Opposition Brief — East Texas Steel Castings Co. v. National Labor Relations Board

4 an the Supreme Court of the United States

Ocroser TERM, 1972

No. 71-1687

East Texas STEEL Castinas COMPANY, PETITIONER

apa ba ee ee, sais 3

ESSN ET IL ASS MAT MUS Fe Oe

Vv.

NationaL Lasor RELATIONS Boarp

-——

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al)

is reported at 457 F’. 2d 879. The Board’s decision and

order (Pet. App. Exhibit B) are reported at 191 NLRB

No. 28.

JURISDICTION

3 The judgment of the court of appeals was entered

_ on April 20, 1972 (Pet. App. A2), and the company’s

; petition for rehearing was denied on May 18, 1972 (Pet.

: App. A3). The petition for a writ of certiorari was

- filed on June 26, 1972. The jurisdiction of this Court

: is invoked under 28 U.S.C. 1254(1).

: (1)

MEM Scie et NARA ON cede ae) take ie

Whether substantial evidence supports the Board’s _

finding that the company refused to sign an agreement

previously reached with the certified representative of

its employees, thereby violating Section 8(a)(5) and

8(a)(1) of the National Labor Relations Act.

Relevant provisions of the National Labor Relations

Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C.

151, et seq.), are set forth at Pet. 3. Section 8(a)(5) is

also relevant, and provides:

It shall be an unfair labor practice for an employer

to refuse to bargain collectively with the repre-

sentatives of his employees, subject to the provi-

sions of section 9(a).

STATEMENT

A. The Board’s Findings of Fact

On May 2, 1969, the Union * was certified by the Board

as the bargaining representative of the Company's

employees (A. 79-80; 106, 121; 67). The parties were

unable to reach a collective bargaining agreement, how-

ever, and as a result the employees struck on July 28,

1969 (A. 107, 121; 10, 51, 53-54). The strike ended on

January 10, 1970, when the employees voted to accept

the Company’s last offer (A. 108; 84). After being

advised of the vote, Company spokesman J. D. Me-

Laughlin informed the Union that he would “put to-

: International Molders and Allied Workers Union, Local 58,

AFL-CIO.

«4 ” refers to the appendix to the briefs in the court below.

3

gether the agreements and understandings reached

during the negotiations’’ and submit it to the Union

(A. 85-86; 121).

During the ensuing correspondence between the Com-

pany and Union it developed that there was a misun-

derstanding concerning the duration of the agreement.

The Union believed that the parties had agreed to a

one-year contract term, but the Company insisted that

they had agreed to a three-year term. Thereafter, on

Febrvary 12, with the duration issue still unse*tled,

McLaughlin mailed the proposed contract and a cover-

ing letter to the Union, stating in the letter that ““we

will be glad to meet with you and sign the enclosed

contract, or it can be handled by mail’’ (A. 121, 109;

89).

On April 11, the parties met again in an unsuccessful

attempt to resolve their differences over the contract

term (A. 121; 30). In a letter to the Union dated April

25, McLaughlin reiterated that the Company was not

interested in signing a one-year contract but hoped the

Union would “‘sign the three year agreement with us.”’

(A. 97-98; 121-122).

On May 14, the International Union sent a telegram

to McLaughlin stating that ‘‘on behalf of Local 358

[sie] [it] unconditionally accepts terms of contract

proposed hy the Company for a three year period com-

mencing immediately’? (A. 94; 110). On May 21,

McLaughlin replied that, since the Company’s “‘new

owners”’ never had an opportunity to review the agree-

ment, it was being sent to them for “‘review and ad-

vice’’ (A. 95; 122). In addition, the letter raised for

the first time the Company’s doubts as to the Union’s

4

majority status and questioned the propriety of enter.

ing into a contract with the Union (A. 95; 122).

On May 26, two weeks after the Union had notified

the Company of its unconditional acceptance of the

eontract, the Union sent a registered letter to McLaugh-

lin offering to meet with him to execute the agreement

(A. 96; 17; 110). The letter was returned a week

later, acceptance having been refused because there was

twenty cents postage due (A. 110-111; 17-18). One

week later, the same letter was sent to McLaughlin’s

office by regular mail in an unmarked envelope, with-

out a return address. McLaughlin did not receive this

letter. (A. 111; 18, 70.) *

B. The Decisions Below

The Board concluded that the Company violated

Sections 8(a) (5) and 8(a)(1) of the Act by refusing to

sign an agreement previously reached with the certified

representative of its employees (A. 123-124). The Board

found that, despite the Union’s unsuccessful effort to

make a formal request for signirz through the mail, “at

all times material the Respondent had been duly notified

of the Union’s insistence upon execution of the con-

tract’’ (A. 123). Accordingly, the Board ordered the

Company to execute, deliver, and give effect to the con-

tract between it and the Union (A. 124).

