Petition for Writ of Certiorari — Overnite Transportation Co. v. National Labor Relations Board

Supreme Court brief1967

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*. INDEX

THE OPINIONS OF THE CouRT AND ADMINISTRATIVE

Page No.

2 . AGENCE BRLOw Lainie . Ps

af Jomsnicrion OF THis Court

QUESTIONS PRESENTED FOR Review te

STATUTES INvoLvED

STATEMENT OF THE CASE —

REASONS Way A ‘Warr OF CnT10RAn SHOULD

BE GRANTED

“©

3 “Ancotent Aupiirvine Reasons WirY A Wait oF }

. | CERTIORARI SHOULD BE GRANTED .

_I. Nullifigation Or Modification Of The Order Of

____——~The Interstate Commerce Commission By The

N. ational Labor Relations Board Is Specifical-

ly Prohibited By Statute

_ IL. The National: Labor Relations Board Had ‘No _

Authority To Require The Petitioner To En-

gage In Anticipatory Pre-purchase Collective -

_ Bargaining And The Court Of ‘Appeals Ex-

ceeded Its Authority In Sustaining The ©

Board’s Order On Grounds Not Considered

By The Board

_ 26

III. The Board’s Unprecedented Siig Was Is-

sued Arbitrarily In Disregard Of The Peti- ‘an

tioner’s Righty: Ami.Of The Limitations Upee

ca The: Boss Authority et

. 37

"Page No. -

W. Weetiee Consolidations Which Would Further : |

_ The Public Interest-In Efficient ‘Transporta-

tion Service Will Be Thwarted By The Conflicts

Sore Which Are Created By The Board’s Order And -

ee _. - The Decree Of The Court Below _____ 48

Tr. APPENDIX - be 2 ; la

Opinion Of The Court Below aes’ a

| CITATIONS’: |

\. Amalgamated Transit Union, AFL-CIO v. United States, _~

\/ 385 US. 38, 87. Ct. 240, 17 Lied. 2 35 (1966) 7

. American Ship Building Company. National Labor

Relations Board, 380 U.S. 300,85 S.Ct. 955, dl

Led. 24 855 (1965): cle”

Armco Steel Corporation v. National Labor Relations ,

— Board, 344 F. 2d 621 (6 Cir. 1965) — 36

| Brotherhood tof Locomotive Engineers v. Chicago and

North Western Ry. Co., 314 F. 2d 424 (8 Cir. 1963)

. cert.den. 375 U.S. 819, 845. Ct. 55, 11. ed. 53

I becca se SE | ae

* Burlington Truck Lines, Inc.v.UnitedStates, .

371 U.S. 156, 83S. Ct. 239,9L.ed.2d207 |.

(1962) sci el ~_____32, 43, 44,49

Chemrock Corporation, 151 NLRB 1074 (1965) 41, 48

Consolidated EdisonCo.v. National Labor Relations ,

. Board, 305 U.S. 197, 59S. Ct. 206, 83'L. ed. 126.

Ame) 3 : . 47

Page No,

_ », Cooper Thermometer Co. v. National Labor Relations

—°* Board, F. 24__, 65 LRRM 2113 (April 1967) -45, 46

Crossett Co., 140 NERB 667'(1963) . act 26° :

Donnelly Garment Co. v. International Ladies’ Garment a6

Workers’ Union, 99 F. 2d 309 (8 Cir.'1938) 26

| Ellery Products Mfg. Co., 149 NLRB 1397 (1964) 4 26

Hyland v. United Air Lines, Inc.,254 F. — 367 eo Bi

(N.D. Ill. 1966) dade ith ane oe

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America and Local

549 v. United States and Interstate Commerce ey

Commission, 253 F. Supp. 481 (D. D.C. 1966) -”._.7, 20

International Ladies’ Garment Workers’ Union v.

- National Labor Relations Board, 366 US. 731,

81S. Ct. 1603, 6 L. ed. 2d 762 (1961) f 26

John Wiley & Sons, Inc. v. Livingston, 376 US. 543,

84S. Ct. 909, 11 L. ed. 2d 898 (1964) 23, 32, 33

Local Lodge No. 1424, International Association of

Machinists v. National Labor Relations Board,362

US. 411, 80S: Ct. 822, 4 L. ed. 2d 832 (1960) 26

May Department Storés Company v. National Labor

Relations Board, 326U. S. 376, 66S. Ct. 915, I

90 L. ed. 145 (1945) 3 : 36

McLean Trucking Co. v. United States, 321 U.S. 67,

64S. Ct. 370, 88 L. ed. 544 (1944), ) ag ae

_ Menges v. Dentler, 33 Pa. 495 (1858) _____. 25

‘National Labor Relations Board v. Guy F. Atkinson Co.,

198 F.2d 141 (9 Cir. 1952) ___. 42

ees

‘ll

Bon No.

= - National Labor Relations Board v. Kats, 369US. 2OG, 35+ =:

ae 82S. Ct. 1107, 8L.ed. 2d 230 (1962) . 36.

National Labor Relations Board v. Seven-U p Bottling |

Co., 344 U.S. 344, 73 S. Ct. 287, 97 L. ed. 377 (1962) 48

* National Labor Relations Board v. Teamsters and

~ Allied Workers, Hawaii Leest 996, 313 F. 2d 655

(9 Cir. 1963) _. 7 « 26

Oling v. Air Line Pilots Association, 346°. 2d 270 . pa

(7 Cir. 1965) —___. a

' Ovenite Transportation Co —Purchase—Rutherford :

Freight Lines, Inc., 79 MCC 568 _____. 2

et Republic Steel Corp. v. National Labor Relations Board,

: 311 U.S. 7,615. Ct. 77,85 L. ed. 6 (1940) a. 47.

Securities and Exchange Commission v. Chenery Corp. i

318 U.S. 80, 63 S, Ct. 454, 87 L. ed. 626 (1943)... 31

| Securities and Exchange Comimission v. Chenery Corp.,

332 US. 194, 67S. Ct. 1575, 91L. ed. 1995 enn seal

United States v. Lowden, 308 U.S. 225, 60S. Ct.

248, 84 L. ed. 208 (1939) SEH BS Fe 14,16

| Universal Camera Corp. v. National Labor Relations

ee Board, 340U.S. 474,715. Ct. 456, 95L. ed. 456.

(1951) ade ? ie gQ

a Wilson. New,243US. 332,375. Ct. 298, : 9

61 L. ed. ween: eee sete KE

5 diet

Statutes:

- Aviation Act, 49 US.C. $1384. eee

"Direct Appeals; “Three-Judge Courts, 28USC. §1253 t:

Pra No.

Interstate Commerce Act, 49 U.S.C. §§5(2)(a),

’ (b) and (c) ; , pomntencerceen +5, 12a-13s

Interstate Commerée Act, _ ee

49US.C. §5(11) ____2, 20, 22, 25, 34, 39, 13a-14a s

Interstate Commerce Act, 49'U.S.C. §5(13) 116, 21, 14a

Interstate Commerce Act, 49 U.S.C. §20a(2) tes ,

Interstate Commerce Commission Orders; ‘int

Enforcement and Review, 28 U. S.C. §§232 1-2325___. 16

Motor Carriers Act of 1935, 49.U.S.C. §301 __: ee

National Labor Relations Act, 29 U.S.C. §157 15a

Nationat Labor Relations Act, 29 U.S.C. ey

§§158(a)(1) and (5) 25, 15a-16a

, ‘National Labor Relations Act, 29U.S.C. et fae te cen

§§158(d)-and (f) ___s 26,28, 37, 1Sa-l6a *

- National Labor Relations Act, 29 U.S.C. §160(e) 47

National Labor Relations Act, 29 USS. c §160(f) ude oe

‘Transportation Act of [February 28] 1920, eS

49 U.S.C. §5(2)(b) ———__ See *

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e IN THE

‘Supreme Court .of the United States

OCTOBER TERM, 1966

| NO.

OVERNITE TRANSPORTATION COMPANY, ;

‘ Petitioner.

NATIONAL LABOR RELATIONS, BOARD,

and Respondent

CHAUFFEURS, TEAMSTERS AN D HELPERS

'.. LOCAL NO. 171, INTERNATIONAL BROTHER-

HOOD OF TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN AND HELPERS OF AMERICA,

“ Intervenor

PETITION FOR A WRIT OF CERTIORARI TO THE |

UNITED ‘STATES COURT OF APPEALS FOR THE

‘FOURTH CIRCUIT

To the Honorable, the Chie f Justice and the Associate Justices

0 f the Supreme Court o f the United States:

The petitioner prays this Court for a Writ of Cértiorari

directed to the United States Court of Appeals for the Fourth

Circuit, to the end that this Court may review the decision

which the said Court of Appeals has rendered in the above-

entitled case. And the petitioner respectfully shows to this .

Court: . * | ; , :

THE OPINIONS OF THE COURT AND

ADMINISTRATIVE AGENCY BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit in this case is reported at 372 F. 2d 765 (4

FR OTN, SMOTHER if

Cir.), and is printed in the appendix to this Petition. This

case came to that Court upon petition for review of an order -

of the National Labor Relations Board. The decision of the

Boatd, reported as 157 NLRB No. 103 (1966), is printed

in the record which has been filed with this Court.

The decision of the Interstate Commerce Commission in

a related case entitled, Overnite Transportation Co. — Pur-

chase — Rutherford Freight Lines, Inc., is reported at 97

MCC 568, and the pertinent parts thereof are also printed

in the record which has been filed with this Court.

JURISDICTION OF THIS COURT

The judgment of the United States Court.of Appeals for

the Fourth Circuit, which the petitioner now asks this Court

to. review, is dated February 6, 1967, and was entered by

_ that Court on that date. An order denying petition for re-

hearing en banc was issued and entered by that’ Court on

April 4, 1967. |

; Jurisdiction to review the decision of the Court of Ap

_peals, through the procedure of certiorari, is conferred upon

this Court by the provisions of 28 U.S.C. §1254,

_ QUESTIONS PRESENTED FOR REVIEW

m % When, i in the exercise of the exclusive and plenary juris-

diction conferred on it by Section 5(11) of the Interstate

Commerce Act, the Interstate Commerce Commission has .

imposed upon a common carrier requirements for protection

of employees who might be affected by its proposed purchase

of assets of another carrier, does the National Labor Rela-

tions Board have the authority, in a subsequent collateral ~

proceeding, to add to, alter, or nullify the Commission’s

order and to punish such carrier as if it had wilfully violated

: 3

the law in 1 exercising the authority conferred -“ it by the |

Commission? |

2. When a labor organization. his elected to exercise its

right to require that interim conditions for protection, of

common carrier employees, who might be affected by a pro-'

posed transfer of common carrier assets, be established in

litigation before the Interstate Commerce Commission and

the Commission has established such conditions, is. the Na-

tional Labor Relations Board authorized later to decree that

the purchaser violated the law when it acted within the Com-

mission’s order and may the Board instead require the pur:

' chaser to undertake the establishment of other and different |

protective’ conditions through anticipatory pre-purchase bar-

: _ gaining with the same labor organization?

