# Amicus Curiae Brief — Sid Harvey, Inc. v. Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1451%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1041

## Text

nD
7g, IN THE OCT 20 1°7?
Supreme Court of the Cited Siates, oo. se.c1

OcrToBer TERM, 1972.

No. 72-556

SID HARVEY, INC. ano SID HARVEY BROOKLYN
CORP., Petitioners,
Us.

LOCAL 810, METALS, ALLOYS, HARDWARE FABRI-
CATORS AND WAREHOUSEMEN, INTERNATION-
AL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, ET AL., Respondents.

BRIEF AMICUS CURIAE ON BEHALF OF THE CHAM.

BER OF COMMERCE OF THE UNITED STATES

IN SUPPORT OF THE PETITION FOR
WRIT OF CERTIORARI

ALPERT HALES

MILTON A. SMITH,
General Counsel,
OTTO F. WENZLER,
Labor Relations Counsel,
Chamber of Commerce of the United States
of America,
1615 H Street, N. W..
Washington, D. C. 20006,
LAWRENCE M. COHEN,
S. RICHARD PINCUS,
Lederer, Fox and Grove,
111 West Washington Street,
Chicago, Illinois 60602.
GERARD C. SMETANA,
925 South Homan Avenue,
Chicago, Illinois 60607,
Attorneys for the Chamber of Commerce of
the United States of America
Of Counsel;
ALAN RAYWID,
Cole. Zyistra & Raywid,
2011 Eye Street. N. W..
Washington, 1D. C. 20006,

THE GUNTHORP-WARREN PRINTING COMPANY, CHICAGO

INDEX.

PAGE
Interest of the Amicus Curiae....................... 1
Reasons for Granting the Writ...................... 3
GentbasGa « cccccccecccccccccsccccccescoseccccscces 9

Tasie or Cases.
Bachman Machine Company v. N. L. R. B., 266 F. 2d 599
Bi Cin. TERED oc cc ccctecccccccccccccsccsccecseces 3
Carpet, Linoleum Layers’ Union No. 419 v. N. L. R. B.,
429 F. 2d 747 (D. C. Cir. 1970)... ............0005. 6
Carpet, Linoleam Layers’ Union No. 419 v. N. L. R. B.,
F.2d , 80 LRRM 3254 (D. C. Cir. 1972). .4,5,6
Douds v. Metropolitan Federation of Architects, 75 F.
Bape. GS GE. BD. Hh. FW. BBGED. .cccccccccccccsccccces 5
‘ibreboard Paper Products Corp. v. N. L. BR. B., 379
DO Oa ae 8
Haughton v. Woodworkers Local 5-40, 294 F. 2d 766
CRG, Bn 6.00.08 066ctconcnctecensccecesse<scs 5
Local 742, Carpenters v. N. L. R. B., 444 F. 2d 895
(D. C. Cir. 1971) cert. den., 404 U. S. 985 (1972)... .. 6
Les Angeles Newspaper Guild v. N. L. R. B., 443 F. 2d
1173 (9th Cir. 1971) cert. den., 404 U. S. 1018 (1972) 3,5
Miami Newspaper Pressmen’s Local No. 46 v.
X. L. R. B., 322 F. 2d 405 (D. C. Cir. 1963).......... 3
Milk Drivers Local 584 (Old Dutch Farms, Inc.), 146
NLRB 509 (1964) enf’d 341 F. 2d 29 (2d Cir. 1965).. 5
X. L. R. B. v. Business Machines Mechanics Local 459,
228 F. 2d 553 (2nd Cir. 1955), cert. den. 351 U. 8.

N. L. B. B. v. Carpenters Dist. Council, 184 F. 2d 6
(10th Cir. 1950), cert. den., 341 U. S. 947 (1951)..... 7

N. L. RB. B. v. Denver Building and Construction Trades
Council, 341 U. 8S. 675 (1951)... ......- 6-6 eee eee. 245

National Woodwork Manufacturers Assn. v. N. L. RB. B.,
S06 U. B. GIB (20GT)... 0. cc cccccccccccccccccccsess a8

Roy, J. G. & Sons Uo. v. N. L. R. B., 251 F. 2d 771 (ist
Cle, BBB) oc ccccccccccccccccccccccccccccccccccoes 3

Sheet Metal Workers Local 233 v. Atlas Sheet Metal
Co., 384 F. 2d 101 (Sth Cir. 1967) ........-- 66-600. 3