The court of appeals, in a per curiam decision, en-

forced the Board’s order. It stated ‘‘[w]e find ample

* The trial exeminer concluded that, while a contract had been

made on May 14, the Union had not ‘‘effectively requested [the

Company] to sign’’ (A. 114). Accordingly he found that the Com-

pany had not violated Sections 8(a)(5) or (1) of the Act.

support in the record for the conclusion that the em-

ployer refused to sign an agreement with the certified

bargaining representative of the employees although

agreement was reached as to the terms and the em-

ployer was requested to sign’’ (Pet. App. Al).

1. The record in this case does not present the first

question stated in the petition (Pet. 2)—whether ‘‘an

employer is bound to sign a labor agreement where a

good faith doubt exists concerning Union majority

representation before an agreement is reached and more

than one year has elapsed since certification.’’ For the

Board found, and the court of appeals sustained its

finding, that the Company did not challenge the Union’s

majority status until May 21, seven days after the

Union sent its telegram of acceptance and the contract

between the parties was made (A. 122). The Board

* The Company's contention (Pet. 7) that it notified the Union

on May 12 of its claim of loss of majority is apparently based on

reference to a May 12 letter contained in its letter of August 21

(A. 99). The Trial Examiner implicitly discredited that evidence in

finding that there was no communication between the parties from

April 21 to May 14 (A. 109-110). Moreover, even if timely, the

Company's claim of loss of majority was predicated solely upon the

amount of employee turnover. However, it is well settled that

‘*[o)}f itself turnover is no evidence of loss of majority status by the

Union.’’ National Labor Relations Board v. John 8. Swift Company,

302 F. 2d 342, 345 (C.A. 7); National Labor Relations Board v.

Prick Company, 423 F. 2d 1327, 1330-1332 (C.A. 3); National

Labor Relations Board v. Little Rock Downtowner, Inc., 414 F. 2d

1084, 1091 (C_A. 8) ; National Labor Relations Board v. Rish Equip-

ment Company, 407 F.2d 1098, 1100-1101 (C_A. 4) ; Celanese Corp.

of America, 95 NLRB 664, 673.

6

concluded that the Company’s May 21 letter asserted

‘‘nonmeritorious legal grounds for its refusal to sign”

(A. 123). Accordingly, the only issue actually presented

is whether the Board’s finding that the Company lacked

a good faith doubt regarding the Union’s majority

status is supported by substantial evidence. Such a

factual question does not warrant review by this Court.

Universal Camera Corp. v. National Labor Relations

Board, 340 U.S. 474, 491. In any event, the evidence

amply supports the Board’s finding (supra, pp. 2-4,

A. 122-123).°

2. Similarly, the second question raised in the peti-

tion is not presented by the record in this case (Pet. 3)

—whether ‘‘an employer violates the National Labor

Relations Act by failing to sign an agreement when no

demard is made on it for signature.’’ For the Board

found that ‘‘continuously since May 14, 1970, [the

Union] was insisting upon execution of the agreement

and that the Respondent, fully aware of the Union’s

position, was seeking its abrogation” (A. 123). The

court of appeals held that this finding was supported

by substantial evidence (Pet. App. Al). This factual

issue likewise does not warrant further review.

5 There is no substance to petitioner’s contention (Pet. 5-6) that

the court of appeals ignored this question. The court specifically

ruled that ‘‘[a]ll other contentions of the employer have been con-

sidered and are without merit’’ (Pet. App. Al).

7

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

Erwin N. GRIswo_p,

Solicitor General.

Perer G. NasH,

Gneral Counsel,

Patrick HARDIN,

Associate General Counsel,

Norton J. CoE,

Assistant General Counsel,

Haroitp J. ENGEL,

Attorney,

National Labor Relations Board.

Aveust 1972.

ve U.S. Government Printing Office: 1972—473-101/50