# Opposition Brief — Weltronic Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1491%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 398 U.S. 938 ## Text Gn the Supreme Court of the United States OcToBER TERM, 1969 No. 1422 WELTRONIC COMPANY, PETITIONER Vv. NationaL LaBor RELATIONS BoarD AND LocaL 155, INTERNATIONAL UNION, UNITED AUTOMOBILE, AERO- spaAcE & AGRICULTURAL IMPLEMENT WORKERS OF AmERICA—U A W ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. 19-25) is reported at 419 F’. 2d 1120. The Board’s decision and order (Pet. 25-41) are reported at 173 NLRB No. 40. JURISDICTION The judgment of the court of appeals was entered on December 16, 1969, and a petition for rehearing en bunc was denied on January 22, 1970 (Pet. 2). The petition for a writ of certiorari was filed on April 14, (1) 384-835 -—70 2 1970. 'The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the National Labor Relations Board properly concluded that the employer violated its duty to bargain under the National Labor Relations Act when it transferred work from an old facility to a new plant three miles away without first bargaining about that decision with the union representing the em- ployees who formerly performed the work at the old plant. 2. Whether the Board, in determining the unfair labor practice charge, had jurisdiction to interpret provisions of the collective bargaining agreement re- lied upon by the employer as a defense to the charge. STATUTE INVOLVED The relevant provisions of the National Labor Rela- tions Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. See. 151, et seq.), are set forth at page 42 of the petition. STATEMENT Weltronic Company, the petitioner, manufacturers, sells and distributes resistance welding controls and, since about 1960, has also produced and sold ‘“‘plant central’ equipment, used to monitor and control plant operations (J.A. 92, 94; 49, 50, 52, 85-86).* From May 1965 until April 1967, the Company manufactured some plant central equipment together with resistance 1“J.A.” references are to the Joint Appendix filed in the court below. pases | _ 3 welding controls at its Eight Mile Plant in Southfield, Michigan (J.A. 94; 50). While two employees per- formed most of the wiring and electronic assembly work on the plant central equipment, all of the Eight Mill Plant employees were assigned to various plant central jobs at one time or another. (J.A. 95; 7-8, 20-21, 26-27, 33-35, 36-37). The employees at the Eight Mile Plant had been represented by the respondent Union since 1947 and were, during the events herein described, covered by a duly negotiated collective bargaining agreement (J.A. 92-93; 4, 6-7, 110-113). On April 1, 1967, without any notice to the Union, the Company moved the bulk of its plant central wiring and electronic assembly work out of the Eight Mile Plant to its new Telegraph Plant, three miles away (J.A. 95; 10, 13, 20, 27, 29, 33, 41-42, 47-48, 59, 60-61, 82-83). No employee was transfered from the Eight Mile Plant to the Tele- eraph Plant (J.A. 95; 61). Although there were no discharges or layoffs as a result of the move, 14 employees at the Eight Mile Plant were already on layoff status when the move took place. The Company did not recall any of these individuals to work at the Telegraph Plant, even though at least some were capable of doing plant cen- tral work (J.A. 95; 39-41, 120). The Company subse- quently hired 5 new, non-union employees for the Tele- graph Plant at much lower rates than those specified in the contract with the Union (J.A. 96; 120, 121). On April 14, the Union shop steward at the Eight Mile Plant filed a grievance protesting the transfer of the plant central equipment work (J.A. 96; 12-13, oo | NLRC IOP TITS SOMIIY CLERC ION HRS ne , » scam 4 42-43, 114). Representatives of the Union and the Company met to discuss the grievance, but could not resolve it and the Union requested arbitration (J.A. 96; 13-16). The Company initially agreed, but then changed its mind, stating its position in a letter to the Union, dated April 26: You have requested that we negotiate and ar- bitrate the question of whether we have the right to establish a Plant Central Division at 20905 Telegraph Road, Southfield, Michigan, without transferring the employees who worked on Plant Central at 19500 West Eight Mile Road, Southfield, Michigan to a new location. Our contract does not provide for negotiation or arbitration of any management rights mat- ters and it does provide that we retain all man- agement rights, including the determination of the location of plants.’ The contract does not provide for transferring any employees to a new location unless we discontinue operations at 19500 West Eight Mile Road, Southfield, Michigan. ? The management rights clause referred to by the Company, contained in Article I, Section 4 of the contract, read as follows (J.A. 110-111) : “The Union agrees that the Management of the Company has the right to manage the affairs of the business, to control its properties, and equipment, and to direct the working forces of the Company in accordance with and subject to the terms of this Agreement. Said functions of Management include the right to hire, discharge or discipline for just cause, to establish new jobs and discontinue jobs, maintain discipline and efficiency of employees, to determine the type of products to be manufac- tured, the location of plants, plan scheduling of production, methods, processes, and means of manufacturing.” ‘ By Manna er aes AR DAD, RN % See = lalla - 2 a NT ES ES EUG NEL 2 TIDE EL OATS IED TL OR RIAD CIN en & * 5 For the above reasons, we decline to negotiate or arbitrate the question referred to in para- graph one hereof. [J.A. 97; 15, 115.] The Union filed another grievance dated May 5, which stated that the Company had violated various provisions of the contract “by refusing to negotiate the moving of this work” (J.A. 97; 15, 116).