Opposition Brief — Local 399, International Brotherhood of Electrical Workers v. National Labor Relations Board

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IN THE

Supreme Court of the Cnited States

OCTOBER TERM, 1973.

No. 73-2032

LOCAL 399, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD anp ILLINOIS

BELL TELEPHONE COMPANY,

Respondents.

BRIEF OF ILLINOIS BELL TELEPHONE COMPANY IN

OPPOSITION TO THE PETITION FOR A

WRIT OF CERTIORARI.

GoRDON W. WINKS,

225 West Randolph Street,

Room 27B,

Chicago, Illinois 60606,

EpWarRpD W. BERGMANN,

Attorneys for Illinois Bell

Telephone Company.

DONALD H. SHARP,

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON,

111 West Jackson, Suite 2100,

Chicago, Illinois 60604,

Of Counsel.

Gunthorp-Warren Printing Company, Chicago @ 346-1717

IN THE

Supreme Court of the United States

OcTOBER TERM, 1973.

No. 73-2032.

LOCAL 399, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD anp 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 not yet reported and

is Appendix A to the petition. The decision of the National

Labor Relations Board is reported at 200 NLRB No. 159 (Pet.

App. C).

JURISDICTION.

The jurisdictional requisites are adequately set forth in the

petition.

QUESTION PRESENTED.

Whether the Board and the Court of Appeals abused their

discretion in deciding that the Union’s threats and its attempt to

2

cause the discharge of one employee who had not paid union

dues violated the National Labor Relations Act (Section

8(b)(2) and 8(b)(1)(A)). That statute is quoted on page 4

of the petition.

STATEMENT OF THE CASE.

In March, 1968, Robert Galka left the Union and the bar-

gaining unit to become a foreman. In February, 1969, he

returned to the bargaining unit but he did not rejoin the Union

until December, 1970, when he did so “under protest.” Between

June and December, 1970, the Union repeatedly threatened

Galka and finally coerced him into joining. The Administrative

Law Judge, the panel of the Labor Board (consisting of Chair-

man Miller and Members Jenkins and Penello), and Circuit

Judges Kiley, Cummings and Sprecher all held that the threats

and the coercion violated the Act. All of them found that the

Union was not excused by the contract between the Union and

the Company, or by any provision of the Union’s internal docu-

ments.

Illinois Bell was made a party to the circuit court proceeding

by an order of that court dated April 20, 1973, and is shown as

such in the caption of that court’s opinion (Pet. App. A). It is

therefore 4 party in this Court under Rule 21, even though it is

otherwise ignored in the petition.

ARGUMENT.

The facts of this case are clear, but the situation occurs very

infrequently. Pages 8 and 18 of the petition unfairly accuse the

Board of an “attempt to revive” a 1948 decision (the /darado

case in 77 NLRB) after a “retreat” which allowed it to be “dor-

mant for many years.” But there is nothing to show that the

Board ever followed any different rule in the interim. A much

more rational interpretation of this scanty history is that the

Board simply had no need to apply the rule “for many years.”

3

There is no substantial claim of any conflict of decisions, and

the opinions below are plainly correct. The petition relies on

NLRB Vv. Industrial Towel Service, 473 F. 24 1258 (C. A. 6,

1973). But that case involved an absence caused by illness with

different facts and documents which convinced the Sixth Circuit

that the employee bad never severed her connection with the

bargaining unit. There is no way of knowing how the Sixth

Circuit would have decided this case, particularly since it never

even mentioned the Jdarado case, which was relied on by the

Board and the Seventh Circuit in this case.

The relief ordered by the Board was very minor, and the case

simply does not deserve the time of this Court. Universal

Camera Corp. v. NLRB, 340 U. S. 474, 491 (1951); NLRB

v. Walton Mfg. Co., 369 U. S. 404, 408 (1962).

As the petition notes, the Seventh Circuit originally issued its

order in this case under its Rule 28, which meant that it would

not even be published. Pet. Apps. B, F. For reasons not speci-

fied, the court later granted the motion of the Deputy Associate

General Counsel for the Board asking that the opinion recording

his victory be published. But the mere fact that the opinion will

be published by the Court of Appeals does not raise this trifling

controversy to the level required for any action by this Court.

The petition should be denied.

Respectfully submitted,

GorpDon W. WINKs,

225 West Randolph Street,

Room 27B,

Chicago, Illinois 60606,

Epwarp W. BERGMANN,

Attorneys for Illinois Bell

DONALD H. SHARP, Telephone Company.

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON,

111 West Jackson, Suite 2100,

Chicago, Illinois 60604,

Of Counsel.