Answer Brief — National Labor Relations Board v. MacKay Radio & Telegraph Co.

October Term, 1937 .

S2Ne 06.

‘ .

- -

- Nationa Lasor RELATIONS Boarp,

$ +

*

‘ .

Kay Rapio & TELEGRAPH CoMPANY,

64,

~ _-CERTIORARL _

W. O'Metveny,

Watrer K. Tutuer, ©

“A x | )

Pe

‘light of the Jones & Laughlin case...............

.

PAGE

RNID, sicscinconeininsersnsenncerennnorneninienmeniiciesvinsiseerstmnmotavoninmniicnseedicimaesiinies 3

Respondent’s contentions...................... shecdeleaidesesideitnachseasoabumenaeecaea 4

*

I,

This court has no jurisdiction to grant a writ of certiorari as re-

Ie Fae Se I I sai ccsisscceesintirerccveecaenepeieosnbinaieniice 3

A. The Circuit Court of Appeals was without jurisdiction

under the National Labor Relations Act to grant a re- |

hearing, therefore, the judgment of January 11, 1937, was

the final judgment of the court below, and this petition for

certiorari was filed too late........sccccesssseseeeeeee eitiiestiidisinas 6

B. The court below was without jurisdiction under-its own .

rules to grant a rehearing in this proceeding. .....................--- 10

II.

The decision of the court below is not in conflict with any other

‘decision either of this court or of any Circuit Court of Appeals 12

A. Since each judge rendered a separate opinion, the decision

‘of the court established only the rights of the parties with-

out creating any precedent...........cccssesssee cocsssssssseeccecesseeeeeeees 12

'B. The decisions in the Jeffery, Bell and Carlisle cases are not .

contrary to the judgment of the court below that enforce- ©

ment of the order be denied or to the opinions of the

. ° . -® °

pf Rn Seen painter pervect 13°

C. The judgment of the court below is not erroneous in the re

18

anf, 3

Toe EE kg

, ie

et eed

rr

ii.

+ PAGE

-III. ; | ig

The judgment of the court below was not erroneous in the light

ee i cteecsicrtnrnnns oo sent SRN Aes 19

- A. The National Labor Relations Board had no jurisdiction

. under the act to enter its order...................... = 19

B. The Board’s order was improvidently madé and enforce-

¢nent was properly denied because the amended complaint

failed to allege a jurisdictional requirement, to-wit, that the

men named in the complaint were employees as defined

in the act ' - ‘ 23

C. The evidence does not support the Board’s order because |

it fails.to show that the men named in the amended com-

plaint were employees as defined in the dct......................- “24

D. The decision of the court below was not erroneous in

denying enforcement of the Board’s order in toto................ 26

& , IV.

| The record is inadequate to present to this court any question of

ee ne 27

7 7

V. Ae stad

Conclusion © : 7 cribaiadieiaedcnae 28

iti.

TABLE OF AUTHORITIES CITED.

CASEs. ; | PAGE

Arkansas Wholesale Grocers Assn. ¥. Federal. Trade Comm.,

1s #. (of) 0... fais tiinteaneveuatnne Duane? scan ae

_ Baltimore and Ohio Railroad ‘Comet v. United” States, 293

=U S. 4... : soniuanneeidiecieddamaaiemiactanmatéh 22

Camp v. Gress, 250 U. S. 308...:.---.eccoscsseseseee ave ee ee . 8

Chamber of Commerce v. Federal Trade Comm., 280 F. 47........ 8

Dollar Sav. Bank v. United States, 19 Wall. 227.........0...000.22...-20-- 8 |

Donnelly Garment Co. .v. International Ladies Garment Workers

aa COG, Wiig Be ag a a rscisscectecreperttceeeetttesernetens 22

Durant v. The Essex Co., 7 Wall. 107....css:sccoosessslcsccsssesesssceeee 13

Etting v. The Bank of the United States, 11 Wheat. 59................ 13

Federal Trade Comm. v. A. McLean & Son, 84 F. (2d) 910.... 25

Federal Trade Comm. v. Balme, 23 F. (2d) 618.........-csosssccssesseens 7

Federal Trade Comm. v. Curtis Co., 260 U. S. 568.ccsscsscesseee 25

‘Federal Trade Comm. v:. Gratz, 253 U. S. 42 ).......cccccococecsccoccevee 24

Heald. v. Dist. of Columbia, 254 U. S. 20..ccsecssssssscetseetneeeeee 8

Hertz. v. Woodman, 218 U. S. 205.......cssccsssssssssesesessssssseeee pace ae

Hills Bros. v. Federal Trade Comm., 9 F. (2d) oak ssiliseces

International Shoe Co. v. Federal Trade Comm., 280 U. S. 291 25

Jeffery-De Witt Insulator Co.: v. National Labor Relations ©

Deel OF OA Ah ee 13, 14, 15

Jones & Laughlin case, 301 U.S. 1, 47...-.--scoccessccnvosenersesesshusesseucess 18

KVOS v. Associated Press, 299 U. S. 269........cscccscescessseseceeeee 15, 17

Luco v. De Toro, 88 Cal. 26.... ea aie ocaatt EE LT Te SIAR 13

Morse v. United States, 270 U. S. 15 deccccccccccccccsscsccscsscscssscessssssesee 10.

National Labor Relations Board v. Bell Oil & Gas Co., 91 F.

as tm rc ree 13, 15, 16

National Labor Relations Board v. Carlisle Lumber Co.....13, 16, 17

State v. Daues, 323°Mo. 388, 19 S: W. (2d) 700..2.......-e--sssoeseeeseees 13

LSpegpee* tas Wie Lee Kise - Rea pe

iv.

