# Opposition Brief — NCR Employees' Independent Union v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1803%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1973 - **Citation:** 410 U.S. 966 ## Text F Yn the Supreme Court of the United States October TERM, 1972 No. 72-879 NCR Empioyees’ INDEPENDENT UNION, PETITIONER v. Nationa Lasor Revations Boarp 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. App. 18-61) is reported at 466 F. 2d 945. The Board’s deci- sion and order (Pet. App. 63-95) are reported at 190 NLRB No. 117. JURISDICTION The opinion of the court of appeals was filed on August 18, 1972; a petition for rehearing was denied on September 19, 1972 (Pet. App. 62); and the judg- ment of the court of appeals was entered on Septem- ber 26, 1972. The petition for a writ of certiorari was filed on December 15, 1972. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) 495-296—73 ORY NDR A ATPL sett ietabneeind 1. Whether substantial evidence supports the Board’s finding that the union used physical intimida- tion and threats of violence to prevent employees with- out union passes from working during a strike. 2. Whether the Board properly required the union to reimburse those employees who made payments to the union for picket lines passes, and to pay lost wages to those employees who refused to make such payments and were prevented from working during the strike. STATUTE INVOLVED The relevant provisions of the National Labor Rela- tions Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. 151, et seq.), are set forth at Pet. App. 96-98. STATEMENT A. THE BOARD’S FINDINGS OF FACT On November 18, 1968, when negotiations failed to produce a new contract, employees of National Cash Register’s Dayton, Ohio, industrial complex went on strike, causing a virtual shut down of operations (Pet. App. 67; A. 49a-50a).’ The next day, pursuant to as- surances previously given to representatives of the federal government, the Company and _ petitioner (“the Union”) met to arrange for employees in the Military Division, who were working on military de- fense projects, to continue work during the strike (Pet. App. 67-68; A. 150a-15la, 179a, 182a). It was *“A.” refers to the printed appendix used in the court below, a copy of which we are lodging with the Clerk of this Court. 3 agreed that the Military Division employees would be asked to obtain a pass from the union hall in order to facilitate their passage through the picket lines which the Union had set up at most entrances to the plants (Pet. App. 68: A. 145a, 151a). Company super- visory personnel then telephoned each employee in the Military Division and advised him of the arrangement (Pet. App. 68; A. 58a, 73a, 145a-146a, 15la-152a). When Military Division employees reported to the union hall that evening for their passes, they were told by Union representatives that, in order to obtain a pass, each employee had to sign a document in which he agreed to pay to the Union one-third of his gross daily wages during the strike (Pet. App. 68; A. 58a-60a, 94a-95a).* The decision that the Military Division employees would be required to contribute to the Union in order to receive a pass was made by the Union without the knowledge or consent of the Com- pany (Pet. App. 69; A. 145a, 146a, 151a, 168a). : The document stated (Pet. App. 68: A. 187a) : “In recognition of the fact that I am being permitted by the NCR-EIU to work on my job at NCR during the period of time that an authorized strike is taking place, and further recognizing that the Union's Executive Board has recommended that voluntary contributions be accepted from all Union Mem- bers who are being permitted to work during this period, I hereby freely consent to pay one-third (3314%) of my gross daily wages during this period, to the Union. In consideration of such contribution, it is my understanding that I am to be furnished authorization to cross the Union picket lines for the purpose of working at NCR during this period, and that I am obligated to obtain from the union a new work authorization on or prior to Monday of each week, for the duration of the strike.” Prayers EAT PIO ee lone fi he, SEL TFEL AISLING, YORE MAG AE REN I SINCERE EM RA ORES LF ick, Peat Wa 4 Employees who objected to the Union-imposed pass requirement were told that they had to sign “to get the pass and that they would not be able to cross the picket lines without a pass” (Pet. App. 70-71; A, 58a-60a, 65a). Thus, when employee George Springer, who was not a Union member, objected to signing the form, he was told by a Union agent dispensing the forms: “Well, the agreement between the Company and the Union is that you can go to work. But you are not going to work without this pass. And you won’t get the pass unless you sign this paper” (Pet, App. 70; A. 74a-75a). After Springer replied, “Well, all I was interested in was what did the Company want,” the Union agent, in the presence of other em- ployees seeking passes, stated: “Well, don’t worry about that. There are going to be some pretty big boys on that picket line” (Pet. App. 70; A. 75a, 61la-82a, 177a). The Company learned of the pass conditions from complaining employees. It told them that the Com- pany had neither known about nor agreed to the con- ditions, and that it was for each employee to decide whether he would sign the document and come to work (Pet. App. 72-73; A. 76a, 78a, 154a-156a). The strike was accompanied by mass picketing at the plant entrances. Cars of employees attempting to enter were blocked at the gates, and some cars were damaged in the resulting back-up (Pet. App. 73; A. 147a-148a, 152a, 157a-158a, 161a-163a). Employees attempting to cross the picket lines were stopped and checked for passes (Pet. App. 73; A. 161la-163a). 