at -

her own risk because he could not give her ‘fany kind

of protection in the plant”? (R. 148; J AL 100-101).

He. told the group that they should stay at home for

their own ‘protection, and that, if they would call

from time to. time, he would advise .them when to.

return (R. 148; TA. 101, 122, 634). The four women :

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&. °°

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left the iene and. reported the incident to the local

sheriff (R. 148; J.A. 123)166-167; 218). ’On May 24,

a Byrd advised the group not to come to work for a few.

. more.days (R. 148; J.A. 101).

The next morning, May. 25, the five evened 3 em-

) ployees. and Madden went to Byrd's office seeking to

return. to work. Byrd told them that ‘they should .

lay off a few days longer as the women were stilt

upset and he could offer them ‘‘no. protection unless

there is violence in the mill’”’ (R. 148; J. A. 101-102,

196-197, 152-153). Byrd assured four of the em-.

“ ployees that they. still had jobs, but he discharged _ |

Estes and Madden, the’ former allegedly for wearing

an ILG pin on May 23 and the latter allegedly for

' failing to make her production quota (R. 148-149,

18, 256, n. 5; J.A. 255-256, 272-273, 624). :

.. On the morning of May. 31, Chavers, Bell, J ones,

and West reported for work at Byrd’ s office i in accord-

ance with his instructions (R. 149-150; J.A. 103-104;

197, 641). Byrd assigned Jones and Chavers to their

- old jobs but assigned West and Bell to operate sewing

_ mnachines, so as to reduce their contact with other

-. workers (J.A.. 104, 229, 642). He cautioned all four.

that he wanted no discussion of unions inthe plant® —

(BR. 150; J-A. 105, 198, 154, 229, 641). Foreman Esk-

* On ‘the previous day, Byrd had posted the following notice

(R. 150;, J.A. 641-642, 716):

TO ALL EMPLOYEES: ) ae

_ .Fhis “is to refresh your memory of a previags ‘notice

posted on the ‘bulletin, board and to advise ‘you that under

no conditions are we to have. any violence in the plat on

the. company propenty.\

A

7 ’

, ‘ ,

aidge attemptoa to escort J ones and emi to. their

work stations, but a group of about 25 women forced —

them through: the, door leading into the lobby (R. |

151; J.A. 155-156; 230).. Eskridge ,pulled open. the :

ane to Byrd’s office. and cried. out, “Byrd, they are.

running | [Jones] and [Chavers] out again, and Mary

. Alice Braddick started every darn bit of it” (R..151;

J.A. 105, 199, 643). Byrd sent the four ILG sup-

‘ porters home, and the. other employees returned to

_ work (R.°151; J.A. 643)... Mary Alice Braddick was |

not: reprimanded; in June, she was promoted to Spe,

lady (R. 151, n. 54; J.A. 446).

On June 4, each of the fous women. employees. *:

wrote Byrd protesting | that he had permitted. the ~.

other employees to evict them from the plant; they.

also inquired. when they, could return -to work and

.whether .they ‘would receive protection. (R. 152; J.A...

T17, 722, 724, 727). Three weeks later, on yet yr

Byrd replied that’ they ‘had ‘intentionally and wil-

fully provoked” the demonstrations against them -

and that, if they wished to work in the plant, they

- must “‘avoid the. inciting of any further demonstra- Be

tions” (R. 152-153; J.A. 645, 718-719, 7125-126, 728).

The four women returned to work on J uly 9, and |

' thére were no incidents on that day or :the next

(R. 154-155; J.A. 110). On July 11, West heard a

fellow eniployee tell Floorlady Smith that ‘‘they ‘were

fixing to run us out again’. (R. 155; J.A. 111).

Floorlady Smith walked. off, and 15 or 20 employees

‘reinoved West and the three other newly: returned

employees: from’ their work stations, (R. 155-156;

8

_ J.A. 111, 160, 203, 233, 491-492). Floorladies Smith .

and Braddick watched the eviction but did nothing

(R. 156 ; I. A. 204). Foreman: Eskridge took Bell,

, Jones and’ Chavers to Byrd’s office and told Byrd

' that they had not “‘done anything to cause the dif-

- fieulty” (R: 156; J.A. 204, 161), Byrd replied, ‘I

know they weren’t causing any trouble,” ‘and asked _

‘the names of those who. were in the offending group —

“(R. 156; J.A. 161,. 204-205). Byrd sent the ILG

supporters home, promising that he would. call. them

when he thought; ; it advisable for them to return to

work (R. 156; J.A. 161, 205, 235). He did not there-

after recall any of them. i 156; J.A. 111-112, 162,

205). -

.On August 3, Site more employees came to work

wearing ILG pins (R. 157; J.A. 286, 307, 320, 337).

Shortly thereafter, Byrd told them that weaving the

_ pins could result in violence and that they must

either take the pins off or go on layoff until senti-

ment in the plant had changed (R. 158; J.A. 730,

_ 286-287). The four employees left the plant rather

than remove their pins, but returned to work on

- August 16, without the pins. On that date, they were

evicted. from the plant by a group of employees ,

_ (R. 160; J.A. 289-290, 322, 340, 428, 309). During *.

the eviction, Floorladies Gandy, Smith, and Boddi-

- ford stood by watching and bees ots il (R. 160;

J.A. 309-310, 326, 341). ;

«The evicted workers reported what had happened

“to. Byrd, who told them that their presence in the

plant was causing the disturbance (R. 160; J.A. 310,

a

324-325) inl that “ [t]t here wasn’t anything he could do

about it.” He advised that, for their own protection, .

they stay home until the situation in the plant permitted

their return (R. 161;'J.A. 291, 341-342). One of the

four evictees called Byrd early in November and asked

when she might return, but Byrd said he had no idea

(R, 161; J.A. 342). Byrd did.not call the others (Re !