PAGE

Southern Power Co. v. North Carolina Public Service Co., 263

Ty Be TI rrrcecvemreesecsnernesenore dee-tecsnovrenepeteliiesieiieebesieteenhenensenunfesin 27

Toledo Scale Co. v. Computing Stale Co., 261 U. S. 399......0...... ‘5

United States v. A. Bentley & Sons Co., 293, F. 229...-cccc.-- 9, 11

Webster v. Fall, 266 U. S. 507............. potntiieen i tect [a a0% ae 15

Whiting v. Town of West Point, 88 Va. 905.....0.....22).ccceccceececeeeeeee 13

' Williams v. N. Ya«P. & N. R. Co., re ee ee icetscrcemstbeccsvaceien 13

Zimmern v. United States, 80 F. (24) 993 ..eccccccccssecssssesceseeesee 11

STATUTES AND GENERAL ORDERS.

- Decisions and Orders of National Labor Relations Board, Vol.

Lh ea ctiaectcsicenalegtomisaincnanciapitionminicanine 14

Af Decisions and. Orders of National Labor Relations Board, Vol.

Dy Do © CIB icaneenrovovcnenvocnivvsornvensoneceenvenveaonusnesansatcotseotsrrewes Bue et Be tna 17

Decisions and Orders of National Labor Relations Board, Vol.

2, p. 577. iidieclaiincanednnGlsctinsntonss ee

_ Federal Trade Commission Act, 15 U. S. C. 45.............. pevisieontbn 7

‘National Labor Relations Act, Sec. 2(3)*-scvccvccscvseeetnnsesnenee 19°

‘ ‘National Labor Relations Act, Sec. 2(9) ....secscccccss-sssssssssssseeeee 20

National Labor Relations Act, | | en pewietain n 23

National.Labor Relations Act, Sec. 10(c) -2.0..2..0.2020ccecceceeeeeees 14, 19

National Labor Relations Act, Sec. 10(€) scccccsssccseoo- a

National Labor Relations ‘Act, Sec. 10(i) .......... as sadiaiedihiesscmmiiteen 9

: Prentice-Hall Lahor Service, Sec. 18,211 and 18,230............... <r 22

United States Code, Title 28, Secs. 347 and 350....2..0.0.....0cceecee-- 5

Text Booxs AND ENcycLopEpias. ;

49. Corpus Juris 558........... pieuiiaahoreal = 2, eterna enae ar 23

__. Webster’s New International en , NAN RE eM Mn 20

“ers

IN THE ©

SUPREME COURT

OF THE

UNITED STATES.

October Term, 1937

No. 706.

. NATIONAL LABOR RELATIONS Boarp,

Petitioner,

US.

Mackay Rapio & TELEGRAPH COMPANY, ;

Respondent.

~ ANSWER TO PETITION FOR A WRIT OF

CERTIORARI.

STATEMENT. |

“The judgment of the court below was rendered and en-

tered January II, 1937. [R. 104.]

_ That judgment, to-wit: “The petition * * * of the

* * * Board * * *. is denied,” was final and self- -

executing, leaving nothing further to be done.

Assuming that the court was empowered under the con-

trolliig statute to enteft in a petition for rehearing there-

after, no such petition was filed or presented within the

ak ad period limited by its Rules of Court.

.

? 4

1. There -was filed within said thirty:day® period. a pitition for leave |

to adduce additional evidence and fora rehearing in the event such addi-

tional evidence should be adduced and new findings or a modified order

made by the Board upon the basis thereof. [R. 105-107.) This, ob-

viously, was not a petition for rehearing, and it was not granted by the

court below.

ewes

A motion for leave to file a proposed “supplement” to

said petition was filed May 10, 1937 (more than three

months after .the judgment had become final.) [R. 108. ]

This motion was not granted. 7

An order purportuig to grant a petition for rehearing

was entered May 17, 1937. [R. 112.]

A purported judgment that the Petition of the Board

be denied was rendered and entered October 19, 1937.

[R. 124.]

The petition for. certiorari was filed January 15, 1938.

RESPONDENT’S CONTENTIONS.

Respondent’s contentions in opposition to the petition

for certiorari may be outlined as follows:

1. That the order of the court below, purporting to

grant a rehearing, was void for lack of jurisdiction; that

‘the judgment entered January 11, 1937, was the final judg-

ment herein; that the petition for certiorari, filed more °

than eleven months thereafter, is too late and should be

denied for lack of jurisdiction.

z.. That the judgment of the court below does not con-

flict with any other.decision, for the reason that nothing

was decided by the court, except that the Board’s petition

for enforcement should be denied.

3. That there is no error in‘ the judgment of the court

below.

4. That this cause is not a suitable one for review by

this Court, because of the grave deficiencies in the record,

as to the pleadings, the findings and the evidence.

adliaes

I.

_ This Court Has No Jurisdiction to Grant a Writ of

Certiorari as Requested in the Petition Herein.

The jurisdiction of this Court to review decisions of

Circuit Courts of Appeals is defined by Sections 347 and

350 of Title 28 of the U. S..Code. Section 350 provides

that no writ of certiorari “to bring any judgment or de-

cree before the Supreme Court for review shall be allowed

or entered unless application therefor be duly made within

three months after the entry of such judgment’ or decree.

: ”” This limitation is jurisdictional. Toledo Scale

Co. v. Computing Scale Co., 261 U.S. 399, 418.

The original judgment of the court below denying the

petition of the National Labor Relations Board for en-

forcement of its order herein was filed and entered Janu- |

ary 11, 1937. However, petitioner does not seek a review

of this judgment, but of a “judgment” entered, after a

so-called rehearing, on October 19, 1937. [R. 124, P.