5 By November 22, the mass picketing had become so unruly that the Company feared for the safety of em- ployees attempting to enter the plant without passes (Pet. App. 73; A. 147a-148a, 152a-153a). It therefore informed the Military Division employees that they would not be permitted to work unless they obtained passes from the Union (Pet. App. 73; A. 79a-80a, 9la-92a, 99a-100a, 120a-121a, 124a). Employees who would not agree to the Union’s terms ceased work for the remainder of the strike (Pet. App. 73-74; A. 71a, Tia-80a, 86a-88a ).* B. THE DECISIONS BELOW The Board found that the Union violated Section 8(b)(1)(A) of the Act by threatening, and actually using, physical force to prevent employees from work- ing who did not obtain a Union pass (Pet. App. 76- 77, 80).‘ The Board stated (Pet. App. 76) : We do not here have before us a case in which the Union has merely imposed a fine or assessment equivalent to one-third of the wages earned by the Union member while working during the strike, which fine or assessment is 3On November 23, the Company obtained, in the state courts, a temporary restraining order limiting the number of pickets at each entrance, and forbidding intimidation and harassment of persons seeking to enter or leave the Company's premises (Pet. App. 74; A. 164a-165a, 210a-212a). The Union’s mass picketing activities continued despite the injunction (A. 165a- 166a). ‘The Board also found that the Company violated Section 8(a)(1) of the Act by acquiescing in the Union's pass require- ment and by refusing, after November 25, to allow its employees to work without a pass (Pet. App. 79-80). 6 to be enforced through court proceedings or b expulsion from membership until the fine jg paid. Indeed, we do not even have a fine or assessment confined to union members. The contribution sought by the Union was from union members and nonmembers alike. Proyj- sions for enforcing it were not by the normal means but rather by threats to prevent, and actual attempts physically to prevent, the em- ployees from working. * * * The Board ordered the Union and the Company, jointly and severally, to make whole for any loss of wages the employees who, as a result of the pass re- quirement, failed to work during the strike (Pet, App. 81). Further, the Board ordered the Union pri- marily, and the Company secondarily, to reimburse the employees for the sums of money collected by the Union as a condition of granting its pass (Pet. App. 81-82). The court of appeals, with minor modifications, sustained the Board’s findings and conclusions, and enforced its order (Pet. App. 18-61). ARGUMENT 1. The first issue raised in the petition (Pet. 2)— whether a union may issue to employees ‘picket line passes in exchange for contributions to the union, where there is no union sponsored program of collec- tion or enforcement by coercion or intimidation’— is not presented on this record. The court below ex- pressly stated: “We may assume, arguendo, that a union may inaugurate a voluntary contribution pro- gram and request members and non-members to pay 7 a portion of the wages they earn during a strike as a donation to the union’s strike effort” (Pet. App. 37). Here, however, the Board found, and the court agreed, that the Union had used physical force and other unacceptable means * to coerce cooperation with its pass system (Pet. App. 42). The only issue actually presented, therefore, is whether the Board’s factual finding is supported by substantial evidence. That evidentiary issue does not warrant review by this Court. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 491. In any event, as shown by the Statement and by the opinion of the court below (Pet. App. 40-42), there is ample support in the record for the Board’s finding that the Union used coercive means to enforce its pass system. 9. Similarly, petitioner’s attack on the Board’s re- imbursement order (Pet. 3, 12-16) is based on the premise that the employees “voluntarily” made con- tributions to the Union in return for the pass, and that employees without passes were prevented from working as a result of the Company’s “unilateral’’ action. The facts, however, as found by the Board and confirmed by the court below, are that the Union coerced the employees to make payments to it, and that “it was the union’s conduct in coercing the Mili- tary Division employees to obtain passes that caused ——— el > While a union may enforce a valid internal rule by such techniques as “fines, collected by threat of expulsion or judi- cial action,” it may not resort to “means unacceptable in them- selves, such as violence or employer discrimination.” Scofield v. National Labor Relations Board, 394 U.S. 423, 480-431. 8 the company to discriminate against them” (Pet. App. 49). In these circumstances, the Board properly re- quired the Union to reimburse the employees for the payments exacted from them, and for their lost wages, CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. Erwin N. Griswop, Solicitor General. PETER G. NasH, General Counsel, Patrick HARDIN, Associate General Counsel, Norton J. Comg, Assistant General Counsel, Linpa SHER, Attorney, National Labor Relations Board. FEBRUARY 1973. U.S. GOVERNMENT PRINTING OFFICE: 1973 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1803%3A2. Public record. Not legal advice.