Teamsters Local 639 (Poole’s Warehousing, Inc.), 158

Teamsters’ Union v. Oliver, 358 U. 8S. 283 (1959)...... 8
Television and Radio Artists v. NLRB, 462 F. 2d 887

Truck Drivers Local 726 v. Empire State Express, Inc.,
293 F. 2d 414 (Sth Cir. 1961)...........-- 6-6. cee 5

Truck Drivers Local 107 (Sterling Wire Products Co.),
137 3. La. BR. BD. 29BD (IBGB).... 2. ccccccccccccccccc. 5

MisceLLas gous.
John M. Blair, Economic Concentration, Harcourt
Brace Jovanovich 1972, pp. 257, et seq. ...........- 6,7

Borus & Warshal, Neutrality and Secondary Boycotts:
An Economic Evaluation of a Legal Question, 17 Lab.

Dn J. (IDB) nc cccccccccccccccccccvccccccccccess 7
Burck, The Merger Movement Runs High, Fortune,
Fob. 1960, p. 79 ..... 2. cc ccc cccccccccccccccccccees 6

Federal Trade Commission Report, Large Mergers in
Manufacturing and Mining, 1948-1971, May 1972,
Bp. THB 20... ccccccccccccccccsccccccscccocosccs 6

ee ee eee eee

iii

Federal Trade Commission Report on Corporate Merg-
ers and Acquisitions, May 1955, at pp. 116, et seq. . ..
[I Legislative History of the Labor-Management Re-
lations Act, 1947, 1047-1048 (Comments of Senator
Murphy) and id. at 1106 (Comments of Senator Taft)
Vaughn, Franchising Today (Farnsworth Publishing
Be Bah TEED ccccccscsccccccccscogocccosccsocse

Supreme Court of the Gnited States

Octoser Term, 1972.

No. 72-556.

SID HARVEY, INC. axp SID HARVEY BROOKLYN

CORP.,
Petitioners,

vs.

LOCAL 810, METALS, ALLOYS, HARDWARE FABRI-
CATORS AND WAREHOUSEMEN, INTERNATION-
AL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF

AMERICA, eT a,
Respondents.

BRIEF AMICUS CURIAE ON BEHALF OF THE CHAM.
BER OF COMMERCE OF THE UNITED STATES
IN SUPPORT OF THE PETITION FOR
WRIT OF CERTIORARI*

INTEREST OF THE AMICUS CURIAE.

The Chamber of Commerce of the United States of
America (hereafter the **Chamber"’) files this brief amicus
curiae to present its views upon a case of great im-
portance in the administration of the National Labor Re-

This brief ix filed with the written consent of all parties
pursuant to Supreme Court Rule 42(1).

SOE ta None OOM ato

lations Act.’ The question raised in this case—whether
potential, as opposed to actire, common control is suff.
cient to destroy the Act's secondary boycott protections—
is a matter of vital concern to the Chamber.

The decision of the Court of Appeals in this case sig.
nificantly dilutes the secondary boycott safeguards afforded
by Section 8(b)(4) of the Act. First. the court below
not only rejected the active common management criterion
of neutrality that heretofore has been utilized by the Na.
tional Labor Relations Board and other courts of appeals,
but, in lieu thereof, resurrected a congressionally dis.
carded and unworkable ‘‘unity of interest’’ doctrine.
Second, the ramifications of this new and unwarranted ap-
proach are far-reaching. A vast array of businesses, like
the employers here, depend upon a variety of integrated
business relationships to effectively compete. The result
of sanctioning union pressures against related divisions
or subsidiaries of a corporation, or even its outside suppliers
or customers with whom it has substantial dealings, will
inevitably be a failure to shield ‘‘unoffending employers
and others from pressures in controversies not their own.”
N. L. R. B. v. Denrer Building and Construction Trades
Council, 341 U. S. 675, 692 (1951). Finally, the decision
below represents the most recent in a series of opinions
severely circumscribing the neutrality concept of Denver
Building Trades allegedly predicated upon this Court's
decision in National Woodwork Manufacturers’ Ass'n. v.
N. L. R. B.. 386 U. S. 612 (1967). The time is now ripe
for a needed reconciliation of Denrer Building Trades
and National Woodwork. This case is a uniquely appro-
priate vehicle for that purpose.

1. The Chamber ix a business federation with a membership of
over 3700 state and local chambers of commerce and trade a
sociations, and an underlying membership of more than five mil-
lion individual business men and business firms. It is the largest
association of business and professional organizations in the United
States.