2.] Unless the judgment of October 19, 1937, was

entered withifi the proper exercise of the jurisdiction of

the said Circuit Court of Appeals it is a nullity, with the

result that the judgment of January 11, 1937, was the final

judgment ‘herein. It follows that this petition for certiorari

was filed more than nine months too late. It is the con-

tention of this respondent that the “rehearing” in the court

below was held after the jurisdiction of that court had

been exhausted both under its own rules and under the

provisions of the National Labor Relations Act. In ac-

cordance with this contention respondent duly caused its

exceptions to be noted to the order entered herein by the

lower court on May 17, 1937, granting the petition for

rehearing. [R. 112.] |

ce has, A Pee or

A. . THe Circuit Court oF APPEALS Was WITHOUT

JuRIsDICTION UNDER THE NATIONAL Lasor RELA-

tions Act TO GRANT A REHEARING, THEREFORE, THE

JUDGMENT oF JANUARY 11, 1937, Was THE FINAL

JUDGMENT OF THE COURT BELow, AND THIS PetI-

TION FOR CERTIORARI WAS FILED Too LATE. .

The jurisdiction of the Circuit Court of Appeals to re-

view decisions and orders of the National Labor Relations

Board is conferred by Section 10(e) of the National Labor

Relations Act. . In proceeding under this section the Cir-

cuit Court of Appeals was not exercising its general juris-

diction as an appellate court but was functioning as a

_ special statutory court; not as a court of appeal but as a

court of the first instance. It is, in fact, a newly created

tribunal of limited jurisdiction which never existed prior

to the enactment of the National Labor Relations Act. As

such, it possesses such powers, duties and jurisdiction as:

are conferred upon it by that Act and no more.

The Court’s powers under the Act are stated in Section

10(e) thereof, as follows:

ee such. temporary relief or re-

straining order as it deems just and proper, and to

make and enter ‘upon the pleadings, testimony and

proceedings set forth in such transcript a decree en-

forcing, modifying, and enforcing as so modified, or

setting aside in whole or in. part the order’ of the —

Board.” -

pee. en

In addition to the foregoing, the Court, upon a proper and

seasonable application for leave to adduce additional evi-

dence

‘“* * + may order such additional evidence to be

taken before the Board * * *.”

The foregoing comprise all of the powers expressly

granted to the court in this Act, and under the rule, ex-

pressio unius exclusto alterius, no additional-powers can be

implied.

These provisions of the National Labor Relations Act ©

were copied, substantially verbatim, from the correspond-

ing provisions of the Federal Trade Commission Act, 15

8 ae Prior to their adoption in the instant Act

it had been held that a circuit court of appeals when func-

tioning thereunder possesses no general jurisdiction or |

“inherent” or implied powers. In Federal Trade Comm.

v. Balme, supra, 23 F. (2d) at 618, the court said:

> “The Federal Trade Commission Act confers

special statutory jurisdiction, and the extent of such

jurisdiction and the conditions of its exercise over

- subjects or persons must necessarily depend upon the

terms in which the jurisdiction is thus conferred. It

does not depend upon the rank ‘of the court upon

which it is conferred. . It must be strictly pursued

because the court does possess jurisdiction over other

subjects or persons more extended and general.”

od

2 — ioe

In Chamber of Commerce v. Federal Trade Comm.,

supra, 280 F. at 47, the court said:

“This act creates powers not otherwise conferred

upon Circuit Courts of Appeals, and such courts are

limited strictly to the powers thus specified.”

It is a settled rule of statutory construction that when

a statute which has been judicially: construed is reenacted

in the same or substantially the same terms, the Congress

is presumed to be familiar with that construction and ‘to

have adopted it as part of the law, unless a different con-

struction is expressly required. Dollar Sav. Bank v.

United States, 19 Wall. 227, 237; Camp v. Gress, 250

U. S. 308, 315, 316; Heald v. Dist. of Columbia,.254 U. S.

20, 22, 23. .

The application of this rule to the instant problem con-

strains the conclusion that Congress, in enacting the Na-

tional Labor Relations Act in the light of the construc-

tion theretofore placed by the courts upon the Federal

Trade Commission Act, intended to grant to the courts

the several powers enumerated therein and none other. It

follows that when the court herein -had rendered its self-

executing judgment denying the Board’s petition, and had

caused the same to be entered without reservation,. it had

no power thereafter to entertain or to grant a petition for

rehearing. It is of course conceded that if the court had

entered a decree for the enforcement of the Board’s order _

by injunction, it would have retained jurisdiction so long,

as such injunction remained in force. . But that is not this

case.

—>—

Not only does this Act omit (ex industria as we think).

to confer power upon the court to grant a rehearing, but

the clear implication of its provisions is that the court

shall not possess that power. It provides, Section 10(e),

that the

‘ok -* * judgment and decree shall be final, except

that the same shall be subject to review * * * by

the Supreme Court of the United States * * * as

provided in sections 239 and 240 of the Judicial Code

as amended (U. S. C., Title 28, secs. 346 and 347).”

This is tantamount to declaring that there shall be. no

review’ of the judgment except by the Supreme Court.

This means that there shall be no rehearing by the court

below, because a rehearing is a review of thé case upon

the same record by the same court. United States v. A.

Bentley & Sons Co., 293 F. 229, 237.

_ Another circumstance which tends to confirm the con-

clusion that a rehearing after final judgment is not au-

thorized under this Act is the provision in Séction 10(i)

thereof, that

“Petitions filed under this Act shall be heard ex-

peditiously, and if possible within ten days after they

have been docketed.”

