# Petition for Writ of Certiorari — Office Employes International Union, Local No. 11 v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0291%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1957 - **Citation:** 353 U.S. 313 ## Text ‘| Office - Supreme Court, U.S. FILED. yg De ge 14 tase JOHN T. FEY, Clerk aad j ions ‘orem | Supreme Court of the Anited States igus TERM, 1956 No. 422° Jo Po ee BN . Orrick Empioyes INTERNATIONAL UNION, _ Loca No, 11, AFL-CIO, Petitioner .— : | ; ; e | oo : ; ° y | NatioNAL:Lapor RELATIONS Boarp, Respondent. s a _ PETITION FOR WRIT OF CERTIORARI TO THE UNITED _ STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT | JOSEPH E. FINLEY. _ 215 DeSales Building -’ Washington, D. C. Attorney for Petitioner: Lippman, Woops, TYLER AND Fintey ” 215 DeSales Building ay Washington, D. C: ; Of Coynsel. ares Ue ne ae b Se SUBJECT INDEX > Page EO, occ v ce oNscteuscgedseci¥ecgneseesene ‘1 Surisdiction ......:... PRPOb IS ees nieces a Questions Presented ..... DOR RE OEE a Pie pee Pee | The Statute Involved .............++. Seer { 2 SS EGS AP vanes eivewaeas jbua? 2 _ Reasons for Granting the Writ ...........:... eae ah 8 I. Double Standard Labor Law: Are Labor. Union Employers Free to Commit Unfair Labor Prac- tices When Business Employers Must Obey the Seen CORT Oe TERT 8 II. Agency Above. Haase: The NLRB Flouted _ the Express Will of Congress in Excluding : — as. Employers From Coverage of the . | BORGES, RAPA ee ae ea Scie Tit. Conflict ‘Among the Decision Makers: There Is . No Majority Reasoning to Support This Para- (1), (3), 1, Wt ossca. Fiedvacs se veeeeee. . j -* .doxical and Unwarranted Result ...... bento 20 Conklin: Fae ye due bead Ucn asada Caw cai apes wee “TABLE OF CASES | Air Lire Pilots Association, 97 NLRB 929 .......... 5,20 ° ‘Bausch & Lomb Optical Co., 108 NLRB‘1555 ........ 7 . Lutheran Church, Missouri Synod, 109 NLRB 659 ... 19 ‘ Optical Workers Union v.. NLRB, 229 F. 2d oo QA: FER Re Ep eh Te er A ee Rem 3 Pederson v. NLRB, — F. 2d —, 38 L RM 2057. caweer? ae - Trustees of Columbia University, 97 NLRB 424...... 19 - United States v. Fisher,-3, Cranch 358, 386......... 14 United States v.. Universal C.LT. ‘Credit Corp, 344 US. 218, 221 esses cade eelieasa ss Sevscaebes . 14 7 «STATUTES | National Labor Relations Act, as amended, Sec. 2(2) 2, 3, 7, 8, 13, 4 ; National Labor Relations Act, as amended, See, 3(d)’.. ‘National Labor Relations Act, as ‘amended, See. Sta)” SE ‘IN THE aa Supreme Gout fe te Pte a or 1956 ~ Ovvnon Bact) ves twemsenasscitix UNION, Loca ‘No. ii, ‘AFL-CIO, Petitioner —_,_—__———— _¥,.. _. Nationa LaBor Raiamoie Boano, Respondent. , PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF _ COLUMBIA CIRCUIT OPINIONS BELOW The opinion of the National Labor Relations Board - is-reported at 113 NLRB No. 111 (J.A. 1786). The -opinio of the Court of Appeals for the District of - Columbia Circuit is reported at F. 2d -..' , and is” set out in Appendix A, infra. .— a JURISDICTION _ The Sodemnelit of the Court-of Appeals was laine on June 21, 1956 (Appendix A, infra). The .juris- , diction of. this Court is invoked under 28 U. 8. C. : Section 1254 (1). J = | ay i $ ae |" QUESTIONS PRESENTED 1. Whether the refusal of the National Labor Rela- tions: Board to assert jurisdiction over unf bor: practices of Teamsters Unions as employers. | ':their own employees was contrary to the expressed will © ‘of Congress and thus arbitrary and ‘capricious? 2. Waether the National “Labor. Relations Board _ acted ‘arbitrarily and capriciously in placing labor unions as employers in a category with religious, edu- é cational, and scientific rw for jurisdictional. purposes? . Tete eee ‘THE STATUTE INVOLVED _ : . ‘The abode statutony provision a wut. which this controversy revolves is Sec. 2 (2) of the National Labor. _ Relations Act, as amended, 29 U. §, C. Sec. 152 (2), ‘set forth in full as follows: ‘*(2) The term ‘enployer’ includes any sare ' acting as an agent of an-employer, directly or indirectly, but s not include the United States - or any wholly owned Government corpore‘ion, or _ any Federal reserve bank, or ariy State or political subdivision thereof, or ahy corporation or associa- tion operating a_ hospital, if no part of the net - earnings inures to the benefit of any private share- ' holder or individual, or any person subject to the © Railway Labor Act,.as amended from time to time, or any labor or nization (other than when ac ..as.an,employer), or anyone acting in the the canecitt | - of officer or agent of such labor organisation.’ wee | STATEMENT OF THE CASE The primary issue is whether labor unions are- shes to commit unfair labor practices ag the employees. ' who work for them because the National Labor Rela- pod Were new terres —y tions Board has declined to exercise its jurisdiction over these labor ‘union employers. The labor: union . . employers involved are the International Brotherhood of Teamsters and several of its: affiliates, comprising one of America’s largest and most powerful labor — - unions. The petitioner is a local ‘union o the Office ' . Employes International Union, a’ member of the _ Ameri¢an Federation of Labor-Congress of Industrial , Organizations just as are the Teamsters. The Office ployes union was the collective bargaining agent for employees who worked for the Teamsters unions. is is not merely another case seeking Supreme Court review of the its of discretion allowable to the ~ National Labor/ Relations Board in establishing a. . Jurisdiction over labor’ relations cases." This case ; favaiees a specific statutory reference to labor unions. . as employers and a_ policy established _by Congress. through the: language of the statute and its” legislative : history. Despite. the language of + See. 2 2) of the National Labor Relations Act, as amendéd,?, which includes . _ labor organizations within the definition of employer | ‘“‘when acting as an employer’’, the NLRB held that _ it would not effectuate the policies of the Act to assert. jurisdiction ovet unfair labor practices of-unions when | - acting as employers. The comments of dissenting — _ National Labor Relations Board Members Rodgers . and Leedom eloquently illustrate. the importance of - the primary issue : e's : . Cf. Optical Workers Union v. NLRB, 209 F. 2d 170 (CA 5, 1955), certiorari denied; — ~ US. —, 24 L. W.. 3328 (Oct, Term, 5 1955). | 299 U. §. C. See. 152 (2). 3 § Joint Appendix 1795, hereinafter referred to as J. ~ ee “ - ° at “ ua “he : ie 3 | 4 SSR {4 We balieve such dation 0 adheres a paridionisal e unwarranted result in permitting labor unions to deny to their own employees the very rights and privileges which unions have so vigorously advo- * gated and won for employees of others... Labor ' unions .are now free to flout the very statutory | .” provisions which. they ardently championed, and _., . labor.” been I iled as the Magna Charta of / : r. i Even | culminatiag 4 in. this case gan in 1953, when. several Teamsters Unions and iates in Portland, Oregon, undertook a course of treatment of their own office and clerical employees. that caused ynfair labor practice, charges to be filed by Petitioner with the National Labor Relations Board against these labor unions.as employers, Complaints were thereafter is- . ‘gued, and: extensive — were held before a Trial ‘ec Examiner. - ' i saiiced possible. The Teamsters. Unions ‘in found guilty peg ie : Examiner of violations of every employer unfair labor practice section in the law.* The scope of: these viola-. tions is again best illustrated by the description of ‘dissenting NLRB Members Rodgers and’ on: who - said’ ee “These vitiitions found by the Trial Saati - were not mere technical or trivial infringements upon the rights of the employees. involved, but ‘ Rastines unfair labor practices in the National Labor Rela-. | tions Act, 29 U. S. C. See. 151 et seq., are contained in Sec. 8 (a), . - gubséctions (1), (2);.(3), (4), and (5). The Teamster respondents were found by the ntailing all the « to have violated every one of these subsections, en the employer unfair labor practices .. 