3. After it was shown to the Court of Appeals that the peti-

tioner could not be required to engage in pre-purchase collec-

tive bargaining, and Board counsel had. conceded this to be

true, did the Court exceed its authority by sustaining the

Board’s order upon the Court’s own view of the legal effect

. of the petitioner’ S post-purchase conduct although the Board

‘found no illegality with ret to such ese en ;

conduct?

4. After a “te fide ‘impasse was reached in collective

bargaining following the purchase of common carrier assets,

did the National Labor Relations Board have the authority

to require the purchaser to-yield retroactively and completely

_ to the Union’s largest demand as a remedy for an alleged

pre-purchase refusal to bargain, even though there is no claim

that the purchaser has failed to bargain in good faith since

that time and the Board has made no finding that such an

unprecedented remedy i is necessary to effectuate the pat

of the National — Relations Act? ikl

‘STATUTES INVOLVED

. The case involves. the following statutes which, eit

of their length, have been reproduced as to their perenne :

_textin the appendix to this Petition:

Interstate Commerce Act, 49 v. Ft $85( 2) (a), (b)

and (c) _

"Interstate Commerce Act, 49 U.S.C. §5(11) :

Interstate Commerce Act, 49 U.S.C. §5( 13)

Interstate Commerce Act, 49 US.C2820a(2) ARS

National Labor Relations Act, 29 U.S.C. §157 :

National Labor Relations Act, 29 U.S.C. §§158(a) (1)

and (5)

National Labor Relations Act, 29 U. S. nd gg1se(a)_

and {f)

STATEMENT OF THE CASE |

On February 8, 1963, Rutherford Freight Lines, Inc.,’

being in severe financial distress, contracted to sell its oper-

ating authority and certain of its assets to the petitioner,

Overnite. Transportation Company’ (G. C. 3, 204; 199-200; »

U. 1, 208-223). Because both companies are regulated ©

| common carriers, consummation of the contract of sale was

necessarily made contingent upon the parties obtaining ap-

_ proval of the transaction by the Interstate Commerce Com-

mission as is required under Section 5(2) of the Interstate

~ 1Hereinafter referred to as s “Rutherford.”

Hereinafter referred to as “Overnite” or “petitioner.” Ps :

Unless otherwise indicated, all page references are to the printed

joint appendix filed in the Court of Appeals, which appendix is now

included in the record filed with this Court. References to exhibits are

by exhibit number and are designated “Co.” for exhibits which Overnite.

introduced as respondent in the Board proceedings; “G. C.” for Gen-

eral Counsel or Board exhibits; and “U.” for Union exhibits:

a eA ie AE? %

Commerce Act, 49 U.S.C. §5(2), and the Motor Carriers Act

of 1935, 49 U.S.C. §301 et.seq. The sales contract contained

a provision releasing Overnite from any obligation to con-

-summate in case Commission appfoval should contain con- .

ditions or requirements unacceptable to. Overnite-;(U. 1,

220).

"When aE ra approval’ of rp SLs yaa

‘tion_were-submitted to the Commission, a-general protest

was filed by the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America in its

own behalf and in behalf of its Locals.

Although the Union sought disapproval of the entire trans-

action, litigation before the Commission centered upon its.

alternative insistence that the Commission should either

require Overnite “to assume Rutherford’s obligations under

Rutherford’s collective bargaining agreement... .” with the

Union, or compel Overnite to provide “protection of seniority

rights and establishment of wages” and terms of employ-

ment for Rutherford employees “equal to those -prevailing

in the area” — the latter meaning the same wages, hours and

conditions of employment provided for in the Union’s con-

tracts (Co. 33-B, 190-191; Co. 33-D, 193). An issue was

- joined upon Overnite’s refusal to accede to these demands °

-of the Union, it being Overnite’s position that acquiescence

would lead it along Rutherford’s. trail to financial disaster .

(236-237). |

Consequently, at a hearing bitore an examiner of the

Commission, held in June 1963, Overnite was required to

make detailed judicial “representations” or counterproposals

6 :

* to the Couitnlasiia for protection of siiliiicinees to be affected

by the proposed transaction. These counterproposals includ-—\ ~~

ed the estimated. number of Rutherford employees who ;

would be offered jobs by: Overnite and precisely | what Over- /

‘. nite would provide by way of wages, paid vacations, paid |

holidays, group insurance, moving allowances, and retire-

ment, educational, recreational and seniority benefits/as well

as other matters bearing-on working conditions generally

(Co. 33, 158-162, 171; Co. 33-A, 180; Co. 33-E, 197-198;

U. 2, 223-236).

After considering all of the ‘és and: contentions -of

the parties, on October 22, 1963, the Commission’s-examiner

' issued his report rejecting the Union’s- .demands and con-

tentions and approving the proposed. transaction upon the -

condition that the employees would be. accorded the protec-

tions Overnite had proposed, with the additional require-

ment that three months’ severance pay should be given by

- Overnite to any employees displaced by the transaction.

The Union appealed to the full Commission, asserting

that under the examiner’s recommendation “Overnite has

not and will not afford adequate protection to those Ruther-

ford employees who would be adversely affected by the

_ acquisition . . .” (Co. 33-D, 192). -

On July 31, 1964, the Commission affirmed its examiner Ss :

determination, noting particularly that “in view of vendor’s

declining traffic and revenues and the resulting trend toward

substantial deficits which, if continued, will result only in

its demise as a carrier, we cannot determine how denial of

- the instant application could be considered to be consistent

_ with the overall public interest, including that of vendor’s

. employees” (Co. 33-E, 199-200). The parties were given 180

ome Cape ini cuioemniats toe tremsaction: | 3

a ake

—_—

The. Union later instituted. suit bgaiint the Cini

before a special three-judge court in the District of Colum-

bia, seeking an injunction against the Commission’s order,

The suit was dismissed by that Court on April 20, 1966, —

International Brotherhood of Teamsters, Chauffeurs, Ware-

' housemen and Helpers of America and Local Union. 549 v.

United States of. America and Interstate Commerce Com-

- mission, 253 F. Supp. 481 (D. D.C. 1966), and such. dis-

_ missal. was affirmed by this Court, séb. nom. Amalgamated

) Transit Union, AFL-CIO v. United States, 3 385 USS. 38, 87 S.

Ct. 240, 17 L. ed. 2d 35 (1966).

In the meantime, the Union’s chabiaoes with Rutherford | |

had expired and bargaining between Rutherford and the -

Union had not resulted in any new agreement (72- 73, 76,

104-108, 124-125, 130-132; | Co. 6-18, 126-141),

After entry of the Commission’s decision, a controversy

‘developed between Overnite and Rutherford which rendered

consummation doubtful and precluded any advance planning

as to a date for consummation, if indeed, it was ever to be

accomplished (108-110). On October 20, 1964, the Union

‘notified Overnite that Rutherford’s employees at Roanoke,

. Pulaski and Richmond, Virginia and Kernersville, North

Carolina “have expressed an interest in.working for Over-

nite when and if you consummate your contract with Ruther-

ford in accordance with the ICC decision” (144). At the —

same time, the Union asked that it be advised as to-the

exact date of intended consummation, but made no request

‘for recognition or bargaining (144). That date did not be-

come fixed until November 19, 1964, when the dispute

between Overnite and Rutherford was resolved in a meeting

‘at Bristol, Virginia (108-110). Simultaneously with the

‘resolution of this controversy, Overnite notified the Union

of its intention to consummate the transaction as of that

date (Co. 23, 147).

. By letter dated the following day, the Union incjiced

“Whether Overnite intends to recognize Teamsters Local

' Unions” as bargaining representatives of employees “at any

- of its locations” (147-148). The Company promptly’ replied

that “We are willing to recognize and bargain for contracts

- with the appropriate unions in separate and appropriate

‘units at Roanoke and Pulaski” (149-150) |

-After several months of bargaining had not resulted in

hisiisuatiad: the Union filed charges against Overnite, alleging -

- violation of Section 8(a)(5) of the National Relations Act.

The Board’s investigation of these charges revealed no evi-

dence of bad faith or unlawful conduct on the part of Over-

nite, either as to timeliness of its recognition of the Union

or in its contract negotiations following recognition (39-40).

The Board, nevertheless, issued a Complaint \against Over-

nite, alleging that it had unlawfully made “changes in terms

and conditions of employment” of ex-Rutherford employees

when it hired them according to the proposals made to, and

accepted: by, the Interstate ‘Commerce Commission (10).

At the hearing before the Board, Overnite sought to intro-

duce into evidence pertinent parts of the proceedings and

orders of the Interstate Commerce Commission (52-54, 157-

202). This evidence was summarily rejected by the trial ex-

aminer “as irrelevant and not relating to the issue in this case”

1The Union’s letter, dated on Friday, was delivered to the Company _

at a time when the appropriate company official was unavailable due to

absence from his office and duties in connection with consummation of

the transaction. Ho replied on the fitth working day following receipt

ee 25-26, 149-150).

| : we

(11). Having thus removed from consideration all that had

: transpired before the Commission, the trial examiner ruled

that Rutherford employees were entitled to protection against .

any possible adverse effects growing out of changes in their

employer’s business, that no such protection was available -

to them except through collective bargaining, and that Over-

nite had violated the law when it failed to provide this pro-"

tection before it consummated the purchase transaction ac-

cording to the Commission’s authorization. ;

As a remedy, -the trial examiner directed that Overni

_ Shall be required to install, retroactively to the date of its”

consummation of the purchase, the identical wages, benefits

a and terms and conditions of employment which the Union

oie unsuccessfully sought to have imposed upon the transaction

| by the Interstate Commerce Commission. In ordering this

_ remedy, the trial examiner gave no consideration to the con-

ceded fact that Overnite had bargained in complete good

faith with\the Union throughout the intervening period. On

appeal, the Board affirmed the trial examiner’s decision (32-

34). ; apie

The Court of Appeals gained jurisdiction over the pro-—

ceeding by .virtue of a petition for review of the Board’s

order filed by Overnite pursuant to the provisions of Section

10(f) .of the National Labor Relations Act. 29 U.S.C.