3

As a prineipal spokesman for the American business
community, the Chamber believes that its views and ex-

ience may be of assistance to the Court. It is for this
weason that the Chamber respectfully submits this brief
amicus curiae.

REASONS FOR GRANTING THE WRIT.

1. Prior to the instant case, the Board and courts uni-
formly required that ‘‘actual common control of labor poli-
cies,” not merely the potential control implicit in common
ownership or economic interdependence, was required be- -
fore two employers could be deemed a single enterprise for
secondary boycott purposes.? Any broader rule would fail
to achieve the dual congressional objectives—to ‘‘confine
labor conflicts to the employer in whose labor relations the
conflict has arisen, and to wall off the pressures generated
by that conflict from unallied employers.’’ Miami News-
paper Pressmen's Local No, 46 v.N.L. R. B., 322 F. 2d 405,
310 (D. C. Cir. 1963).

The decision helow substitutes for a criterion of active
common management* an unpredictable ‘‘common sense”

2 J.G. Roy & Sons Co. v. N. L. R. B., 251 F. 2d 771, 773 (Ist
(ir. 1958). See also Los Angeles Newspaper Guild v. N. L. R. B.,
443 F. 24 1173 (9th Cir. 1971), cert. den. 404 U.S. 1018 (1972) ;
Television and Radio Artists v. N. L. R. B., 462 F. 2d 887 (D. C.
Cir. 1972) : Bachman Machine Company v. N. L. R. B., 266 F. 2a
599 (8th Cir. 1959) : Shect Mctal Workers Local 233 v. Atlas Sheet
Metal Co.. 384 F. 24 101 (5th Cir. 1967); Teamsters Local 639
(Poole’s Warehousing, Inc.), 158 NLRB 1281.

3. If the Court of Appeals here had applied an active common
management test, the result below would have been different. In
this ease. the picketed secondary employers (‘*Ine.”’ and the
three sales companies) exercised no actual control over the labor
policies of the primary employer (‘‘Supply ompany’’). The
Board's finding that ‘‘each corporate president’’ of the separate
corporations ‘‘was in sole charge of,”’ and ‘‘actually conduct [ed |
the day-to-day management of the corporation's business, inelud-

4

analysis of the ‘‘relationship between the two employers
who are being picketed.’’ App. B, p. 37a. Under this ap.
proach, the Court of Appeals, whenever there exists either
‘*centralized or overlapping’’ ownership or significant ‘ee.
nomic interdependence’’ between two employers, would
treat the concerns as a single employer for secondary boy.
cott purposes. This view of the law, in addition to differing
markedly from that followed by the Board and other courts,
is a revival of the common law ‘‘unity of interest’’ doctrine
which Congress rejected when it enacted Section 8(b)(4),
Indeed, that Section was specifically added to the Aet in
1947 to ‘‘reverse [the] trend’’ in which parties who
were found ‘‘to possess a ‘unity of interest’ with the disput-
ing employer’’ were embroiled in labor disputes in which
they were ‘‘not immediately involved.’”*

2. The decision below also cannot be reconciled with
Denver Building Trades. That case involved the question
of whether a general contractor and his subcontractors on
the same construction project should be treated as a single
unified enterprise for secondary boycott purposes based on
the close functional integration and economic interdepen-
dence inherent in their relationship. This Court resolved
that issue by finding such factors insufficient to defeat the
parties’ separate neutrality status or to ‘‘make the em-
ployees of one the employees of the other.’’ 341 U. S. at
690. Such ‘business relationships’’ are, as this Court

ing its relations with its sources of supplies, its customers, its
management of its personnel, and its labor relations’’, was not
disturbed by the Court of Appeals. App. A. p. 7a: App. B. p. 34a.
In fact, the picketed secondary companies were not involved in any
respect in the decision to discharge the Supply Company supervisor
—the incident which gave rise to the picketing. App. A, p. 3.

ae ee ieee debs

4. II Legislative History of the Labor-Management Relations
Act, 1947, at 1047-1048 (Comments of Senator Murphy). See also
id. at 1106 (Comments of Senator Taft) and Carpet, Linoleum Lay-
ers’ Union No. 419 v.N. L. R. B., ........ * eae , 80 LRRM 3254,
3256-7 (D. C. Cir. 1972).

EES SPL SEG BG PS EY Rk SRR OT HO a in ane pe St

5

observed, ‘‘too well established . . . to be overrridden with-
out clear language doing so.’’ Jd. at 690. The Denver Build-
ing Trades rule—that functional integration is insufficient
to involve separate employing entities in the disputes of
the other—has subsequently been applied to a variety of
interrelated’ business relationships of both a horizontal®
and vertical (‘‘straight line’’) nature.’