53. A. 1796. $ General - ounest . testify against 2 of the Fae and, in the case of Respondent Sweeney, 5 hs ics - were, if the Trial Examiner is. lenis and parcel of a purge of all employees of the spina . _ who persisted in promoting the cause of. the |, nion &s.against Local 223, the organiza- ~* Hon avored by the “other Respondents ; if we ‘-» . \aecept the Trial Examiner’s findings, certain of athe pondents by their.conduct showed not onl a disregard for the guarantees of the Act but al the Board’ 8 judicial processes by discharging ' ployees heea te they had been subpoenaed by g.a prospective witness for the General Poet sither to falsify hen — or nial sy trip. 999 a ° - Not-only. did thine: Teamstebs unions urge wituéstse - to falsify: testimony or ‘‘take a trip,” but, according to Members Rodgers and Leedom,* were found to have - -, committed. one unfair labor practice never before \ ' eneountered by the Board in its 20-year history of _ Waling with unfair. treatment of employees. These _ respondent unions, in dealing-with their own workers, - took reprisals, against employees who had been: sub-— poenaed as Board witnesses even before these employ- ees had testified. Concerning jurisdicti over these unions as em- ployers, the Trial Ex er was.confronted with the only previous NLRB decision‘on this question, Air Line Pilots Association, 91 NLRB 929. There, in a representation proceeding, the Board had found that . Congress intended that labor unions be treatéd like ' any other employer with regard to their own employees, that the union —- involved was multi-state. in! earn ae 5, A.1797. : ' the Board free to °of unions as jeer when acting as employers left — ; a ae Pees oe ‘ “ iii and. thgt. jurisdiction nda: fore be asserted. Following this precedent, tlie iner - found the Teamsters unions well within the meaning of the term ‘multi-state énterprise’’, and held that . .. jurisdiction shquld be taken over these —_ em- - _ Ployers.' ys, ae Le Exceptions to. the Trial senate’ s Intermediate ~ Report were filed with the ‘NLRB, oral argument’ was heard limited to the question | of the exercise of the - Board’s jurisdiction, and on:August 25, 1955, the Board handed down its decision, refusing to assert jurisdiction ’ over these unions as employers.” Accordingly, ¢ the oom: ~ plaints. we dismissed. | 3 Chairman Farmer ata’ Member Peterson, writing the opinion of the Board, said the statutory inclusion ° etermine if their activities affected commerce, anf if so, whether Board jurisdiction over their operations would effectuate the policies of the — _ Act. ®* The Teamsters unions, said the Board majority, - were nonprofit organizations, The Board did not assert jurisdiction over nonprofit organizations except ‘in’ connection with purely’ commercial activities of such - _ Therefore, the Board would not take , organizations.’ TJ. A. 1665. The E '.. chartered local unions 1,204,477. members, and in the year.end- , ing December 31, 1953, had a total revenue of $6,587,327, of which $5,755,232 represented remittances “to its offices in Washington, D. C. He further found that the International and its constituent locals or one integrated, closely; > ate national organization. ~8 J, A. 1790. ° a ee °J.A.1790. ee a t y miner found that the International Broth. . -’ erhood of -Teamsters was a national la rganization with 872 | 4 jaraditicn over these unfair labor practice of union employers.” 4% ‘Member Abe Murdock. in a concurring opinion, said that: the legislative history of Sec. 2 (2) of the Act - indicated to him that Congress did not intend that the | Board should take - jurisdiction over union employers except when unions engaged in commercial business." Needless to say, Member Murdock’s coneurring opinion was apparently so ill-considered by the Board’s Gen-_ . eral Counsel that no reliance was placed upon it in — argument before the Court of Appeals, and tio consid- eration of it was given by the Court below. : . Members Rodgers and ‘Leedom “dissented from Board’s finding, stating thaf the statutory wren and ‘the comprehensive legislative history accompany-. ing See. 2 (2). indicated a -purpose of Congress to. afford protection to employees of labor unions. There- fore, it was wrongful fof the Board to ignore that purpose and permit union employers to escape the responsibilities which the law had imposed upon them. _ The Court of Appeals, in 4 2-to-1. decision, upheld © _. the Board. Judge Prettyman, in an opinion joined in by Judge Danaher, held that the Board’s placing : 10'There was & strong hint in ‘the Board's ruling that it would. therefore take