. $160(f). A panel of the Court reviewed the order. Upon the

- jurisdictional issue, the panel ruled that, whatever the Inter-

state Commerce Commission may do, the Labor Board has

full authority to impose further conditions upon carriers

(Appendix, P. 9a). <

\ TS 3 ‘The appendix to this petition.

tet ater ty Ot o> SS — Smear em nT es EE ne Oe G8

: ts -

Without expressly ruling upon the question of whether the

‘Board has the authority to require pre-purchase bargaining 7

by a common carrier, the Court sustained the Board on that

issue, apparently upon the theory that, even in absence of

a duty to engage in-pre-purchase collective bargaining, Over-

nite was not authorized to hire ex-Rutherford employees at

wages, hours and conditions of employment which were dif-

: ferent from those. which had been in Serer ‘at ‘Rutherford .

(Appendix, p. 6a).

- In passing. upon the Board’s remedy, the ee divided. ©

The majority sustained the remedy upon the theory that it

_ was within the discretionary power of the Board and, there-

_ fore, should not be disturbed by the Court. In dissenting,

Judge Bryan was of the opinion that a remand to the Board ..

for fixing of a new remedy is compelled by the want of sub-

‘stantial evidence to support the Board’s order requiring

restoration of Rutherford employee benefits regardless of

Overnite’s good-faith bargaining (Appendix, p. 12a).

' REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

; 1. ‘Both. the Interstate Commerce Commission | and. the

‘ National Labor Relations Board have exercised jurisdiction

over the subject matter in controversy and have issued con-

flicting orders with respect to it. The Court of Appeals has —

granted enforcement of the Board order, even ‘though it col-

_ laterally nullifies the prior order of the Commission, which |

had beeit affirmed both by a three-judge court and by this

2. Tin donision of the Court of, Appeals in-thie case ls in |

direct and pointed conflict with a decision of another Court

of Appeals upon the important jurisdictional niches here

; in issue. ,

3. In its order, the National Labor Relations Board

assumed the power to require collective bargaining by a com-

mon carrier before an‘ employer-employee relationship was —

created, even though Congress has not authorized such bar- . _

gaining outside the construction industry. The Board has.

thereby decided an important question of Federal law which

has not, been, but should be, settled by this Court. :

4. The decision of the Court of Appeals is in direct and

pointed conflict with a decision of another Court of Appeals

upon the question of whether the National Labor Relations

' Board has the authority to require an employer to install

‘employee wages and benefits to which the dreedel has

never agreed. |

., 5. The Court of haste has decided Federal questions

in ways which sharply conflict with applicable decisions of _

this Court. 7 >

6. The order of the National Labor Relations Board and

" the decrée of the Court of Appeals enforcing it raise impor-

tant questions of Federal law which, if not settled by this

Court, will gravely affect rearrangements of common carrier

enterprises, and will’ proliferate into'the future, uncertainty,

litigation, and conflicts of decisions among the Federal courts.

ARGUMENT AMPLIFYING REASONS WwHy | \

/ A WRIT OF CERTIORARI SHOULD BE GRANTED . \

I. Nullification Or Modification Of The Order Of The

_ Interstate Commerce Commission By The National Labor

. Relations Board Is Specifically Prohibited By Statute.

Tie: sling of: tha: National Labor: Rdlotiole Boapd te-thla

case is that the prerogative of common carriers to rearrange

their businesses. must be balanced by some protection to their

| employees from a sudden change in the employment rela-

tionship and that, in absence of pre-hire collective bargaining,

no such protection éxists. Upon the basis of these assertions,

and upon them alone, the Board retroactively applied.a newly

improvise | doctrine of compulsory pre-hire bargaining to

“protect” the employees of the seller in this case, not because

any existing statutory authority requires such .pre-hire bar-

gaining, but only because the Board says that such protection

“ought to be given.” yee

There can be no doubt that, by means of these strange and.

novel ‘pronouncements, the Board has boldly entered into a

field which has been resetved by Congress for the Interstate

Commerce Commission for nearly half a century. It is equally

__as Clear that the Labor Board’s order, and the Court decree

enforcing it, contravene a statute which was enacted by Con-

gress for the very purpose of precluding the issuance of orders

or decrees having. the effect that this order and this decree

do have—that is, orders and decrees which interfere with the

Commission’s exercise of. its exclusive and plenary jurisdic-

tion. And further, the Board’s order and the Court’s decree

directly conflict with the prior judgment of another court,

‘which judgment has been specifically affirmed by this Court.

_ The temporary fixing of wages, hours and conditions of

employment by public authority in the transportation indus-

try, pending the time when such matters can feasibly and

appropriately be worked out through collective bargaining,

reaches back into history for more than fifty years. In 1916,

Congress found it necessary to intervene directly in collective _

bargaining by establishing hours of work and wages to be

- paid in the rail industry to avoid a threatened interruption of

LABIA OP ANIL LIT IE Ep Pah ee BE > p

13°

public ssid: An attack on that action before ‘this

Court raised the following i issue: ee

“Did Congress have power, under the circumstances.

stated, that is, in dealing with the dispute between the ~

employers and employees as-to wages, to provide a perma-

nent eight-hour standard and to create by legislative action

a standard of wages to be operative upon the employers

and employees for such reasonable time as it deemed neces-

sary to afford an opportunity for the meeting of the minds

of employers and employees on the subject of wages?” .

( emphadis supplied ) |

Wilson v. New, 243 US. 332, 346,

37S. Ct. 298, 301, 61 L. ed. 755,

772,773 (1917) |

In sustaining that action of Congress, the Court first took

note of the legal’ obligation of carriers to provide continuous —

service, and of the. regulation of labor relations: which Con-

“gress enacted to enable them to do so. The Court then made-

these observations: ° ‘ ‘

. [W]hat benefits would flow to society by recogniz-

ing ae right, because of the public interest, to regulate the

relation of employer and employee ... . and to give the

latter peculiar and special rights safeguarding their per-

sons, . . . if there was no power to remedy a situation

created by a dispute. between employers and employees |

as to rate of wages, which, if not remedied, would leave the |

public helpless, the whole people ruined, and all the homes

of the land-submitted to a danger of the most serious char-

acter? And finally, to what derision would it not reduce the

proposition that government had power to enforce the duty

of [continuous] operation if that power did not extend to’

‘doing that which was essential to prevent, operation from ~

‘-—. being completely stopped by filling the interregnum cre-

. ated by an absence of a conventional standard of wages,

because of a dispute on that subject between the employers

and employees, by a legislative standard binding on.em-

ployers and employees for such a time as might be deemed

by the legislature reasonably adequate to enable normal —

conditions to come about as the result of agreements as to

: wages between the parties?” (emphasis supplied) _

; - Wilson v. New, 243 US. 332, 351,

3758. Ct. 298, 393, 61 L. ed.

755-775 (1917)

Four years later Congress again exercised the same author-

_ity to provide means other than collective bargaining for the

temporary setting of wages, hours and conditions of employ- |

ment in the’ transportation industry in order to avoid crip- _ °

pling interruptions. from labor disputes arising directly out .

of rearrangements of common carrier businesses. After it re-

asserted the existing requirement that all purchases of com-

- mon carrier properties were subject to approval and author- .

ization of the Interstate Commerce Commission, Congress

authorized the Commission to attach to its approval “such

terms and conditions and such modifications as it shall find

to be just and reasonable” and “consistent with the public

interest.” Transportation Act of February 28, 1920, 49 U.S.C. Oni 8

} §5(2) (b). Under this authority, the Commission established

the practice of specifying terms and conditions for protection

of employees who might be adversely affected by purchase —

and merger transactions. The exercise of that authority was

challenged before this Court in United States v. Lowden, 308

U. S.:225, 60 S. Ct. 248, 84 L. ed. 208 perer?. In eoneaeins

the —_— ms Court stated:

| .-[T] he issue is narrowed toa single question whether

we can say, as matter of law, that the granting or with-

; holding of. e protection afforded to the employees by the

prescribed conditions can have no influence or effect upon

the maintenance of an adequate and efficient transporta-

tion system which the statute > Fecognizes as a matter of

public concern.

- “One must disregard the entire history of railroad labor

relations in the United States to be able to say that the

just. and reasonable treatment of railroad employees in

mitigation of the hardship imposed on them in carrying -

out the national policy of railway. consolidation has| no

bearing on the successful prosecution of that policy and. no

relationship to the maintenance of an adequate and ef- .

ficient transportation system. |

“The now extensive history of legislation regulating the

relations of railroad employees and employers plainly

evidences the awareness of Congress that just and reason-

able treatment of railroad employees is not only an-es-.

sential aid to the maintenance of a service uninterrupted

by labor disputes, but that it promotes efficiency, which

suffers through. loss of employee morale when the demands

of justice are ignored.

. [W]e do not doubt that Congress, by its choice

of. the broad language of §5(4)(b) intended’ at least to

‘permit the Commission, in authorizing railroad consolida-

tions and. leases, to impose upon carriers conditjons re-

lated, as these are, to the public policy of the Trans- _

portation Act to facilitate railroad consolidation, and to

’ promote the adequacy and efficiency of the railroad trans-

partaies system. Prt ai

United States v. Lowden, 308 US.

225, 231, 234, 235-236, 238, 60S. .

Ct. 248, 251, 253, 254, 255, 84 L.

ed. 208, 214, 215, 216, 218 (1939)

_ All of the’ foregoing is, of course, applicable to the present

case since, in 1940, Congress extended the Interstate Com-

merce Act to bring motor carriers within the provisions of .

Section 5 of that Act. See 49 ) USC. §5(13).