The critical inquiry in each case, as well as in those in-
stances involving the related ‘‘ally’* or ‘‘co-employer’”
concepts, has been consistent: that a labor union should be
entitled to bring pressure on only those persons who, in
addition to the offending employer, actually determine their
conditions of employment. Mere potential control has not,
prior to the present case, been sufficient to extend the area
of industrial conflict.

5. See, e.g., Haughton v. Woodworkers Local 5-40, 294 F. 2d
766, 767 (9th Cir. 1961) and Milk Drivers Local 584 (Old Dutch

Farms, Inc.) 146 N. L. R. B. 509 (1964), enf’d, 341 F. 2d 29
(2nd Cir. 1965).

6. See, e.g., Teamsters’ Local 639 (Poole’s Warehousing, Inc.),
and Los Angeles Newspaper Guild v. N. L. R. B., supra n. 2.

7. See, eg., Carpet, Linoleum Layers’ Union No. 419 v.
N.L. R. B., supra n. 4.

8. The ‘‘ally’’ doctrine applies where one employer agrees to
perform ‘‘struck work’’ for the primary employer. Since the result
of such activity is the same as if the primary employer had hired
strikebreakers, the employer performing such work, in effect.
stands in the shoes of the primary employer and is considered
to be ‘‘firmly allied’’ in the primary’s dispute. See, e.g., Douds v.
Metropolitan Federation of Architects, 75 F. Supp. 672, (S. D.
N. Y. 1948) and N. L. R. B. v. Business Machine Mechanics Local
459, 228 F. 2d 553 (2nd Cir. 1955), cert. den. 351 U. S. 962 (1956).

9. The ‘‘co-employer’’ doctrine applies where two or more cor-
porate entities have commonly controlled labor relations policies.
Again, since the ostensibly neutral employer actually has control
over the involved employees’ working conditions, he is, in effect.
an adjunct of the primary employer. See. e.g., Truck Drivers
Local 726 v. Empire State Express, Inc., 293 F. 2d 414, 423 (5th
Cir. 1961) and Truck Drivers Local 107 (Sterling Wire Products
Co.), 137 NLRB 1330 (1962).

6

3. The instant case is part of a recent effort to revive
the concept of ‘‘economic realism.’’ This trend, arising in q
multiplicity of contexts,’’ has caused a severe dislocation
in our national labor policy. Overlapping ownership" and
substantial business dealings between interrelated com.

10. See, eg., Carpet, Linoleum Layers’ Union No. 419 y,
N. L. R. B., 429 F. 2d 747 (D. C. Cir. 1970), a case relied on by
the decision below and subsequently revised (Carpet, Linoleum
Layers’ Union No. 419 v. N. L. R. B., supra n. 4), where the court
remanded for the Board’s consideration the neutrality status of
an alleged secondary retailer in light of its ‘*economiec interest’’ in
the outcome of a dispute involving employees of its independent,
functionally integrated installers; and Local 742, Carpenters vy.
N. L. R. B., 444 F. 2d 895 (D. C. Cir. 1971), cert. den. 404
U. S. 985 (1972), where the court’s remand to the Board con-
tained instructions to henceforth consider a boycotted employer,
notwithstanding his lack of control over the union's underlying
grievance. as an unprotected primary where he retains an ‘‘eco-
nomic interest ’’ in the subject of the dispute.

11. The consolidation of both related and unrelated business
enterprises through mergers or acquisitions has undoubtedly had
a greater impact in shaping our present-day modern industrial
structure than any other single factor. See J. Blair, Economic
Concentration (Harcourt Brace Jovanovich 1972) at 257 et seq.
Impelled by large scale marketing factors, including the need
for increased product diversification and sources of supply, the
trend towards greater consolidation has increased markedly in
the past deeade. Id., at 275 et seq. See also, Federal Trade Com-
mission Stat. Rep. No. 9, Large Mergers in Manufacturing and
Mining 1948-1971, May 1972, at 7-23. For example, the explosive
emergence of the corporate conglomerate, where the aquiring
company usually has very little in common with the acquired
companies, has resulted in a ten-fold increase in the number of
mergers from that extant in 1950. See Burek, The Merger Move-
ment Runs High, Fortune (Feb., 1969), 79.

