Brief for the Respondent in Opposition — System Council T-4 v. National Labor Relations Board

Supreme Court, U.S,

aia DEC 8 197]

Supreme Court of the Anited

Ocroser Term, 1971

No. 71-646

SYSTEM COUNCIL T-4, COMPRISED OF LOCAL

UNIONS 134, 165, 315, 336 AND 399 OF THE

INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD and

ILLINOIS BELL TELEPHONE COMPANY ;

Respondents.

BRIEF OF ILLINOIS BELL TELEPHONE COMPANY

IN OPPOSITION TO THE PETITION FOR A

WRIT OF CERTIORARI

Gorpon W. Winks,

225 West Ra:dolph Street,

Chicago, Illinois 60606,

Ropy P. Biccert,

Epwarp W. Bercmann,

Attorneys for Illinois Bell

Telephone Company.

Dowap H. Suarp,

SEYFaRTH, SHaw, FarRwEaTHER &

GERALDsON,

113 West Jackson, Suite 2100,

Chicago, Illinois 60604,

Cf Counsel.

TWENTIETH CENTURY PRESS, INC., CHICAGO 60606

IN THE

Supreme Court of the United States

Ocroser TERM, 1971

NO. 71-646

a

me

SYSTEM COUNCIL T-4, COMPRISED OF LOCAL

UNIONS 134, 165, 315, 336 AND 399 OF THE

{INTERNATIONAL BROTHERHOOD OF —

ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

vs. :

NATIONAL LABOR RELATIONS BOARD and

ILLINOIS BELL TELEPHONE COMPANY,

Respondents.

BRIEF OF ILLINOIS BELL TELEPHONE COMPANY

IN OPPOSITION TO THE PETITION FOR A

WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 446

F 2d 815 (Pet. App. 3-9). The decision of the Natioral

Labor Relations Board is reported at 179 NLRB No. 119.

JURISDICTION

The petition should be dismissed because it was filed too

late. The period allowed by statute ended ninety days after

the denial of rehearing below. That day was Tuesday, No-

vember 9, and the petition was filed two days later without

an excuse. 28 USC 2101(c) ; Pittsburgh Towing Co. v. Mis-

sissippi Valley Co., 385 US 32 (1966); Levine v. United

States, 380 US 915, 967 (1965).

QUESTION PRESENTED

Whether the Board and the Court of Appeals abused their

discretion in deciding that Illinois Bell had not violated the

National Labor Relations Act.

STATEMENT OF THE CASE

This case involves only well-settled law. The Board's

General Counsel charged the Company with violating Sec-

tion 8(a)(1) and (3) of the Act by threatening to change

the seniority of certain strikers, and by actually doing so.

The pertinent parts of the Act are:

“Sec. 8. (a) It shall be an unfair labor practice for

an employer—

“(1) to interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed in

section 7; . . 2

“(3) by discrimination in regard to hire or ten-

Fn 5 rage oF discourage member

encourage or

ship in any labor organization. . .

At the hearing it became perfectly clear that the Company

had not changed anyone's seniority. The Board's General

Counsel thereupon ceased to make any claim under Section

8(a)(3) and confined hie case to the relation of Section

8(a)(1) to a company statement of June 4, 1968. Trial Ex-

aminer’s Decision, footnote 7. The Trial Examiner found

that the Company had not violated the Act in any respect.

Board Chairman McCulloch and Member Zagoria approved

all of the Trial Examiner's decision; Member Brown dis-

sented, but solely with respect to the relation of the com-

pany statement of June 4 to Section 8(a)(1). The Court of

Appeals unanimously sustained the Board.

3

Petitioners continue to allege a threat to seniority. But

their “fundamental” claim is that the General Electric deci-

sion in 80 NLRB 510 (1948) should be overruled to require

for the first time that days absent on an economic strike

must always be counted as if they were days worked for the

purpose of fixing the amounts of future fringe benefits. The

consequence of their argument would be full pay for all

persons on strike.

I THE FINDINGS OF THE NATIONAL LABOR RE-

LATIONS BOARD ARE BASED UPON SUBSTAN.

TIAL EVIDENCE ON THE RECORD AND SHOULD

NOT BE REVIEWED BY THIS COURT

Section 10(f) of the Act provides that the Board’s find-

ings of fact shall be “conclusive” “if supported by sub-

stantial evidence on the record considered as a whole... .”

Section 10(c) of the Act provides in part that the Board

may enter an order against a respondent only “upon the

preponderance of the testimony taken. . . .”

There is no claim that any of the Board's procedures were

unfair, or that its personnel were biased or unfamiliac- with

Il. THE MESSAGE OF JUNE 4 DID NOT VIOLATE

THE NATIONAL LABOR RELATIONS ACT

On June 4, 1968, the Company sent a message to all of its

employees which is quoted in the opinion of the Court of

Appeals. Everyone involved in this case except petitioners

agrees that the Company had the right to do exactly what

that message said. One of the Board members thought that

the message implied a threat to seniority, although that sub-

ject was not specifically mentioned in the message. His view

4

was rejected by the other two members of the Board panel

and by a unanimous Court of Appeals. In any event, this

issue turns on the particular facts of this case, and is not

of sufficient general importance to warrant review by this

Court.

The Board specifically found at page 12 of the Trial Ex-

aminer’s decision in this case that the Company’s motive

was “a legitimate business interest” and not “anti-union con-

siderations.” Petitioners’ accusations of discriminatory

motives, never having been supported by the requisite prpof

or findings, must be rejected. Radio Officers’ Union v.