In order to protect anyone aggrieved by an order of the

’ Commission, Congress provided a special procedure for ju-

- dicial review, which includes a direct appeal to this Court in

lieu of the usual petition for certiorari, 28 U.S.C. §§2321-

2325, 1253. And, having provided for direct appeal as a

means for redress of any wrongs which might be committed ©

by the Commission, Congress directed — by the strongest |

_ language conceivable — that there should not be any other

attack upon, or conflict with, an order of the Commission

in any form, shape or fashion. : ae

“The authority conferred by this section shall be ex- .

clusive and plenary, and any carrier or corporation partici-

pating jin or resulting from any transaction approved by .

the Commission . . . shall have full: power . . . to carry

such transaction into effect ... [and] shall be and they are

relieved from. the. operation of . . . all other restraints,

limitations, and prohibitions of law, Federal, State, or

municipal, insofar as may be necessary to enable them to

_ carry into effect the transaction so approved... .” (em- °

phasis supplied).

' - 49U.S.C. §5(11)

: ~~ ne Se

Accordingly, when Overnite proposed to purchase assets —

from Rutherford, it was not free to decide, either by itself

or in mutual agreement with any labor organization or. other |

entity, what arrangements it would make for the protection

of Rutherford employees pending consummation of the -

transaction if the Commission approved it. Overnite was

. bound by law to submit to the will of the Commission with

respect to all these matters. '

Recognizing this fact; Overnite reserved the contract right

to refuse to consummate the purchase if ‘unacceptable con-

ditions for employee protection were attached to the Com-

mission’s approval (220, 237). And throughout every stage

of the litigation before the Commission, Overnite met each

issue on its merits without ever raising a contention that the

Commission had anything less than complete jurisdiction .

over all of these matters. The Union unreservedly espoused

a total commitment to the:proposition that all matters relat-

ing to pre-employment protection for employees were to be

resolved by the Commission and not through collective bar-

_ gaining. The Union demanded that the Commission should

require “Overnite to lay out specific . . . protections for the

Rutherford employees’ (169, 192-193) (emphasis supplied).

And when Overnite did lay out specific and detailed protec-

tions as to all phases of the employment relationship, the

Union used every available means to require that these pro-

tections be increased by legal ieacesin without ever indicat-

1As only one example, Overnite’s counsel stated to the Commission

that; “We have undertaken to bring before you the evidence regarding

the effect of the proposed transaction upon the employees of Ruther-

ford, and that is properly before you and is one of the things with which

you are concerned” (166) ren supplied). .

. ing, expressly or by inference, that Overnite should engage

in extra-judicial bargaining with the Union before consum-

mation of the purchase transaction. —

The extensive litigation: which the Union initiated and,

prosecuted ‘before the Commission, and before the courts

on appeal from the Commission’s order, over the question

‘of whether Overnite would be. bound to pay or maintain

Rutherford wages and terms and conditions of employment

for ex-Rutherford employees continued for three and one-

half years. en

After the Commission ‘ote i in great detail all. that

was before it, and the powers which it possessed, it issued .

an order holding clearly and unequivocally that Overnite

' should not be required to commit itself to the expenses for

additional employee protections urged by the Union, and

it affirmatively approved the employee protections which

Overnite had acre with the one addition cianenmys

noted.” =

After that, over three and one-half months passed without

a word from the Union from which anyone could glean a

contention either that the.Commission had exceeded its

jurisdictional authority or that Overnite. was obligated to -

bargain with the Union prior to consummating the transac-

tion. All of the Union’s actions pointed directly to a contrary:

conclusion. Throughout this period, the, Union was busily

* 1By incorporation of Overnite’s proposals, the Commission’s order

_ included directives with respect to the number of employees Overnite

would be expected to hire, the classifications into which they would be

hired, the locations, including provisions for moving expenses of trans-

ferred employees, wages; hours of work, vacations, holidays, pensions,

insurance, educational and recreational benefits, working conditions,

seniority integration and severance pay, to which it added a require-

ment for limited compulsory arbitration (197-198, 201-202).

on:

engaged in bargaining with Rutherford for a new contract

to cover the employees in question, this being an obvious

concession that Rutherford and not Overnite was their em-

ployer throughout this period (104-108, 121-141).

Also during this interval, the Union merely notified Over- —

nite that Rutherford employees had “expressed an interest

in working for Overnite when and if you consummate your

-- contract with Rutherférd in accordance with the ICC de-

. cision” (emphasis supplied), and requested advice as to the

_ date on which it was intended that the transaction would -

be closed (Co. 21, 144). Overnite responded courteously to

this request (Co. 22, 145-146), and immediately notified the

Union of the consummation date when it became known (Co.

23,147). | ne

After Overnite accepted the conditions which had been

imposed upon the transaction by the Commission, and relin-

_ quished its contract reservation of right to reject the trans-

action in‘its entirety, the Union utilized the statutory appeal

procedure by petitioning a special three-judge court for an

injunction against the Commission and its. order. And again

there was not one word from the Union, either directly or by

inference, to the effect that there was any limitation what-

‘ever on the Commission’s authority in this matter, it being .

the Union’s ardently asserted claim that the Commission -

_-had-not exercised its authority to protect employees to the

fullest extent which was required by law.

‘’ The reviewing Court framed the issue raised by the Union’s

- petition as follows: “Is the protection granted the motor

_ carrier employees in the purchase transaction before the

Court fair and equitable both to the employees and to the

involved carrier?” After noting with approval the.Commis-

sion’s findings as to the precarious financial condition of the

business which Overnite proposed to purchase, the Court ;

answered the issue in the affirmative, International Brother-

hood of Teamsters, Chauffeurs, Warehousemen and Helpers

of America v. United States, 253 F. Supp. 481 (D.D.C. °

1966). The Union appealed directly to this Court and, upon

* motions of the Commission and Overnite, this Court affirfhed

that decision, 385 U. S. 38, 87 S. Ct. 240, 17 L. ed. 2d '

(1966). |

ae: upon the plain wording of Section 5(11) of the ‘Inter-

state Commerce Act, quoted above, tliere ever could have °

been any doubt that the Commissian’s order and the Court

decrees which affirmed it were final and binding, such doubt

should be erased completely by the following precedents,

and there are no other precedents, dealing with this matter:

_ “While the three Supreme Court cases just discussed: do

not deal directly with the specific problem now confronting .

us (namely, whether the provisions relating to merger and

aa providing for compensation for affected employees take

__ precedence over the provisions of the Railway Labor Act) |

in the situation here presented we believe that the cases

afford very substantial support’ for the view that Congress

‘intended the ICE to have jurisdiction to prescribe the

‘method for determining the: solution of labor. problems

. » arising directly out of approved mergers. Thus, like the

trial court, we come to the conclusion that to hold other-

wise would be to disregard the plain language of §5(11)

conferring exclusive and plenary jurisdiction upon the ICC

to approve mergers and relieving the carrier —_ all other

restraints of federal law.

: “Unquestionably, the Railway Labor Act is a federal

_ :law. We find no express or implied ‘exception of the pro-

visions of the Railway Labor Act from the operative pro-

visions of §5(11) (emphasis supplied). .

“The Commission did actually approve the proposed

merger and the included agreement for the protection of —

railroad employees as it was authorized to do. Such,

approval, in absence of language manifesting a contrary

intent, carried with it any exemption from the restraints of.-

other laws as contemplated by §5(11) to the extent neces- .

sary to Pane out the merger.”.

Brotherhood of ‘Siseanities

Engineers v. Chicago and North

‘ . Western Ry. Co., 314 F. 2d 424,

‘431-432 (8 Cir. 1963) cert: den. °

~ 375.U.S. 819, 84S, Ct.55, 11 L.ed.

" . 53 (1963)

This precedent is as persuasive and bitdindas it would

have, been if the case had involved motor carriers instead of

rail carriers. The Commission supervises consolidations and —

mergers of both rail and motor carriers under the same pro- .

vision of the Iriterstate Commerce Act. See 49 U.S. ren §5(13);

McLean Trucking Co. v. United States, 321 U. S. 67, 64 S.

"Ct. 370, 88 L. ed. 544 (1944).

_ The same principle has been established nea transporta- eo

‘ tion cases where the Civil Aeronautics Board performs the.

function which is exercised here by the Interstate Commerce

Commission and where the Railway Labor Act controls such -

labor matters as are administered by the National Labor

~ Relations Board in other cases. See Oling v. Air Line Pilots

Ass’n., 346 F.2d 270 (7 Cir. 1965); Hyland v. United Air

Lines, Inc., 254 F. Supp. 367 (N:D._Ill. 1966). The relief

/ ect

from other laws given to rail and motor carriers by Section

5(11 ) of the Interstate Commerce Act is also given to airlines,

in implementing approved metgers, by Section 414 of the Avi-

ation Act. 49 U.S.C. enti In the ee case, the Court

aptly stated:

“This important area of the total complex of merger

considerations canriot be subject to independent scrutiny

‘and interference by thé courts pursuant to a separate statu-

- tory scheme.The parties affected by the CAB merger order

cannot be required to answer in different forums at differ-

ent times on different charges for actions taken under the

CAB ‘merger umbrella” (emphasis supplied).

Hyland v. United Air Lines,

supra, at p.372 ~

| There are simply no means whereby the Labor Board’s

" order can be sustained unless the action of Congress in enact-

' . ing Section 5 of the Interstate Commerce Act is to be treated

as an idle gestute and the extensive litigation of the parties

pursuant to that Act is to be regarded an exercise in futility.

That is precisely the treatment accorded them by the Board.

It is doubtful that words could be found which would more

vividly expose the invalidity of the Board’s oydler than those-

which were used by the Board in its own rationalization of

its order. Thus, in the face of the Congressional prohibition

against unsupervised rearrangements of common carrier en-

terprises and the legion of Interstate Commerce Commission —

cases protecting employees pursuant to the Congressional —

authority noted above, the Board declared that, “Under

these circumstances the objectives ‘of national labor policy

require that ‘the rightful prerogative of owners independently

_ to rearrange their businesses . . . be balanced by some pro-

' tection to the employees from a sudden change in the em-

ployment relationship’ ” (22). This was a fragmentary quo-

tation from John Wiley & Sons, Inc. v. Livingston, 376 U.S.

543, 549, 84 S. Ct. 909, 914, 11 L. ed. 2d 898, 904 (1964),

where this Court dealt .with the question of whether a con-

tractual requirement for arbitration was binding on a suc-

cessor corporation. The Board completely ignored the obvious

fact that the Wiley case did not involve a regulated common

carrier or an Interstate Commerce Commission proceeding.