Petitions for rehearing are always dilatory in effect, re-

gardless of their intent. The proceedings incident to the

purported rehearing herein caused a delay of more than .

nine months from the entry of the final judgment to the

re-entry of the same judgment.

It is submitted that the judgment entered ‘January 11,

1937, was and is the final judgment herein -and that all -

proceedings of the Circuit Court of Appeals, subsequent

thereto, were coram non judice and of no effect.

—

B. THe Court BeLow Was WITHOUT JURISDICTION

Unper Its Own RULES TO GRANT A REHEARING IN

THIS PROCEEDING.

The same result is reached even if it be ‘assumed

(though not conceded) that the court, while functioning

as a special nist prius court pursuant to this Act, possesses

all.of the powers which inhere in it as a court of general

jurisdiction when functioning as an appellate court. This

_ is because of the fact that no petition for rehearing was

presented to it within the thirty-day period limited by its

Rules of Court,” which in this connection have the force

of law. Morse v. United States, 270 U.S. 151. Thus,

even upon the assumption of géneral jurisdiction and “‘in-

herent powers,” the court’s jurisdiction of this proceeding

terminated February 11, 1937, and it had no power there-

after to recall or reconsider its judgment.

There was filed on February 9, 1937, within said thirty-

day period, a document entitled “Petition of National

Labor Relations Board for Leave to Adduce Additional

Evidence and for Rehearing; and Notice of Motion.” [R.

105-107.] An examination thereof discloses indubitably .

that this was not a petition for rehearing. It was a peti-

‘tion for leave to adduce additional evidence (which peti-

tion was not granted), and for a reconsideration of the

2. Rule 29 of the court below provides: “A petition for rehearing

may bé presented within 30 days after. judgment.” — ;

es

case only in the event that such additional evidence should

be adduced. .The prayer, in this behalf, was for “* * *

a rehearing in this cause in the event the Board, * * +

makes new findings, or thakes recommendations for the

modification of its order, by reason or upon the basis of

- the ‘additional evidence so adduced.” (Italics supplied. )

This was not a petition for rehearing, either in form or

in substance. “A rehearing is simply a new hearing and a

new consideration of the case on the same record.” Umited

States v. A. Bentley & Sons C 0., 293 F, 229, 237. A peti-

tion; though entitled “petition for rehearing,” which i is not

this, in substance, does not operate to toll the time for

ny

taking an appeal. Zijmmern v. United States, 80 F. (2d)

993, 994. The order purporting to grant a rehearing was

made May 10, 1937, more than.three months after the

final judgment. Assuming, but not conceding, the power

of the court to grant a rehearing upon its own motion, we

submit that it could not do this, in any view, after the

time for review upon certiorari had expired.

If. either of the foregoing contentions is sound, it fol-

_lows that the judgment entered January 11, 1937, was and

- is the final judgment in said proceeding; that the proceed- —

ings thereafter taken therein, including the purported de-

cision, of October 19, 1937 (which did not purport to

change in any respect the judgment of January 11, 1937),

were coram non judice and an utter nullity; with the result

that this. petition for certiorari, which was filed more than

ten rhonths after the entry of the final judgment, is too late

and should be denied for want of jurisdiction. °

}

|

i |

}

i

f

|

A.

t

4

eo

II.

The Decision of the Court Below Is Not in Conflict

With Any Other Decision Either of This Court

or of Any Circuit Court of Appeals.

A. Since Eacu JupGeE RENDERED A SEPARATE. OPINION,

THE DECISION OF THE CourT EsTABLISHED ONLY

THE RIGHTS OF THE PARTIES WITHOUT CREATING

ANY PRECEDENT.

The principal ground alleged for granting certiorari

herein is the assertion that the décision below conflicts with

other decisions in the. Fourth and Fifth Circuits and with

a later decision in the Ninth Circuit. It is the position of |

the respondent that there is not and cannot be any. such

conflict, because of the fact that the court below did not

decide any point of law: Nothing was decided below by

the court except that the Board’s petition should be denied.

As pointed out by petitioner (Petn. 7-9), each of the three

judges filed a separate opinion and neither of them con-

curred in anything said by either of the others. The only

, conclusion concurred in by a majority of the court. was

that the Board’s petition should be denied.*

It is settled law that, in a court composed of several

judges, an opinion not.concurred in by a majority thereof

is not the opinion of the court; does not determine any

3. It is respondent’s contention that the decision of January 11, 1937,

was the final judgment and that the subsequent proceedings were void -

for lack of jurisdiction. What is: here said, however, applies with equal

force to the decision and judgment of January 11, 1937, and to the pur-

ported decision and judgment of October 19, 1937. The two “decisions” —

are identical and no change was made in the’ respective opinions that is

material in this connection,

—

question of law; creates no precedent; and has no standing

-in the law of stare decisis. Luco v. De Toro, 88 Cal. 20,

28; State v. Daues, 323 Mo. 388; 19S. W. (2d) 700, 707

Whiting v. Town of West Point, 88 Va. 905, 910. In the

application of this principle, a judgment which is affirmed

upon appeal by an efually divided court concludes the

\ parties but cannot settle any principle of law. Etting v.

~ The Bank of the United States, 11 Wheat. 59, 78; Durant

v. The Essex Co., 7 Wall. 107, 113; Hertz v. Woodman,

218 U. S. 205, 214; Willams v. N. Y. P. & N. R. Co, 11

F. (2d) 363, 366. The court below has since expressly

recognized and declared, in effect, that its decision in the

instant case created no precedent’ Manifestly, if it created ;

no precedent, it could not create a conflict.

ie.