7

panies’? and independent concerns* are commonplace in
American industry. The decision in this case threatens to
radically alter the secondary boycott protection afforded
employers in each of these situations as well as analogous
areas." The instant case, in sum, does not represent a
unique phenomena. The question presented is one which,

12. Common ownership of both horizontally and vertically
integrated companies is characteristic of major segments of our
economy including the steel, lumber, textile and retail food in-
dustries. Blair, supra n. 11, at 31 and 270 et seq. The his-
tory of mass production is replete with examples of concerns
whose economic survival was depeadent upon their ability to
vertically integrate, backwards or forwards. Federal Trade Com-
mission, Report on Corporate Mergers and Acquisitions, May, 1955,
at 116, et seg. For example, a significant segment of the lumber
industry consists of large paper manufacturers who are inte-
grated backwards into logging and lumbering and, in some cases,
forward into retailing or distribution. Blair, supra n. 11, at 271.
These ‘‘captive’’ sources of supply or distribution represent major
capital enterprises whose day-to-day operations and labor policies
are independently established and administered free from the
control of their parent corporation. Jbid.

13. Although the lower court’s opinion occurred in the con-
text of commonly owned entities, its ‘‘economic interdependence”’
rationale would apparently extend to business dealings between
separately owned but closely related independent contractors which
deal exclusively or primarily with a single business. A prime ex-
ample is the burgeoning franchise industry where independent
business concerns serve as the distributive or sales arm of existing
manufacturing or retail concerns. See Vaughn, Franchising Today,
(Farnsworth Publishing Co., Inc., 1969).

14. The ‘‘interest’’ between interrelated or functionally in-
tegrated concerns in each employer’s labor disputes is often no
different than that which exists between unionized employers ina
horizontally organized industry (e.g., the trucking industry)
where a union’s success at one company will inevitably be followed
by parallel demands on others. Similarly, a primary’s customers
or competitors will never be ‘‘wholly unconcerned”’ in the pri-
mary’s labor disputes because of their direct economic stake in
its outeome. See Borus & Warshal, Neutrality and Secondary
Boycotts: An Economic Evaluation of a Legal Question, 17 Lab.
L. J. 310 (1966). The courts have not, of course, removed the
Act’s secondary boycott protections in such relationships. See,
eg. N. L. R. B. v. Carpenters Dist. Council, 184 F. 2d 60 (10th
Cir. 1950) cert. den. 341 U. S. 947 (1951).

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as the petition correctly notes, is likely to recur in every
ease in which commonly owned companies perform com.
plimentary functions.

4. The present case also represents an improper and
far-reaching extension of National Woodwork. In that
case, a five to four majority of this Court legitimatized a
product boycott directed solely at an employing entity
which actually controlled the assignment of the disputed
work. The crux of the decision was the offending employer’s
statutory bargaining duty vis-a-vis his own employees; the
‘‘vortex ... of the labor dispute’’ embraced a contractual
restriction precluding the employer from subcontracting
work traditionally performed by his employees which did
not extend ‘‘to satisfy union objectives elsewhere.’’ 386
U. S. at 627, 644. Cf. Fibreboard Paper Prods. Corp. y.
N. L. R. B., 379 U. S. 203 (1964); Teamsters’ Union y.
Oliver, 358 U.S. 283 (1959).

A neutrality test of active common management com-
ports with National Woodwork by confining union pressure
to the employer who actually controls the labor policies
giving rise to the dispute. The decision below, on the other
hand, extends the ‘‘vortex’’ of the dispute to entities else-
where who have no contractual relationship with the in-
volved employees and who did not make the offending
managerial decision. The effect is to severely restrict
management’s contractual freedom. Such a result, coupled
with the other significant ramifications of the instant case
noted above, warrants review by this Court.

CONCLUSION.

For the foregoing reasons, as well as for the reasons
set forth by the Petitioner, the petition for writ of certiorari
should be granted.

Respectfully submitted,

MILTON SMITH,
General Counsel,

oO. F. WENZLER,
Labor Relations Counsel,
Chamber of Commerce of the United States
of America,
1615 H Street, N. W.,
Washington, D. C. 20006,

LAWRENCE M. COHEN,
S. RICHARD PINCUS,
Lederer, Fox and Grove,
111 West Washington Street,
Chicago, Ilinois 60602,

GERARD C. SMETANA,
925 South Homan Avenue,
Chicago, Illinois 60607,
Attorneys for The Chamber of Commerce oj
the United States of America.

Of Counsel:
ALAN RAYWID,
Cole, Zylstra & Raywid,
2011 Eye Street, N. W.,
Washington, D. C. 20006.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1451%3A2. Public record. Not legal advice.