_ Moreover, the Board failed to heed the Court’s admonition |

_ that, “This case cannot readily be assimilated to: the cate-

gory of those” cases such as this “in which there is no con-

tract whatever. .. .” John Wiley & Sons, Inc. v. Livingston,

376 US. 543, $50, 84 S. Ct. 909, 915, 11 L, ed. 2d 898, 905

(1964).

Next, in total contradiction of the dis enka had

erroneously removed from the case as being irrelevant, the

Board “found” that, “The only protective balancing that is

available in the present situation is that the employees be

given the protection and assistance of collective bargaining

before the change in corporate ownership is permitted to alter

their economic relationship with their employer” (22) (em- —

phasis supplied). If there had been any ,ational basis on

‘which to support the Board’s order, surely the Board would

not have found it necessary to resort to “fact finding” that

ignores the “protective balancing” whieh has been accorded

in such cases by Congress and the Commission for more than

.45_ years. | x ;

In sole reliance upon these indefensible propositions, the

” Board ordered Overnite to “restore the wages, hours and

working conditions which prevailed at these terminals on |

240

November 19, 1964, just before [Overnite] assumed control .

of them...” (24-25),-and to “make employees whole for any

economic loss wegen suffered as a result of [Overnite’s] unlaw-

ful action ....” (25)—all of which is precisely what the Com-

mission, with court approval, ordered that Overnite should

i not berequiredtodo! |

.. The panel decision of the Court a Appeals is equally at

ods. with the provisions of the Interstate Commerce Act.

While ‘the Court of Appeals inferentially acknowledged that —

the Commission did have some. authority to protect em-

. ployees in such cases, its decision cannot be squared with the

Congressional mandatewthat the Commission’s jurisdiction

to establish such protections’ is.“exclusive and plenary” and

that carriers implementing Commission orders shall be for--

ever immune against ary-and all “restraints” of government.

' “There is no need to discuss at length Overnite’s reliance —

upon the Interstate Commerce Commission proceedings to

tte alas its conduct.

“Overnite contends that the power of the ICC to con-

dition approval of the sale and transfer of assets upon the

vendee’s agreeing to fair and equitable protection of em-

ployees, and its partial exercise of that power, precludes

the Labor Board from granting further protection under |

the National Labor Relations Act. This contention is with-

out merit. ...Whatever the ICC may do, the Labor Board

- retains full suthority to provide further protection of em- :

ployees in enforcement of the National caber ‘Relations

Act” (Appendix, p. 9a) (emphasis supplied).

. This decision cannot be reconciled with the decision of the

Court of Appeals for the Eighth Circuit in Brotherhood of -.

25 r

Locomotive Engineers v. Chicago and North Western Ry.

Co., 314 F. 2d 424 (8 Cir. 1963) cert. den. 375 U.S. 819, 84

S. Ct.,55, 11 L. ed. 2d 53 (1963).

"In addition to contradicting Section 5(11) ‘of the Inter-

state Commerce Act, the Court’s pronouncement fails to take.

into account the fact that the National Labor-Relations Act

contains the’ express provision that the duty to bargain col- .

lectively “does not compel” the employer “to agree” to any

particular “proposal or require” the employer to make any |

_ “concession” as to the terms on which the persons in an

_ appropriate bargaining unit shall continue in their employ-

ment, National Labor Relations Act, §8(a), 29 US.C.

§158(a). Since the Board has no authority to provide any

such “further protection of employees” in negotiations con-

cerning employees already hited, a fortiori it has no authority

to do so with respect to the terms of initial employment of

persons not yet hired. . :

Citizens must “naturally trust in their government and

ought to do so, and they ought not to suffer-for it.”” Menges

v. Dentler, 33 Pa. 495, 500 (1858) (emphasis supplied ).

Overnite has trusted completely in the Government here—

the Interstate Commerce Commission and thé Courts which

affirmed its order—and if the Board’s order is allowed to -

stand, Overnite will pay dearly for that trust. More impor-

tantly, if valid orders of the Interstate Commerce. Commis-

sion are to be so lightly regarded, how can-any of the nation’s __.

carriers depend upon such orders in making rearrangements —

of their businésses in the numerous cases which inevitably

will arise in the future? |

Il. The National Labor Relations Board Had No Authority

To Require The Petitioner To Engage In Anticipatory

Pre-purchase Collective Bargaining And The

‘Court Of Appeals Exceeded Its Authority

In Sustaining The Board’s Order On

Grounds Not Considered By The Board.

Collective bargaining by one not presently an “employer”

. within the meaning of the National Labor Relations Act, in

anticipation that he will later become such an employer, is |

a violation of the law.’ See, ¢.g., International Ladies’ Gar-

ment Workers’ Union v. National Labor Relations Board,

366 U.S. 731, 81 S. Ct. 1603, 6 L. ed. 2d 762 (1961); Local

Lodge No. 1424, International Association of Machinists v.

National Labor Relations Board, 362 U.S. 411, 80S. Ct. 822,

4 L. ed. 2d 832 (1960); National Labor Relations Board v.

Teamsters and Allied Workers, ‘Hawaii Local 996, 313 F.

2d 655 (9 Cir. 1963); Donnelly Garment Co. v. Internation-

al Ladies’ Garment Workers’ Union, 99 F. 2d 309 (8 Cir.

1938); Ellery Products Mfg. Co., 149 NLRB 1397 (1964); |

Crossett Co., 140 NLRB 667 (1963). :

‘That these cases are completely consistent with the will

and the understanding of the Congréss is proven beyond

doubt by the fact that Congiess, after careful deliberation,

chose to make such anticipatory bargaining not,required but

permissible ‘in the : “building and construction industry.” 29

USC. §1 58(f); See discussion under “Building and Construc- ,

tion Industry Amendment,” S Rep No. 187, 86th Cong, 1st

Sess (April 14, 1959). Obviously, if Congress had not con-

1Except i in the construction industry as to which Congress has made

an — in. the tule, National Labor ‘Relations Act, 29 U.S.C.

—

sidered such bargaining unlawful, there would have been no

reason for this special enactment permitting it in that industry.

The: Board’s scrutiny of Overnite’s conduct covered the

period before as well as after the purchase of Rutherford’s

assets: In its investigation, the Board found no violation by

_ Overnite of its duty to recognize and bargain in good faith

_ after it consummated the purchase (39-40). In other words,

as to that period of time, the Board found that Overnite’s

recognition of the Union was timely’ and that its subsequent

_ bargaining was in good faith (40). There was no allegation

in the complaint to the contrary and, with obvious approval,

_the trial examiner noted in his decision that “Respondent |

Overnite recognized the Union as the exclusive bargaining

agent of the employees at the Roanoke and: Pulaski termi-

nals on November 30, and since then has bargained with

the Union”- (16). As to that recognition and bargaining,

there is. not a word of critical comment in the Board’s

decision.” ie

The complaint which issued pursuant to the investigation

was limited to ‘the single charge that Overnite “failed to

notify, consult with, and bargain collectively with the Union”

concerning the terms upon which it would employ former

Rutherford employees at the moment of take-over — that

is, Overnite failed to bargain Defore consummation (5).

Throughout its decision, as to its dealings with the Union,

the Board emphasized again and again that the only mis- .

_ conduct found against Overnite was its failure to engage in

anticipatory pre-purchase bargaining. For example;’

1Jn the ordinary sense, where employers accord recognition ‘fen

tarily in response to requests that they do so.

2Except for the technical matter of not restoring conditions which

prevailed at Rutherford before the purchase (16).

8In each of the quotations, emphasis is supplied,

“ .. [Overnite] has refused to undue (sic) its unilateral: -

action and restore to employees the wages, hours and

ioe conditions they enjoyed just before takeover.

-. (16). —

“(The Unien ’s] sualililies ibis to deal with the

_ purchaser . ty were nullified by Overnite’s refusal to -

recognize and bargain with it until after Overnite uni-

laterally changed the very wages, hours, and working con-

ditions the Union was trying to protect.... (21).

“The only protective balancing that is available in the

present situation is that the employees be given the pro-

tection and assistance of collective bargaining before the

change in corporate ownership is permitted to alter their

economic relationship with their employer (22).

‘,.. [Overnite] deprived the employees of the protec-

_ tion the Act gives them when it [consummated the trans-

action] before it notified the Union of its intent and gave

the Union an opportunity to bargain concerning the pro-

posed changes. Under all the circumstances of this case

this unilateral action was a violation of Section 8(a)(5)

and (1) of the Act cast

. [B]y unilaterally changing the wages, hours and |

working conditions of employees [that is, by hiring them]

without notice to or prior bargaining with the Union con-

* cerning them, Respondent has violated and is violating.

Section 8(a)(5) and (1) of the Act (27).

mas - 99

. Respondent [shall] restore the wages, hours and

working conditions which prevailed at these terminals . : .

just before Respondent assumed control of them... .”

(24-25).

In making these novel pronouncements, the Board never

mentioned the precedents which condemn pre-hire bargain-

ing as an unfair labor practice or the manifested will of

Congress that such anticipatory bargaining, even on a vol-

untary basis, shall be strictly limited to the construction

industry. Nor did the Board come to the important question

- raised by the glaring absence of an employer-employee re-’

lationship between Overnite and Rutherford’s employees. -

The Board acknowledged that it was “. . . not until the

moment that the deal was closed [that the parties were]

absolutely certain that it would be consummated” (12),

that until the “. . . takeover on November 19, Rutherford

had [engaged in] continuing negotiatigns with the Union”

(15), and that “. . . the Union had tried to protect the em-

ployees’ waitin interests by its pretakeover bargain-

ing with the seller...” (21)..The Board did not attempt

- to explain how Overnite might lawfully be held to be the

“employer” of individuals who were then “employees” of

Rutherford. Nor did the Board deal with the question of how

Overnite might lawfully have intervened in the bargaining

as to these persons while Rutherford had, and was fully dis- .

charging, the obligation to bargain as to them.

The Board’s treatment of the related fact that the Union

had never requested pre-purchase bargaining with Overnite

is equally as peculiar. Thus, although the Interstate Com-

merce Commission proceedings were rejected as irrelevant, |

the trial examiner, with Board approval, considered this

rejected evidence as. proof “that Respondent .knew prior to

_ its unilateral action of November 19, 1964,-that the Union

_was claiming and requesting bargaining rights for the em-

ployees . . and Respondent chose to ignore that claim and

" request” (21). This, of course, is nothing less than a flat

contradiction of the undisputed evidence which: showed un-

equivocally that the Union chose to litigate with Overnite

over prospective wages, hours and conditions of employment

_ while it was engaged in bargaining with Rutherford over

' those subjects. It is also in direct conflict with the undisput- .