B. THE Dacisious IN THE JEFFERY,” BELL* AND (Care

LISLE’ Cases ‘ARE Not ConTRARY TO THE JupGMENT

OF THE CourT BELOw THAT ENFORCEMENT OF THE

Orver BE DENIED OR TO THE OPINIONS OF THE

JupGes RENDERING IT.

None of these three decisions is in conflict with the

| judgment that under the-specific pleadings, evidence and

findings involved in the case at bar, the Board was not

entitled to an order of enforcement. None is~in conflict

’ with Judge Mathews’ view that there was no allegation in

4. Inthe Carlisle Lumber Co. case, see Petn. 13.

‘5. Jeffery-De Witt Insulator Co. v. N. L. R. Bs 91 F. (2d) 134.

6. N.L. R. B. v. Bell Oil & Gas Co., 91 F. (2d) 509. |

7. N.L. R. B. v. Carlisle Lumber Co. (P. 13.)

illite

the amended complaint, no evidence and no finding that

the men named in the complaint were employees, as that A

word is defined in the Act. None of the three decisions .

_ above referred to considered the meaning of the words.

“reinstatement of employees’® in’ the light of the Fifth

Amendment and cheretiee ies could not be either con-

trary to or in accord with Judge Wilbur’s opinion.

Each is distinguishable from the case at bar for numer-

ous reasons. Tn the Jeffery case, the Board: made findings

of. all of: the necessary jurisdictional facts which it failed

f to find herein. It found that the employer was engaged

| = in a business affecting interstate commerce and that the

men involved were employees, as defined in the Act, in .

an that they had ceased work because of a dispute which had

‘3 "arisen over their insistance upon and the employet’s refusal

to accede toa contract with respect to seniority, union shop

and check-off.’ The case at bar is distinguishable because —

here the Ward failed to find that the men were employees,

as defined by the Act, and failed to, find facts from which

such fact could be inferred.” Another difference is: that

in the Jeffery case, the unfair labor practice in question

- was not the refusal to hire strikers; it was the refusal of

8. National Labor Relations Act, Sec. 10(c).

9. Decisions and Orders of National Labor Relations Baard, Vol. 1 page

618, at page 623.

- 10.. For a full discussion of this deficiency in the Gudings see Point

III-A, at pages 19 to 22. - :

a

the employer to negotiate with the union during the strike,

and before the men sought re-employment. The meaning:

of the words “reinstatement of employees” and the effect

of the Fifth Amendment weré not argued i in the briefs nor

ruled upon. In fact the court, after stating the several

points urged by the ‘émployer (none of which is ; involved

here) stated:

“Other contentions going to the constitutionality of

the Act have been virtually abandoned * *° *.” .

In KVOS v. Associated Press, 299 U. S. 269, 279, this

court quoted from Webster v. Fall, 266 U.S. 507, as fol-

lows: | .

“Questions w which may lurk in the record, neither

brought to the attention of the court nor ruled upon;

are not to be considered as having been so decided as

to constitute precedents;”

Under these circumstances, the Jeffery case does not de-

termine anything contrary to the judgment of the court

below or to the reasoning of either of the two judges who

concurred in that judgment. |

In the Bell case, the Board found. the jurisdictional fact

which it failed to find im the case at bar. It found that

the man against whom the Bell Company had discrimi-

nated was an employee, as defined in the Act. Its finding

was: |

“The strike, called because of the failure of the re-

spondents and Local No. 258 to reach ‘an agreement

—l6—

concerning wages and working conditions, was a con-

treversy concerning terms, tenure and conditions of

employment. Berbermeyer ceased work as a conse-

quence of, and in connection with, this current labor

dispute.” A's ,

The decision of the Court, which is reported at 91 F. (2d)

509, did not consider the validity of the Board’s order in

the light of the Fifth Amendment; indeed, the portions of

the order requiring affirmative action which might have

constituted a basis for considering the effect of the, Fifth

Amendment were remanded‘ to the Board for further con--

sideration. According to petitioner (P. 11), the Board

made an amended order which the Court enforced without

opinion, apparently without considering any constitutional

problems. Under ‘such circumstances, it cannot be said

that the Bell decision conflicts with the judgment in the

case at bar or with the views expressed by the judges who

rendered the judgment.

In the Carlisle case, the complaint was not based upon

the refusal of the employer to re-employ strikers, but upon

its refusal to bargain collectively with men who had gone

on strike and had been formally discharged prior to July

5, 1935, when the National Labor Relations Act became

effective. The Board again found the jurisdictional facts

which it failed to find in the case at bar. That is, it found

that the men were employees as that term is defined in

11. Decisions and Orders of the National Labor Relations Board, Vol. 2,

p, 577, atp. 582.

— |)

the Act.” This circumstance alone would justify ‘a differ-

ent conclusion in the case at bar than was reached in the

C arlisle, case. Therefore, the judgment of the court below

cannot be in conflict with the Carlisle decision.

The principal question in the Carlisle case was whether

the provisions of the Act were retroactive so that a person

who had been discharged prior to July 5, 1935, could still

be regarded as an employee. The effect of the definition

of “employee” was discussed at length. It is not clear

that the specific objection that the order of the Board was

void under the Fifth Amendment was presented to the

court and judges rendering the decision of the court did

not discuss the Board’s order in the light of such an ob-

jection.

Certainly the decisions in these three cases are not in

conflict with the judgment of the court below. In the

light of KVOS v. Associated Press (supra), it is submit-

ted that they are not even in conflict with any opinion ren-

dered in the case below. |

12. Decidions and Orders of the National Labor Relations Board, Vol. 2,

p. 248:

“The union, unable to come to an agreement with the respondent

through the ordinary and practical channels of colleetive bargaining, be-

cause of the respondent’s stubborn determination not to deal with it in

a sincere effort to reach an agreement, resorted to strike, hoping that

by the use of this economic weapon the respondent would be forced to

bargain collectively with it.” (pp. 258-259.)