161; J. A. 291, 311, 326). a, :

No employees were punished for taking’ part in the

evictions, although the names of those responsible

were given to Byrd by the ILG adherents (R. 147, _ |

156, 160; J.A. 100-101, 195, 161, 325), by supervisory —

personnel (R. 151; J.A. 105), and by participating

employees (R...162-163; J.A. 483-444, 438-439). Nor

did Byrd interrogate the employees whose participa-

tion in the evictions was called to his attention (R.

163 ; J. A. 549-570; 399, 495, 511, 530-532).

ld

©. THE DECISIONS BELOW

The. Board concluded that the Company, by failing

to take reasonable measures to prevent that. action,

had “ratified and condoned the forcible ejection of the __

ILG supporters, and had thus in effect caused them to

be laid off or discharged on account of their ILG

activity, in violation of Section 8(a)(3) and (1)

of the Act” (R. 256-257).. The Board ordered the

Company to éease and desist from “failing to take all

reasonable measures necessary to prevent supporters

of [UGW] from evicting employees from its * * *

plant because of their membership in, or support and

10

assistance to” another - labor organization, and from .

discouragirlg membership.in ILG by discriminatorily’ .

discharging .or laying off any employee (R. 191).

Affirmatively, the order requires the Company to re-.

-- instate the employees discriminated against with back —

‘pay (R. 192, 195). The court of. appeals .enforced

the Board’s order in full, stating that the evidence —

: showed that the Company not only acquiesced in the

_--evietions, but encouraged them (Pet. App. 15a).

‘The broad question which petitioner seeks to raise

here -(see Pet. 2) is not actually presented by this.

‘ ease. Whatever may be_ the obligation of an em-

. ployer who is an innocent bystander to anti-union

activity instigated by his employees, it is clear that

an employer violates the Act where, as here, he sanctions

and actively supports the use of violence as a means of. .

_ thwarting union activities. National Labor Relations’

_ Board v. Newton, 214 F. 2d 472, 475 (C.A. 5); Na-

tional Labor Relations Board vy. Fred P. Weissman

Co., 170 F.2d 952, 954 (C.A. 6), certiorari denied, 336

U.S. 972; National Labor, Relations Board v. Goodyear

Tire & Rubber Co., 129 F. 24 661, 664 (C.A. 5), cer-

tiorari granted, 317 U.S. 622, writ dismissed, 319 U.S.

776; National Labor Relations Board v. Hudson Motor

Car Co., 128 F. 2d 528, 533 (C.A. 6). Thus, the issue -

te

raised by the petition is, essentially, whether substantial _

evidence supports the Board’s finding that the Company

sanctioned the forcible ejections from its plant. The

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11

. court of appeals upheld the Board’s finding, and there

-is-no occasion for further review of this. evidentiary

issue. Universal Camera ‘Corp. v. National Labor

Relations Board, 340 U.S. 474; 490-491. In any

event, in the light of the Company’s widespread acts

of restraint and coercion against ILG adherents (see

Statement, supra,.p. 3) and the course. of con-

duct, which it engaged in. when the disturbances

occurred (see the opinion of the court below, Pet.

App. 15a), it is evident, as the court of appeals con-.

eluded, ‘‘that the Company not only failed, to take

adequate steps to prevent violence to supporters of —

‘the ILG but also that it waite 4 a such

actions’’ (ibid. ).*

| Contrary to petitioner (Pet. 17-24), the ‘duiblans

' below is not in conflict with any other decision. Most

_of the cases cited by petitioner involved employee

animosities unrelated to union activities or provoked _

~ by unprotected conduct. The disturbances involved

in National Labor Relations Board v. P. R» Mallory. &

Co., 237 F. 2d 437 (C.A. 7), and Porto Mills, Inc., 149

NLRB 1454, were related to union activities. In

those cases, however, the court and. the Board, re-

_ . spectively, found that—unlike the present situation—

‘In this situation, it cannot properly be contended that the

requirements of the Board’s order are insufficiently - clear (see

Pet. 13-15). It is evident that the order requires the Company

to cease its assistance and encouragement to those engaging in

violence and to take appropriate measures to _prevent such violence *

= recurring. -

12

the employer had neither encouraged nor condoned -

' the discriminatory conduct of the employees.’

_ CONCLUSION ,

The petition for a writ of certiorari should be

denied,

a as submitted.

THURGOOD Marsu

Solicitor enchal.

Anwoup ORDMAN asst!

General Counsel,

Dominick L. MANOLI,

. Associate General Counsel,

Norton J, Come, -

Assistant General Counsel,

Lina R. SHER,

Attorney, -

National Labor Relations Board.

SEPTEMBER 1966..

ea Mallory, the. Court found that the—eompany ‘had “no

knowledge that the employee in question was being ejected for

non-membership in the union, and “it, like the union, gave no

assistance either directly or indireetly to the group of em-

ployees who for some reason or other “were hostile to her”

(237 F. 2d at 446). In Porto Mills, the Board found that the

company had refused to atcede to the demand of the anti-

union employees. that the employee i in question be discharged;

rather he, was discharged because of his refusal: to cooperate in

the company’s efforts to resolve the dispute—i.ec., by taking a

week off with pay until things “calmed down” (149 NLRB at-

~ 1455).

U.S, GOVERNMENT PRINTING OFFICE: 1966