_ ed fact that, instead of ignoring. the Union at the moment

of take-over, Overnite took care to give written notice to

the Union immediately upon its ascertaining that the pro-

posed transaction would be consummated as’ authorized by

the Interstate Commerce Commission.

The Board’s peculiar selectivity i in dealing with the record

of the proceedings before the Interstate Commerce Com-

mission is. further demonstrated in its finding that, “The

record ‘contains no evidence of economic necessity as the

motivation behind Respondent Overnite’s refusal to main-

tain existing wage and economic levels at takeover. . . .”

(16). The truth of the matter, on the contrary, is that

‘economic necessity was the primary subject dealt with by

the Commission. Upon the basis of the volyminous evidence —

relating to that subject, the Commission found, in light of

Rutherford’s losses, that “. . . any labor-costs reduction per-

‘mitting vendor to continue in business presumably would

require the lowering of the existing wage scale or the elimi- —

nation of the jobs of some employees” (200) (emphasis

supplied). = : :

.. As might reasonably be expected, Overnite had no interest

in assuming and continuing the severe losses which were

being sustained by Rutherford.

_ When the case reached the Court on appeal, the Board

finally conceded that, “Jt is true, of course, that the Com--

pany was not required formally to recognize and deal with

the Union prior to consummation of the sale” (Board’s brief,

p. 13) (emphasis supplied). Since the Board’s entire case

against Overnite was made to-rest upon the single, and

admittedly unsupportable, proposition that Overnite was

required to recognize and deal with the Union prior to con-

summation of the sale, that concession obviously required a

denial of enforcement by the Court in spite of Board coun-

sel’s efforts to rationalize the decision on other grounds.

“We... hold that an administrative order cannot. be

upheld unless the grounds upon which the agency acted

in exercising its powers were those upon which its action

can be sustained.” Securities-and Exchange Commission

v. Chenery Corp., 318 U.S. 80, 95,

63 S. Ct. 454, 462, 87 L. ed. 626,

637 (1943)

_ *“(Courts] must judge the propriety of such action sole-

ly by the grounds invoked by the agency. If those grounds ©

are inadequate or improper, the court is powerless to af-

firm the administrative action by substituting what it ©

considers to be a more adequate or proper basis.” _

_._. Securities and'Exchange Commission

; ar v. Chenery Corp., 332 U.S. 194, 196,

67S. Ct. 1575, 1577, 91 L. ed. 1995,

1999 (1947) ° |

“The courts may not accept appellate counsel’s post hoc

rationalizations for agency action; Chenery requires that

an agency’s discretionary order be upheld, if at all, on the

same basis articulated in the order by the agency itself. . . .

_ “For the courts to substitute their or counsel’s discre-

tion for that of the Commission is incompatible with the

orderly functioning of the process of judicial review. This

is not to deprecate, but to vindicate, the administrative

process, for the purpose of the rule is to avoid ‘propel [ling]

the court into the domain which Congress has set aside

exclusively for the administrative agency’” (citations

omitted) . Burlington Truck Lines, Inc: v.

| United States, 371 U.S. 156, 168,

169, 83 S. Ct. 239, 246, 9 L: ed.

2d 207, 216 (1962)

With all due respect, it is submitted that the Court ye

Appeals failed to observe this well-settled principle and that,

by reason thereof, it erroneously sustained the order on the

basis of nebulous and inaccurate theories which Board coun- |

sel advanced during the appeal in an effort to rationalize the

order in spite of counsel’s admission, in effect, that such order

was invalid on its face.

Thus, the Court first hietiiatiaid that, “Our case does

not come squarely within Wiley because the Rutherford col-

lective bargaining contract had expired prior to take-over”

(Appendix, p. 5a). Then, however, the Court stated that,

“Wiley reaches beyond the Board’s order in this case and, in

so doing, strongly supports the more limited successor doc-

*trine developed by the courts of appeal but not as yet ex-

pressly declared by the Supreme Court” (Appendix, p.’ ~

1Apparently that was in detqpente to this Court’s adinintion in

Wiley that, “This case cannot readily be assimilated to the category of

those in which there is no contract whatever. .

John Wiley & Sons, Inc. v. Livingston,

/ 376 US. 543, 550, 84 S.Ct. 909, 915,

11 L. ed. 2d 898, 905 (1964)

—

toma NORE ne om a

33 |

This latter observation conflicts directly with this Court’s

expressed limitation in Wiley that, “[W Je do not suggest any

view on the questions surrounding a certified union’s claim

_, to continued representative status following a change in own-

- ership.” John Wiley & Sons, Inc. v. Livingston, 376 U.S..

543, 551, 84 S. Ct. 909, 915, 11 L. ed. 2d 898, 905 (1964).

. The Court of Appeals then cited a number of cases to sup- —

port the proposition, “. . . that if the transfer of assets and ;

employees from one pata a to another leaves intact the

identity of the employing enterprise, then the former’s duty

to recognize and bargain with an incumbent union devolves —

upon the latter as ‘successor employer’ ” ( Appendix, p. 5a-6a).

Those cases, however, merely held. that “successor employ- -

~ ers” violated the law by refusing to recognize the union and

to bargain upon,demand after they became successors and at

a time when they had no good-faith doubt of the union’s rep-

resentative status. These precedents obviously fall far short

of lending any support to the Board’s s ruling in this case that

Overnite was legally bound to recognize and bargain with

the Union before it became a “successor employer” and be-

fore the Union demanded, or had the pet to demand, bar-.

gaining with Overnite.

It only begs the question to say here that Overnite was a

so-called “successor employer,” for Overnite fully discharged

every: obligation which has ever been required of “successor

employers” heretofore in such situations. The Board’s find-

ing of no violation by Overnite during the successorship estab-

lishes with legal finality that this is true. :

The entire controversy, and the errors here noted, may

be traced directly to the Board’s underlying mishandling of |

the “successor employer” doctrine. Thus, upon the mere basis

_that Overnite is a “successor,” the Board has steadfastly in-

sisted that, as a matter of law, there has been one, and only

one, employer of the individuals involved. It has blindly re-

fused to accept that two separate and independent corpora-

tions existed before and survived after the transaction, that

_ there was a hiring of one corporation’s employees by the

other, and that before the hiring there was one employer —

while after the hiring there was another and different em-

ployer. It is for this reason that the Board invariably charac-

terized Overnite’s hiring of employees as “unilateral action.”

If any explanation is needed to slow that the issue cannot

properly be resolved upon the basis of any such linguistic

' manipulations as that, such explanation is readily found in «

Section 5(11) of the Interstate Commerce Act. There, in pro-

viding interim protection for employees to be affected by

rearrangement of carrier operations, the Interstate Com-

merce Commission is given “exclusive .and plenary” juris-

. diction over “any carrier or corporation participating in or

_ resulting from any transaction approved by the Commission”

‘* (emphasis supplied), and any such carrier or corporation is

immunized against other restraints issued by any agency of

government, including the National Labor Relations Board.

No amount of argument or explanation or sophisticated

phraseology can alter the fact that Overnite either partici-

pated in or resulted from the transaction which the Commis-

_ sion approved here. And, so no label such as “successor em-

ployer” can remove Overnite from the coverage and protection

of that section of the Interstate Commerce Act.

. Confusion over these principles is manifested in the pe- .

culiar contradictions between the Board’s order and the

Court’s decree. While the Board found a violation only with

respect to the pre-purchase conduct of the Company, the

Court apparently held an opinion to the contrary—that no

such violation existed. Insofar as is made to appear in the

record, the Court accepted the goncession of Board’s counsel

_noted above. Conversely, the Board found 1io violation with

' respect to the post-purchase conduct of the Company and

gave no consideration to that in its deliberations. But the

Court, again contrary to the Board, concluded that Overnite’s

post-purchase conduct amounted to ‘an on refusal to

bargain:

“Overnite had a duty to bargain on the day of take-

over, November 19, 1964, which it did not recognize until —

eleven days later on November 30. We do not-mean to

imply that Overnite had on November 19 an affirmative

duty to at once seek out the Union to begin bargaining”

4 (Appendix, p. 6a) (emphasis supplied ).

The eleven-day interval between consummation and formal

recognition was explained to the Board’s satisfaction during

the investigation. The Union’s request for recognition, ad- —

‘dressed to A. M. Price, was dated Friday, November 20, |

1964, and could not possibly have reached Overnite until —

the next week - (147-148). On Wednesday of that week,

Price’s secretary notified the Union that the reply would be. -

delayed due to Price’s absence, but it would be forthcoming

“shortly after he-returns” (148). This promise was fulfilled |

immediately upon Price’s return on the following Monday,

when he voluntarily recognized and offered to bargain with

the Union at these terminals (149-150). Another two weeks

went by before the Union even requested bargaining (151).

It is not surprising, therefore, that the Board found no mis-

conduct or unnecessary delay in this transaction. With all due —

respect, the Court’s finding to the contrary is precisely the

} ‘sort of “propelling of the court into the domain . . . of the

administrative agency” which was precluded by this Court

_ in the Chenery and Burlington Truck Lines Cases, . °

Finally, the Court ruled that Overnite was not “free to act |

unilaterally” during the time. when, admittedly, it liad no

“affirmative duty” to seek out and bargain with the Union.

_ Again, with all due respect, it is submitted that this is patent

error since the duty to refrain from unilateral action arises

only from the corresponding duty to bargain. It cannot exist

- when there is no duty to bargain. National Labor Relations

Board v. Katz, 369 U.S. 736, 82 S: Ct. 1107, 8 L. ed. 2d 230

(1962); May. Department Stores Company v. - National |

_ Labor Relations Board, 326 US. 376, 665. Ct. 203, 90 L. ed.

145 (1945).

_If pre-hire or pre-purchase naconiatien 1 is to be required,

_ it can be so only by virtue of valid action of Congress and

‘not by mere order of the National Labor Relations Board.

“The deference owed to an expert tribunal cannot be

allowed to slip into a judicial inertia which results in the

unauthorized assumption by an agency of major policy

decisions ‘properly made by Congress” (emphasis sup-

plied). : | ‘American Ship Building Company v.

| ee National Labor Relations Board,

380 U.S. 300, 318, 85 S. Ct. 955,

' 967,13 L.ed. 2d 855, 867 (1965)

“The aan Court has made it clear. that national

labor policy is for the Congress and not the Board to deter-

mine” (emphasis supplied).

