# Answer Brief — National Labor Relations Board v. MacKay Radio & Telegraph Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0031%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Answer Brief - **Published:** January 1, 1938 - **Citation:** 304 U.S. 333 ## Text 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............... “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 ( . 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 £ ee ee = oo 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0031%3A5. Public record. Not legal advice.