“That the strike, which began May 3, 1935, and which is still in

progress, was a current labor dispute at the time of the aforemen-

tioned refusals to bargain collectively cannot be questioned.” (p. 262.)

“Thus it is clear that the 263 members of the union went on strike

on May 3, 1935, and thereafter were still employees of the respondent

at the time of the aforementioned refusals to bargain collectively.”

(Page 262. Italics supplied.)

ae

C. THE JUDGMENT OF THE Court BELow Is Nor. Erro-

NEOUS IN THE LIGHT.OF THE JONES & LAUGHLIN

CASE.

Petitioner further contends that the decision below is

erroneous Gin the light of the decision of this Court” in the

Jones & Laughlin case, 301 U. S. 1, 47. Apart from-the

fact that the decision below determines no point of law

which can be extracted therefrom and found to be erro-

neous,,the facts of the two cases are so materially different

that there is no just basis for a compatison. The men who

were ordered reinstated in the Jones-& Laughlin case had

been wrongfully discharged by an ‘unfair labor practice,”

‘in violation of valid provisions of the Act. They were

conceded to be employees at the time of the “unfair labor

practice.” The men ordered reinstated in the instant case

had quit of their own volition before any unfair labor prac-

tice had occurred. They were not employees because there

is neither allegation nor evidence nor finding herein that

these men had quit work in connection with any current

labor dispute, so as to constitute them “employees” within

the purview of the statutory provision for the reinstate-

ment of employees. The complaint, in failing to allege

that these men were employees whose work had ceased in

connection with a current labor dispute, failed to state a

- cause of action for an order of reinstatement, under the

terms of the Act. There is no finding that. they were em-.

ployees, to support the jurisdiction of the Board and no

competent substantial evidence of the fact. Nothing said

in the Jones & McLaughlin case is in conflict with the

judgment rendered by the court below upon the record

before it. | |

—19—

ITT.

The Judgment of the Court Below Was Not Erroneous

in the Light of the Statute.

i len out by petitioner and as set forth under

Point II-A of this answer, neither of the judges of the

court below concurred in the opinion of either of the others

and.none of the opinions sets any precedent for any future

action by the Board or by any court. The only action

taken by a majority of the judges, and therefore by the

court, was the rendering of a judgment denying enforce-

ment of the Board’s order. The two judges who rendered

the judgment of the court rendered separate opinions. If

there were erroneous statements in either of these opinions

(which we do not concede), such statements cannot be |

‘considered error of the court. ‘The court did not write anyy

opinion; it rendered only a judgment denying enforcement

of the Board’s order. To determine whether, as petitioner

alleges, the judgment of the court in denying enforcement

was erroneous, it is necessary to examine not the opinions

but the pleadings, the evidence and the findings of the

Board and the other documents set forth in the record.

It is submitted that ‘the court rightly decided that theent=

forcement of the Board’s order against respondent was not

justified in the record. ,

A. THE NATIONAL Lapor RELATIONS Boarp Hap No

JURISDICTION UNDER THE AcT TO ENTER ITS ORDER.

The Board sought to exercise its power to order “re-

instatement of employees.” (Sec. 10(c}.) The Act de-

fines employees to include those “whose work has ceased

‘aS a consequence of, or in connection with, any current

labor dispute * * *.” (Sec. 2(3).) The term “labor

dispute” is defined as “any controversy concerning terms,

¢

OGRE RANE SENN DERE A IL ST MAVENS SAG STR LO OS FEAR, OLS

PO RE IR Se

=

tenure or conditions of employment, or concerning the as-

sociation or representation of persons in negotiating, fix-

ing, maintaining, changing, or seeking to arrange terms or.

conditions of employment * * *.” (Sec. 2(9).) Both

“dispute”’ and “controversy” mean a “contest by opposing

argument or expression of opposing views or claims; a

debate.’’*

The Board did not find that there was any such argu-

ment or expression of opposing views or claims at any-

time prior to the strike which occurred at midnight, Octo-

ber 4, 1935. The Board found that.in June, 1935, the

point to point operators of ARTA (the men here in-

volved) prepared a general agreement concerning wages

and working conditions,’* and presented same to respond-

ent, but agreed to postpone consideration thereof until

later; that they again presented the agreement in Septem-

ber and agreed to respondent’s request for time to study

same; that they then informed respondent that they were

“considering” joint action with the marine operators (not

involved here) who “had alsq presented the Mackay com-

panies with a system agreement.” ’

Up to this point (September 13), clearly there was no —

dispute or controversy. The Board found that, some time

prior to September, 1935, the local point to point operators

had sent Salisbury to New York, as their representative,

13. Webster’s New International Dictionary.

14. This proposed agreement was not produced at the hearing and there

was no competent evidence of its contents or provisions.

15. There was no evidence as to the subject or contents of said “system

agreements.”

_21—

to assist the national officers of ARTA in their négotia-

‘tions “‘since #ey were not too familiar with point to point

conditions, *\ and (by inference) that he remained there

continuously until the strike occurred. [R. 20, 21.] “On

October 4 the ARTA negotiators in New York decided

that a strike was advisable in view of the unsatisfactory

state of the negotiations. Salisbury telephoned the local

* * *” TR. 21]; and the strike of the point to point

operators in San Francisco then ‘occurred simultaneously

with the strike of the marine operators in NewYork.