Armco Steel Corporation v. National

Labor Relations Board, 344 F. 2d

621,625 (6.Cir.1965)

PLL ODS PRI

37 °

III. The Board’s Unprecedented Remedy Was Issued

Arbitrarily In Disregard Of The Petitioner’s

- Rights And Of The Limitations Upon The

Board’s Authority.

Even if it were to be assumed arguendo that the Board

. had the authority to require pre-purchase cqllective bargain-

ing, still there is no legal. justification for the Board’s

“remedy” in this case.

‘That Rutherford was on.he road to financial disaster was

"established without contest (15, 199-200). On account of

lack of work, some of Rutherford’s employees were earning

as low as one-fourth of what Overnite’s employees were

earning at the same time (227-230). Had Overnite not taken

over Rutherford’s assets, Rutherford’s employees faced the

almost certain and immediate oe of _— out, of work

* completely. :

As the Court nate; Gowedheut the litigation before the

Commission, and in its subsequent collective bargaining,

Overnite made it clear that it could not and would not agree

to take on the onerous costs which had contributed ma-

terially to Rutherford’s financial distress (Appendix, p. 3a).

Section 8(d) of the N. ational Labor Relations Act, 29 U.S.C.

§158(d), fully protected Overnite’s right to maintain ‘this ~

position.

Prior to consummation of the purchase, Rutherford ie

gained to an impasse with the Union over its proposal for a

new contract with wages and benefits lower than those which

ultimately were ingtalled by Overnite after the purchase was

completed (Co. 18, 126-141). Moreover, Rutherford had

notified the Union, i in effect, that these lower rates and. bene-

fits would be instituted, over the Union’s objections, at. an

i. |

38.

: early date (138-139). Rutherford had already gone through |

this same process in Bristol and had put the lower rates into |

effect after coming to the same sort of impasse with the

Union at that terminal (104-106, 121-124).

As has already been noted, promptly following the pur- —

chase, Overnite engaged in extensive bargaining with the

Union, and it is conceded that such bargaining was in com-—

plete good faith. Appearing as a Board witness in this case,

the attorney who bargained for the Union summarized Over-

nite’s bargaining conduct in the following way:

“They, have generally taken’ the sialeion thoughout

the negotiations that they will negotiate from which ever

posture we would care to. However, we — however we

wanted to handle it. Which ever proposal we wanted to

_. take up, and to that extent they were willing to discuss

it any way we wanted to discuss it” (95-99). :

All of the foregoing circumstances point to the inescapable

conclusion that, on November 19, 1964, Rutherford’s em-

ployees — already suffering from low wages due to lack of

work and confronted with the prospect of loss of their jobs

— inevitably faced a reduction in their hourly rates and

fringe benefits. Moreover, of all the possible alternatives in

prospect for them, hiring as proposed by Overnite was the one

which would prove by far the most advantageous to them.

- Despite. all of this, and despite the Interstate Commerce —

- Commission litigation and good-faith bargaining by both

companies, the Board approached the issue of remedy as if

it were dealing with an employer who, during a period of

bargaining. over established employee benefits, suddenly

slashed such benefits for the deliberate purpose of under-

mining a‘ certified union and disparaging the bargaining

Atlas tia Asinasiit eilthnineeh eel ipaiisesalaniaeinelts F ignite emer rr Mp OT y es

aif aiai heels ee tte , . . 1" ; ran . ‘ amen Wit a ae Re ates - " ane .

ab Gey / " we x ii tes VE Soria jane te -

et Oe ee OT 0 RO: Ms a a

- process — all to the complete surprise of the Union and the

detriment of his employees.

Overnite:

. restore the wages, hours and working conditions

ore prevailed at these terminals on November 19, 1964,

just before Respondent assumed control of them, and .

make employees whole for any economic loss they suffered.

asa result of Respondent’s unlawful action by paying each :

of them the difference between Rutherford’s prevailing —

wages on November 19 and the néw scale of wages Over-

nite placed them on at takeover; by paying each of them

for at least 8 hours’ service each day he ‘worked and at

- the rate of time-and-a-half for each hour worked over 40

hours per week since November 19, 1964; and by paying

to each employee a sum equal to any contributions he has

made to insurance and pension programs since November

19, 1964. All of this backpay shall continue running until

the date Respondent shall comply with the recommenda-

tions herein . . . with interest added thereto. ....” (24-25,

28) (emphasis supplied). :

_ This, of course, is exactly what Overnite has maintained

throughout the years of litigation and bargaining that it

could not do, Jé is also precisely what the. Interstate Com-

merce Commission, and the Courts which affirmed its order,

have decreed that Overnite shall not be required to do. Even

if a Board order requiring pre-purchase collective bargaining

is not an additional “restraint” of government which is pro-

' hibited by Section 5(11) of the Interstate Commerce Act,

_ surely the same thing cannot be said for this “remedy,” that

would require Overnite to pay out large sums of money.

which the Commission order and court decrees affirming it,

Thus, the remedy ordered by the Board directs that

40.

_ by virtue of that statutory provision, have determined that

Overnite cannot be required, by any authority, to pay out.

That the Board’s “remedy” is illegal and punitive and not

remedial is easily demonstrated in a number of ways. First,

as to the practical effect of the order itself, even though

Overnite maintains a company-financed pension plan with

benefits which, arguably at least, are far better than those ;

provided in the Union’s own plan (232-234), the Board has

unhesitatingly decreed that Overnite shall contribute retro-

actively to the Union’s plan also. The same ‘is. true with

respect to insurance. Overnite’ S group insurance program

provides benefits comparable to, if not better than, the Union’s

‘plan (231-232). But the Board again orders double protection

_by ‘directing Overnite to contribute retroactively to the

Union’s plan. Rutherford employees never enjoyed double

pension and insurance coverage under the status quo. ante!

Just as truly, unjust enrichment of these employees is re-

quired by the Board’s remedy with respect to wages. Fre-.

quent reference has been made to the fact that the hourly —

* rate proposed and installed by Overnite was lower than that

‘* called for in the Union’s.expired contract. Yet the Board

and the Court of Appeals have completely ignored the estab- .

lished facts that entitlement to higher hourly rates is of .no

benefit when there is no work to do and that a reduction.

in those hourly rates was inevitable and imminent in any

event. Further ignored was the fact that the employees bene-

.fited greatly by the regular work which was provided for

them by Overnite. In light of these circumstances, how can

it logically or reasonably be stated that the Board’s order

would merely restore the “status quo ante”? (28).

The truth of the matter: is that restoration of the so-called ,

“status quo ante” is an impossibility in this case. In the first

place, it would necessarily include the constitutionally pro-

tected contract right of Overnite to refuse to complete the

purchase if the conditions now attached by the Board were

imposed upon it. Overnite has repeatedly made it clear that

it would unhesitatingly exercise that right under such circum-

‘stances (197). Hence, the status quo ante would return the

employees to an employer headed for bankruptcy.

When Overnite made this purchase, the Labor Board’s

only existing pronouncement as to legal principles controlling —

conduct of purchasers in such situations was directly contrary

_ to its ruling in this case. At that time, the trial examiner who

later denounced Overnite in this case was then presiding in.

the only prior case on record bearing any similarity to this

one, and jn that case he dismissed the refusal-to-bargain |

charge because the drivers. involved had not “become the

‘employees’ ” of the purchaser. Chemrock Corporation, 151

NLRB 1074, 1076 (1965).

_It was over four months: after Overnite had purchased

Rutherford’s assets, and during the period of its bargaining

_with the Union, that the Board reversed the decision of the

trial examiner. in that case. Even then, the majority of a

divided Board panel emphasized that: .

“We do not hold, as Member Jenkins suggests, that the

purchaser of an enterprise is legally obligated to refrain

from making any changes in the employment status of his _.

- predecessor’s employees or to continue their employment

under existing terms and conditions of employment” (em-

phasis supplied ). Chemrock Corporation, 151 NLRB

-. 1074, 1080 (fn. 8) (1965)

Surely justice and fairness require that citizens should

have at least some opportunity to adjust to novel doctrines -

ee ee eel eae e ? settee his . ‘al : “~ wr =

created by administrative agencies, and that they should not

be subjected to punitive ex pe facto regulation by such

agencies.

_ “The inequity of such an impact of retroactive policy .

- making upon a respondent innocent of any conscious vio- _

lation of the act,.and who was unable to know, when it

acted, that it was guilty of any [misconduct] . . . is mani-

fest. It is the sort of thing our system of law sila. ”

National Labor Relations Board v.

Guy F. Atkinson Co., 195 F. 2d

141; 149 (9 Cir. 1952) |

It seems that there should be no doubt that the instant

case falls within the purview of this Court’s admonition that:

“Reviewing Courts must be influenced by a feeling that

_they are not to abdicate the conventional judicial function.

Congress has imposed on them responsibility for assuring

that the Board keeps within reasonable grounds.” )

Universal Camera Corp. v. National

Labor Relations Board, 340 U.S.

474, 490, 71 S. Ct. 456, 466, 95 |

_ L. ed. 456, 468 (1951)

‘As justification for its remedy, the Board contradicted the

evidence with the unsupported assertion that if Overnite had

“fulfilled its bargaining obligation . . . it is well within the

A realm of possibility that as a result of such bargaining the

wages, etc. would not have been changed at all, or at least

not so drastically... . . [I]t is speculative; and cannot be de-

termined, what rate of pay, hours and working conditions

might have governed the employees’ employment had [Over-

nite] fulfilled its obligation to bargain with their representa-

' tive” (24): The facts established -by the record show quite

to the contrary that there is nothing speculative about this

matter, because no such possibility existed and it was well

known by all concerned, long before take-over, what rates of

_ pay and employee benefits Overnite intended to offer—and

the maximum it was willing to offer—in connection with the

proposed transaction. ns?

Overnite’s steadfast position during some four years of

litigation as to these very wage rates and benefits, together

with the actual results of intensive, good-faith bargaining

- that took place immediately after the alleged “unilateral

action,” clearly demonstrate that Overnite remained uncon-

vinced after hearing again and again everything that the

Union could advance by way of eae: and a in

‘support of its demands.