* The Company refused to meet on this grievance, stating that relocation was ‘‘a matter reserved as a manage- ment right,”? and also denied a subsequent Union re- quest to discuss the problem declaring that it could “see no reason for further correspondence in the mat- ter”? (J-A. 97; 15, 117-119). The Union then filed charges with the Board, alleging that the Company had refused to bargain in violation of the National Labor Relations Act. On the facts set forth above, the Board held that the Company violated Section 8(a) (5). and (1) of the Act by transferring unit work from its Eight Mile Plant to its Telegraph Plant without first notifying the Union and giving it an opportunity to bargain thereon,’ by treating the plant central work as no longer covered by the contract, by paying employees rates less than those provided for in its contract with the Union, and by refusing to negotiate with the Union about the transfer of unit employees to, or the recalling of laid off employees for work, at, the Tele- ’The provisions of the contract referred to by the Union— Article I, Sections 1(b) and 2, and Article IV—are set forth at Pet. 21-22 and J.A. 110. ‘The Board found that the Union, by agreeing to the man- agement. rights clause in the contract, did not waive its right to bargain about the relocation of unit work (Pet. 36). a 6 graph Plant (Pet. 26, 37). The Board ordered the Company to bargain with the Union respecting the transfer of work and, pending the outcome of the bargaining, (1) to give the employees who previously performed plant central work at the Eight Mile Plant an opportunity to continue to perform such work, and (2) to apply the terms of the collective bargaining agreement to the plant central work retroactively to the date of transfer of such work, including the recall and reimbursement for lost earnings of laid off em- ployees who were affected by the Company’s unilateral action. The Board’s order gives the Company the option of either moving the plant central work back to the Eight Mile Plant or retaining it at the Tele- graph Plant, so long as it otherwise complies with the good faith bargaining obligation imposed by the order. (Pet. 26-27, 38-41.) On the Company’s petition for review, the court of appeals enforced the Board’s order (Pet. 25), noting that, ‘‘[w]hile the Board is not empowered to adjudi- cate the rights of parties covered under a collective bargaining agreement, it does have the right to deter- mine by reference to the agreement whether one of the parties has agreed to relinquish a statutory safeguard” (Pet. 23). ARGUMENT 1. In Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S. 203, this Court held that an employer violated his duty to bargain under the National Labor Relations Act when, without first negotiating with the union representative, it con- tracted out maintenance work previously performed hy its employees to an independent. contractor. The a — — “Dares -" a court of appeals correctly concluded that the Fibre- board decision governed the factual situation here. The Company admittedly transferred the plant central work from the Eight Mile Plant to the Telegraph Plant without first bargaining with the Union either about the transfer decision or its effect upon the unionized employees. The transfer did not alter the Company’s basic operation as it continued to manu- facture plant central equipment at the new location by employing lower-paid non-union workers. The reason offered by the Company for the transfer— to achieve greater efficiency and economies—raised matters, as the Court noted in Fibreboard, “peculiarly suitable for resolution within the collective bargaining framework’? (379 U.S. at 214). Finally, the transfer had an impact on the bargaining unit since the company was less likely, following the transfer, to recall any of the 14 employees on layoff status. See Auto Workers v. Na- tional Labor Relations Board, 381 F. 2d 265, 266 (C.A. D.C.), certiorari denied, 389 U.S. 857. The cases relied on by petitioner are not inconsistent with the decision below. In Puerto Rico Telephone Co. vy. National Labor Relations Board, 359 F. 2d 983 (C.A. 1), the court found that the subcontracting out of work attacked by the union did not adversely affect the bargaining unit, since the number of jobs in the unit had actually increased. The validity of the Second Cireuit’s pre-Fibreboard decision in National Labor Relations Board v. Rapid Bindery, Ine., 293 F. 2d 170 (C.A. 2), which involved a plant closing and not a transfer of work as here, has since been questioned by that court. See Genesco, Inc. v. Joint Council 13, United Shoe Workers, 341 F. 2d 482, 488. Even Rapid Bindery, while Oe - Oe ot 2 Eee Or finding no bargaining requirement with respect to the decision to elose down a plant, imposed a duty to bar- gain about the effects of that decision on the employees involved. Two other cases cited by the petitioner, Na- tional Labor Relations Board v. Spun-Jee Corp., 385 F. 2d 379, 383-384 (C.A. 2), and National Labor Rela- tions Board v. Cone Mills Corp., 373 F. 2d 595, 600-601 (C.A. 4), merely hold that unions had waived their bar- gaining rights; there was no such waiver here, 2 Contrary to petitioner’s remaining contention, the Board was authorized to interpret the collective bar- gaining contract to determine whether there was an unfair refusal to bargain. See National Labor Rela- tions Board v. C & C Plywood Corp., 385 U.S. 421; National Labor Relations Board v. Joseph T. Strong, 393 U.S. 357, 360-362. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. 23 | Erwin N. Grisworp, Solicitor General. ARNOLD ORDMAN, General Counsel, Dominick L. MANOLI, Associate General Counsel, Norton J. Come, Assistant General Counsel, JEROME N. WEINSTFIN, Attorney, National Labor Relations Board. May 1970. Of Ce I POMEL LEE E, 6k SOP 8 NN! a aa ET a — - . 8 ~waesemevnetreres 6S OF Go --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1491%3A3. Public record. Not legal advice.