Thus it is clear that, if there was in fact any dispute or

controversy, it must have taken place in New York, be-

tween September 13 and October 4. But there is no find-

ing as to what occurred in New York. The Board’s state-

ment that “* * * the ARTA negotiators in New York

decided that a strike was adwisable in view of the unsatis-

factory state of the negotiations,” is not a finding. that

the negotiations had in fact reached an unsatisfactory

state. It is not even a finding that there actually were

any negotiations in New York. At the utmost, it is merely.

a finding as to what certain unnamed persons in New York

_ believed or concluded.

The Board found that the local point to point operators

struck that evening. There is no finding and no evidence

as to who called the strike, or when it was called, or why

it was called. There is no finding that it was, in fact,

“called” by anyene. The finding is simply that the men

“went on strike” that evening. [R.21.] The inescapable

inference from the Board’s findings is that the local oper-

ay 7 a

ators, upon learning that the operators in New York had

voted to strike-that evening, decided to go out at the same

time so as to give them “moral support.” In short, the

strike in San Francisco was a sympathetic strike in aid of

the strikers in New York. It is submitted that a sympa- 3

thetic strike is not a “labor dispute,” in.so far as the “sym-

pathy strikers” are concerned. See Donnelly Garment Co.

v. International Ladies Garment Workers Union ( <.,

Mo., Dec. 31, 193)."*

An analogous situation was presented to the Supreme *

Court in the case of Baltimore and Ohio Railroad Com-

_ pany v. United States, 293 U. S. 454, where a number of

carriers sought to enjoin the enforcement of a rule, pro-

mulgated by the Interstate Commerce Commission under

the Boiler Inspection Act, requiring the installation of cer-

tain safety devices on steam locomotives. Under that stat-

ute the Commission was empowered to prescribe such rules

for the purpose of removing “unnecessary peril to life or

limb.” This Court held that the failure of the Commis-

sion to find that its rule was required to remove “unneces-

sary peril to life or limb” was a jurisdictional defect which

rendered its order void. Similarly, since the ‘National

Labor Relations Act limits the power of the Board to re-

instatement of employees, the absence of any finding from

which the Court can conclude that the five men were em-

ployees within the meaning of the Act was a failure to

find a 2 jurisdictional requirerhent. s

16. Reported in Prentice-Hall Labor Service, Sec. 18,211 and. 18,230.

: | —23—

B. THE Boarp’s ORDER Was IMPROVIDENTLY MADE AND

ENFORCEMENT Was PROPERLY DENIED BECAUSE THE

AMENDED CoMPLAINT FAILED TO ALLEGE A JURIS-_

DICTIONAL REQUIREMENT, TO-wiT, THAT THE MEN

NAMED IN THE COMPLAINT WERE EMPLOYEES AS

DEFINED IN THE ACT.

Section 10(b) of the Act provides for the issuance and

service of a complaint “stating the charges” in respect of

any unfair labor practice. It further provides that the

complaint may be amended at any time prior to the issu-

ance of an order based thereon. The Board filed its com-

plaint and Mackay answered: During the hearing, the

Board filed an amended complaint and it was stipulated

that, except as to matters admitted in the answer thereto-

fore filed by Mackay, the allegations of the amended com-

plaint should be deemed to be denied. [R. 900-901.]””

The vital question which petitioner seeks to have re-

viewed is whether Mackay can be compelled, against its

will, to employ men who the Board now alleges (after fail-

ing so to allege in its complaint or to find in its decision)

had ceased work in connection with a current labor dis-

_pute. The jurisdiction of the Board is dependent upon

the existence of the status of employer and employee.

Here, where the workers voluntarily ceased work and re-

fused to render services, they could be employees, as de-

fined by the Act, only if they did so “in connection with a

current labor dispute.”

17. The petition herein refers only to the original complaint (Petn. 4),

and contains no mention of the fact that this was displaced and superseded

by an amended complaint which was filed thereafter “to conform to the

proof.” [R. 7-9; 17, note 1.] The effect of this was to abandon and com-

pletely eliminate the original complaint as a iid 49 C. J. 558, and

- cases cited.

ath ns

_ The amended complaint does not allege that the five men

were employees at the time Mackay refused to offer them

employment and thus, so it is argued by petitioner, com-

mitted an unfair labor practice. Neither does said amended

complaint allege that the men had ceased work in connec-

tion with’a‘labor dispute. On the contrary, it alleges

that Mackay refused to re-employ the men. [R. 8.]

There is no inference, in said complaint, that the men

were employees at that time. The inference is to the con-

trary, because men who are already employed cannot be

re-employed. If ‘they were not employees the Board

had nq jurisdiction to‘make any order in respect of their

. future employment.

Failing to allege that the men were employees, either as:

defined in the Act or otherwise, the complaint fails to state

a cause of action under the Act. Federal Trade Comm.

v-Gratz, 253 U.S. 421, 427. This Court there said:

“Such an order should follow the complaint ;

‘otherwise it is improvident and, when. challenged,

will be annulled by the court.”

For this reason alone, the court below properly denied en-

forcement of the Board’s order:

‘C. Tue Evipence Dores Not Support THE Boarp’s

OrpvER BEcAUsE IT Faits TO SHOW THAT THE MEN

NAMED IN THE AMENDED CoMPLAINT WERE Em-

-PLOYEES AS DEFINED IN THE ACT.

7

It is submitted that the evidence is equally insufficient

to establish that the men named in the complaint were em-

ployees and therefore, that the Board had jurisdiction in

this cause. While it is perhaps adventurous to make a

categorical statement concerning a mass of evidence which

covers more than a thousand closely printed pages .[R.

a

ro

125-1140], it is confidently believed to be the fact that

there is no competent evidence in the record which even

tends to prove the existence of a current labor dispute at

the time the strike took place. Certainly, the petitionerer

has not referred to any such evidence. He has not even

claimed that there is any such evidence. | !