According to the Board and Court of Appeals, the only

way Overnite could have “fulfilled its obligation to bargain”

in this situation was to hire the former Rutherford employees

_ on the same terms that had applied to them while working

_ for Ruthérford. Since .Overnite had repeatedly made it

known that it would exercise its right to decline to purchase

the Rutherford assets if any such conditions were imposed

upon the purchase, the Board’s speculation must necessarily

lead to the conclusion that the employees in question have

in no way been harmed’since Overnite would never have be-

come their employer under the conditions forming the basis

of the speculation. : 7

What the Board has done in this case as to “remedy” seems

to be precisely the sort of administrative conduct which this

Court struck down in Burlington Truck Lines, where it was

found that an Interstate Commerce Commission remedy en-

croached upon the jurisdiction of the Labor Board.

«44

“The difficulty with the order arises in connection with

the findings. and conclusions relevant to the choice of

remedy.

| “There are no findings and no analysis here to justify

the choice made, no indication of the basis on which the

Commission exercised its expert discretion. We are not

prepared to and the Administrative Procedure Act will

not permit us to accept such adjudicatory practice. Expert

-discretion is the lifeblood of the administrative process,

but ‘unless we make the requirements for administrative

action strict and demanding, expertise, the strength of

modern government, can become a monster which rules:

with no practical limits on its discretion.’ .. ‘Congress

. unbounded discretion of the regulatory body.’... And for “

_ + the courts to determine whether the agency has done so,

it must ‘disclose the basis of its order’ and ‘give clear indi-

cation that it has exercised the discretion with which Con-

gress has empowered it.’ The agency must make findings

that support its decision, and those findings must be sup-

ported by nce rt ene: Lisp in original).

“Commission counsel now attempt to justify the ‘Com-

mission’s ‘choice’ of remedy on the ground that a cease-

and-desist order would have been ineffective. The short

answer to this attempted justification is that the Commis-

sion did not so find” (citations omitted) (emphasis sup-

plied). . Burlington Truck Lines, Inc. v-

3 United States, 371 U.S. 156, 165,

167-168, 83 S.Ct. 239, 244, 245,

x ‘ - 246,9L.ed. 2d 207, 214, 215-216

/ Ganon " (1962) .

The Court of Appeals adopted the Board’s view, stating

that “Overnite’s instant unilateral action in violation of its

le a

eidady sd ic ia a re

Y toa Sh tnthy merci *. : - POI pat a rig engy Mt -

’ ; . an “4

erenee 28 tee ees —

_ duty to bargain has made it impossible to determine what

- would have occurred had it moved more slowly” (Appendix,

p. 6a) (emphasis supplied). And yet the Court, in framing

the issue presented to it, acknowledged “. . . that the pur-

_ chaser, Overnite, had made known in advance and consist-

ently its unwillingness to maintain [the] level. of employee

benefits” (Appendix, p. 3a) (emphasis supplied) which the

Board had ordered Overnite to install retroactively and con-.

tinue in effect for a period now covering more than two and

one-half years. With all due respect, it appears that this is

only another way of saying that Overnite’is now properly

ordered to yield everything demanded by the Union merely

_ because it is allegedly impossible to determine whether it

would have yielded anything whatever i in pre-pfirchase bar-

gaining! | aes

‘The Court’s approval of the Sie remedy on that basis

is squarely and directly in conflict with the ruling of the

Court of Appeals for the Second Circuit.in aeael oar

eter Co. v. National Labor Relations Board, __ F. 24 __,

- 65 LRRM 2113 (April 1967). The latter case involved no |

change in-corporate ownership ot operation. The Board ~

found, with court approval, that the employer there violated

Section 8(a)(5) of the National Labor Relations Act in re-

moving its plant fora distance of 28. miles and installing

lower,wages and benefits without proper bargaining with a

certified union which represented its employees. And there,

as here, the Board ordered reinstatement of wages and bene-

fits which existed at the old plant with backpay for the differ-

~ 1The Court did not explain how Overnite might be expected to move

“more slowly” than it did when it submitted to the extensive litigation

with the Union over the same subjects as to which it allegedly took “yni-

lateral action” later. Moreover, in cases such as this where the purchaser ~

_ is under a statutory duty to assume instantly upon consummation the.”

obligation of rendering common carrier service in accordance with the —

authority granted by the Interstate Commerce Commission, what op-

Fe ee ee

‘46

ence between that and the lower wages and benefits which

were put into effect at the new plant. In rejecting that

“remedy,” ’ the Court stated:

“A sanction for refusal to bargain that would treat the

guilty party as if he had agreed to what the other party

demanded although the evidence shows he would have

done nothing of the sort would -give insufficient respect to

Congress’ direction in §8(d) that the obligation to bargain

‘does not compel either party to agree to a proposal or

. require the ny of a concession.’

| “The a a ‘pay at the rate pro-

_ vided in the old ‘contract—would make the workers not

merely whole but very much more; carrying over the old

pay scales is something that Cooper was demonstrably

unwilling to do and the Union rather obviously lacked

economic power to compel. :

_ - “Recognizing there can be no ideal solution, we think

that in this case back pay also should be based on the

results of the bargaining now ordered or, if this has none,

‘on the Middlefield scale. Here again we are also influenced

_ ~ by the greater severity of the order concerning this em-

ployer as contrasted with past treatment of more egregious

violators of §8(a)(5) and the lack of reasoned explana-

tion for the difference” (emphasis supplied). |

Cooper ThermometerCo.v. |

. National Labor Relations Board, .

a + wee TP

2113, 2118, 2119 (April 1967)

In cialis the seiinliliins of the Board’s choice

of rernedy in this case, the panel majority of the Court of

Appeals followed the theory that courts should take a passive

attitude in cases of this.sort Because “the task of devising

BRET INONT Sa PEDO EP gS, ¢ ~ a

ee 47

remedies . . . is purely a matter for administrative compe-

tence” (Appendix, p. 9a). Remedy directives, however, are

left by the National Labor Relations Act absolutely and un-

qualifiedly within the discretion of the reviewing court—the

court weighing and appraising them for itself and “‘enforcing,

. modifying, and enforcing as so modified, or setting aside in

whole or in part the order of the board” entirely as the court

may see fit. National Labor Relations Act, 29 U.S.C. §160(e).

This Court has emphasized that courts of appeal should

not hesitate to ‘exercise that authority in saline cases

such a3 this.

“We have said that “this aut@iority to order affirmative

action does not go so far as to confer a punitive jurisdic-

tion enabling the Board to inflict upon the employer any

_ penalty it may choose because he is engaged in unfair labor

practices even though the Board be of the opinion that thé

policies of the Act might be effectuated by such an order.’

We have said fhat the power to command affirmative

_ action is remedial, not punit :

. ° “Tn that view, it is not. ‘alley to justify the Board’s

requirements to say that they would have the effect of

deterring persons from violating the Act. That argument

proves too much, for if such a deterrent effect is sufficient

_ to sustain an order of the Board, it would be free to set up

any system of penalties which it would deem adequate to

- that end” (citations omitted).

_ Republic Steel Corp. v. National —

Labor Relations Board, 311 U.S. 7,

11-12, 61S. Ct. 77, 79, 85 L. ed.

6, 10 (1940), quoting from —

Consolidated Edison Co. v. National

Labor Relations Board, 305 U.S.

197, 235-236, 59S. Ct. 206, 219, @

83 L. ed. 126, 143 (1938) f

48.

“This is not to say. that the Board may apply a remedy

it has worked out on the basis of its experience, without _

~ regard to circumstances which may make its application to

“a particular situation oppressive and therefore not calcu-

a" to effectuate a policy of the Act.”

wit . National Labor Relations Board v. °

om he Seven-Up Bottling Co., 344 U.S.

| 344, 349,73S.Ct.287,290,.

OTL. ed. 377, 383 (1962)

IV. Carrier Consolidations Which Would Further The

Public Interest In Efficient Transportation Service _

Will Be Thwarted By The Conflicts Which Are:

3 | Created By The Board’s Order And The

One result of allowing such a decision as has been rendered _

-here to stand uncorrected: was accurately foretold be Board

Member Jenkins, dissenting in the Chemrock case.

“Finally, the majority has placed an unnecessary, and

in some cases fatal, restraint on the free alienation of

_- business enterprises or parts thereof: If a prospective

_ manner as will in his judgment convert a failing or non-

profitable operation into a competitive and: profitable.

venture, the likelihood that a business, may be shut down -

or sharply curtailed by thé” prospective seller becomes

1 Pere, ea: Chemrock Corp., 151 NLRB

! + "1074, 1086 (1965)

‘The Board’s order here would restore the ‘conditions which

existed before Congress undertook regulation of ange-

‘ments of common carrier businesses when . nsolidations

were bogged down in fruitless collective bargaining. Are car- .

riers, disappointed with protective orders of the Interstate -

Commerce Commission, now. free to insist upon, and to in-

stitute, less stringent protection | for employees in collective. 7

bargaining — all in total ‘disregard of the Commission’ S:.;

*’ order?. That, of course, is the principle’ of this case. If a car-

rier is required to disregard the Commission’s order when the —

‘ union is the disappointed litigant, is such carrier not ob-:

. viously permitted to disregard - order when it is the dis-

_ appointed litigant? . NES

Questions equally’ as perplexing, and nipltitvilindes in num-

ber, should be expected to arise if this ruling is not struck”

‘down by this Court. For example, is union recognition and

collective bargaining now to precede resolution of the tum-

erous and complicated questions of representation which

arise under the National Labor Relations Act? And, if not, -.

_. how. are such questions to be’ resolved and bargaining

~ also to be completed instantaneously as is seemingly re-.

quired here? These few examples of the many problems,

necessarily raised by the Board’s decision, clearly show that —

it is the Board in this case which has far sihesiess the

bounds of its jurisdictional authority.

“Implicit in this analysis is a recognition that if either

agency is not careful it may trench upon the other’s juris-

diction, and, because of lack of expert competence, con-

travene the national policy as to transportation or labor

relations.” Burlington Truck Lines, Inc. v.

! : United States, 371 U. S..156, 173,

83 S. Ct. 239, 248, 9 L. ed. 2d 207,

219 passé i

Upon the basis of all the foregoing, it is siegeitha eb :

mitted that this Petition for Writ of Certiorari should be —

granted. | _ — Wutrerorp S. BLAKENEY

ost ie Jj. Ww. ALEXANDER, cee

eee ig | _ Attorneys for the Petitioner seh

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