NLRB, 347 US 17 (1954), cited by petitioners on this point,

was a case in which the Board reached the opposite conclu-

sion, and is not controlling here.

Petitioners assert a conflict with Tex Tan Welhausen Co.

v. NLRB, 419 F 2d 1265 (5th Cir.), vacated on other

grounds, 397 US 819 (1970), enforced as modified, 434 F 2d

405 (5th Cir., 1970), cert. den., 402 US 973 (1971). On the

contrary, that case was properly cited by the Seventh Cir-

cuit in its opinion as supporting its decision in this case. 446

F 2d at 819. The Tex Tan strike was caused by the em-

ployer’s unfair labor practices, and the workers’ vacation

rights were “already proportionately reduced for the time

the workers were on strike ....” 419 F 2d at 1271. Neither

the Fifth Circuit nor the Board ever objected to that propor-

tionate reduction because of that strike; they prevented a

“further complete forfeiture ....” 419 F 2d at 1271.

Ill THE COMPANY'S REFUSAL TO COUNT ALL OF

THE STRIKE TIME AS “SERVICE” WAS LAW-

FUL

Petitioners’ principal contention is that “strikers main-

tain their employer-employee relationship and continue to

be entitled to all of the rights and benefits derivative there-

5)

from.” Pet. Brief, p. 10. “Since the employer and employee

relaticnship is the source of all employee rights . . . a contin-

uation of that relationship must result in the entitlement to

such benefits.” Pet. Brief, p. 8. But these sweeping general-_

izations prove too much. Petitioners’ theory would apply

just as fully to paying hourly wages during a strike as it

does to increasing a worker’s rights to pensions, vacations

and other work-connected fringe benefits merely because of

the passage of time during a strike. Petitioners’ contention

was fully answered by the Court of Appeals, particularly in

the last paragraph of its opinion. It was also discussed and

rejected by the Trial Examiner. His conclusion on that

point was accepted by the Board without objection.

The Board has repeatedly held that since strike time is

not paid for, it need not be treated as work time in com-

puting the amount of future employer fringe payments such

as vacations and pensions. Strikers are not rendering “ser-

vice”; they are withholding it. General Electric Co., 80

NLEB 510 (1948); Kimberly-Clark Corp., 171 NLRB No.

82 (1968) ; Evening News Assn., 185 NLRB No. 70 (1970) ;

Roegelein Provision Co., 181 NLRB No. 72 (1970); Ace

Tank Co., 167 NLRB 663 (1967).

The courts have consistently held that such rights to

fringe benefits from the employer as vacations, pensions

and insurance can and should be related to production and

wages. Inland Steel Co. v. NLRB, 179 F 2d 247, 253 (7th

Cir.), cert. den., 336 US 960 (1949), enforcing 77 NLRB 1

(1948) ; Pittsburgh-DesMoines Steel Co. v. NLRB, 234 F 24

74 (9th Cir., °960) ; Quality Castings Co. v. NLRB, 325 F 24

36 (6th Cir., 1963) ; Melville Confections, Inc. v. NLRB, 327

F 2d 689, 692 (7th Cir., 1964).

The cases cited by petitioners show that an employer can-

not cancel rights which had already accrued when a strike

began. NLRB v. Erie Resistor Corp., 373 US 221 (1963)

6

(20 years of super-seniority given to nonstrikers); NLRB

v. Great Dane Trailers, Inc., 388 US 26 (1967) (accrued

vacation benefits paid to non-strikers but denied to

strikers); NLRB v. Fleetwood Trailer Co., 389 US 375

(1967) (new hires preferred over economic strikers). But

the instant case is easily distinguishable. Illinois Bell paid

all vacation benefits based on service prior to the strike; the

restrictions on service credit for time lost due to strike

absence apply only to eligibility for larger benefits payable

in future years.

The decisions cited by petitioners were also cases in which

the Board exercised its judgment against an employer in a

particular fact situation, and in which epecial reliance was

placed by this Court on that exercise of judgment. 373 US

at 230-3; 388 US at 33-4; 389 US at 378. But in the case at

bar the Board and the Seventh Circuit have both exercised

their judgment in favor of the employer’s position in a case

with different facts.

The record shows that “seniority” in this case may affect

such matters as the choice of vacation times, the choice of

shifts, the sequence of layoffs, and the making of promo-

tions. These are all rights of one employee as against all

others, and the Company did not change them. But “ser-

vice” (which the Company did adjust) is a completely dif-

ferent concept which affects such other and differeut bene-

fits as the length of vacations, the maximum amount of

sickness payments, and the size and starting date of pen-

sions. These are rights of each employee as against the

employer. “Seniority” and “service” are dealt with separ-

ately in the union contract (G. C. Ex. 2, particularly in

Article XXI), and it is important that they be kept distinct

for a proper analysis of this case. The Board certainly kept

them separate, relying on “uncontradicted credited testi-

7

mony” and a past practice of “many years” (Trial Exam-

iner’s Decision, fn. 2, pp. 3, 6-8). Petitioners’ brief repeat-

edly confuses the two concepts.

CONCLUSION

The petition should be dismissed for lateness. If the

merits are considered, it should be denied.

Respectfully submitted,

Gorpow W. Wriyxs,

225 West Randolph Street,

Chicago, Illinois 60606,

Rony P. Biccerr,

Epwarp W. Bercmann,

Attorneys for Illinois Bell

Telephone Company.

Dowap H. Suarp,

Seyrartu, Suaw, Farrweatuer &

GERALDSON,

111 West Jackson, Suite 2100,

Chicago, Illinois 60604,

Of Counsel.