The record includes a vast deal of incompetent evidence

—hearsay, hearsay “twice removed,” opinions of lay wit-

. nesses, statements of conclusions, etc. Respondent does

~ not contend that the admission of incompetent evidence in

a proceeding under this Act constitutes reversible error.

Respondent does contend, however, that where, as here,

proof of a given fact is an indispensable predicate to the

jurisdiction of the Board to make the order, there must

be some substantial competent evidence which tends to

prove that fact. Arkansas Wholesale Grocers Assit. v.

Federal Trade Comm., 18 F. (2d) 866, 871; Hills Bros.

v. Federal Trade Comm.,9 F. (2d) 481, 484; Federal

Trade Comm. v. A. McLean & Son, 84 F. (2d) 910, 911;

_ Federal Trade Comm. v. Curtis Co., 260 U.S. 568, 580;

International Shoe Co. v. Federal Trade C omm., 280 U.S.

291, 297. .

It is apparent from the testimony, as well as from the

findings, that there was no current labor dispute up to the

time of the strike, unless such a dispute occurred in New

York. There is no competent testimony as to anything

‘ which occurred in New York during this period (from

September 13 to October 4). If there was any testimony —

‘upon this subject it necessarily was hearsay, because no

witness testified thereto who was in New. York at that

time. This is most highly significant in .the light of the

fact that the one witness who could have given competent

oe

testimony upon this subject, of his own knowledge, did

not do so, although he was present at the hearing before

the Board. Salisbury, who was in New York, as the rep-

resentative of the local union, for the purpose of aiding

inthe negotiations of the national officers, gave no testi- _

mony upon this subject, notwithstanding the fact that he

was present at the hearing and was sworn as a witness.

[R. 971, 972.] "The inevitable inference is that no dispute

or controversy occurred, as between the respondent and

the local union up to the time of the strike.

Under petitioner’s ‘construction of the Act the Board is

enipowered thereby to order the reinstatement of the men

when, and only when, they are “employees whose work

has ceased in connection with a current labor dispute.”

This fact is the jurisdictional predicate for the Board’s

order. The existence of this jurisdictional fact is neither

alleged nor proved nor found in this case. It is submitted

therefore that the court below did not err in denying en-

_ forcement of the Board’s ordef.

> .

D. Tuer Decision OF THE Court Betow Was Nort

ERRONEOUS IN DENYING ENFORCEMENT OF THE

Boarp’s ORDER IN Toro.

The petitioner alleges that even if Judge Wilbur’s opin-

ion be sound (and we submit that it is sound), there is no

‘basis for denying in toto the Board’s application for en-

forcement of its order and that the judgment was clearly

erroneous. (P. 20.) A reading of the Board’s decision,

however, discloses that the entire order of the Board is

predicated on the assumption that the five men were em-

ployees as defined in the Act. Since the Board made no

finding to this efféct by inference or otherwise, there was

no basis for granting enforcement to any part of the order.

—27—

“hee i

The Record Is Inadequate to Present to This Court

Any Question of General Importance.

Petitioner’s allegation that this case raises a question of |

general importance is predicated upon the assumption that

the record is adequate: to establish that the men, named in

the amended complaint were employees. Their status as

employees depends on whether they ceased work in con-

nection with a current labor dispute. Petitioner continu-

ally states that the men struck because of a “failure of

negotiations” concerning wages and conditions of em-

ployment. (Pp. 2,9, 11,19.) There is a complete absence

of allegation in the amended complaint, evidence in the

record and findings by the Board to support petitioner’s

statement.**

This case presents not primarily a question of law of

general importance but primarily a question of whether

the pleadings, evidefice and findings are sufficient to pro-

vide any factual foundation for the Board’s order, as dis- |

tinguished from any question of law of importance. Where °

‘the primary question is one of fact, certiorari will be de-

nied. In Southern Power Co. v. North Carelina Public

Service Co., 263 U. S. 508, this court ordered the writ .

dismissed, stating:

“The argument developed that the controverted

question was whether the evidence sufficed to estab- .

lish actual dedication of petitioner’s property to pub-

lic use,—primarily a question of fact.”

We submit that no question of public importance should

be decided ujion a record so deficient in the fundamental

requirements of pleading, evidence and findings necessary

to present the important question.

18. See Point III-of this Answer for full discussion in support of this

assertion.

. Sen RIO PRT

fr

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V.

Conclusion.

It is respectfully submitted that the petition should be

denied because:

(1) The court’ has no jurisdiction to grant a writ of

certiorari as requested in the petition, the petition not hav-

ing been filed within the time allowed by statute.

(2) The decision of the court below is not in conflict

with any decision of this Court or of a Circuit Court of

Appeals. No opinion was concurred in by two judges and

it is not the opinions but the order denying enforcement of

the Board’s order which constitutes the judgment of the

court below. That judgment is not in conflict with any

other decision.

(3) The judgment of the court below was not erroneous

in.the light of the statute. No other judgment could have

been entered for the reason that the Board did not allege

or find and the evidence did not establish that the men

named in the amended complaint were employees as de-

fined in the Act.

(4) The record is inadequate to. present to this Court

any question of general importance.

Respectfully submitted,

. H.W. O’MELveny,

WALTER K. TULLER,

Attorneys for Respondent.

O’MELVENy, TULLER & Myers,

Louis W. Myers,

Howarp L. Kern,

Homer I. MITCHELL, :

Of Counsel.