jurisdiction over pnions as employers when they engaged in commercigl businesses, citing Bausch & Lomb .Optical | Co., 108 NLRB 1555, as such an instance. But in that case, the _ union itself did not engage in business, nor. does a union hardly ever, if ever. There a corporation whose stockho}ders were mostly ‘union members engaged in an optical business competing with an optical company ghich apparently employed these same stock- holder-union mem ! | ia) J. A. 1792. -As P er’s di’ eieeians will point out, the legis- lative history is almo srl mecca to the a finding of Member Murdock. ; e Re a a the respondent ¥ unions in jurisdictional category with 3 other nonprofit employérs was rational and not arbi-. trary. As for the Sec. 2 (2) argument, the majority — -- eoncluded that the statutory provision ‘“‘put labor organizations in the category of employers as to their. — own ni, ty but it did no more than that.’’ Ae pendix: A , p. 4a). Judge Bazelon dissented. ey think See..2 (2)’s © | strikingly particular reference to labor unions sharply differentiates them from‘ non-profit organizations gen- 3 | erally and subjects them to the jurisdiction of the Act .. _ in respect to their .own employees. se {Appa "A, : p. 5a). This petition i is filed sethdion s review of the erroneous decision of the Court of Appeals. | , , — REASONS FOR GRANTING THE WRIT 3 Double Standard Labor Law: Are Labor Union Employer | Free to Commit Unfair Labor Practices. When Business Employers Must Obey thé Law? ~. | “Fairness and justice in-administration of our labor laws make this case particularly appropriate for Su- preme Court review. The National Labor Relations Board has ruled that, even though Sec. 2 (2)’of the. Act covers labor unions as employers when they deal - ~‘with. their own employees, it will not take jurisdiction over unions as employers, and accordingly, any labor union employer is free to fire, discriminate against, or. | interfere with employees for’ any reason - whatever. Commerica] employers, however, are held to a standard of fair tredtment of their employees, under require- _ ments of the law. The Courtsof Appeals has declined ' to disturb this Board ruling as within an ee area of administrative ee ~ This «paradoxical and unwarranted result’ makes «this case one of great public concern. It is -indeed ~ difficult to rationalize a result where labor unions, even though specifically referred to.in a statute as being within the law when they act as employers, are left — free to commit unfair labor practices against their own employees. ‘An Anjierican public, brought up on» traditions of fair: play and equal treatment. for a has the right to place this case ini th forefront # 59 matters of public importance. Peas. eo '4 _ It is respectfully submitted that no sdebiiainaiiees - decision of our time has been as widely reported in | the American press as was the National Labor Relations clippings furnished Petitioner by. a newspaper clipping service, Press Intelligence, Inc., of Washjngton, D. C.,. Some one hundred and four (104) American daily newspapers reported the NLRB decision-in-their edi- _tions.. At least twenty (20) of these newspapers con- sidered the ruling of such-fundamental importance that = they reported it on their front me a8 Dissenting NLRB —— of Members Rodgers « wert Leedom, ) J. A. 1795. 8 18 Petitioner, of course, has no eae to substantiate uch a belief, but considers the nationwide: press coverage so extensive that it would beunusual, indeed, if any other ruling of an administra- ‘tive agency tould have been as widely covered. 14 These leading newspapers considered the ye eaeens of this _ decision as worthy of front page coverage : New York Times, Baltimore Sun, Boston Herald, Cleveland Plain |. Dealer, Louisville Courier-Journal, Portland (Me.) Press-Herald Tel , Phoenix (Ariz.) Repyblic, Knoxville Journal, Portland .(Ore.) ian, Des Moines ‘Register, Baltimore Evening Sun, . © Madison (Wis.) State Journal, Beaumont (Tex.) Enterprise, Au- gusta (Ga.) Chronicle, St. Joseph {Mo.) Gazette, Fort Wayne Board decision of August 25, 1955." According to . 10 __ Editorial comment, another. indicia of the importance of a news event, was widespread. Clippings in Peti- tioner’s file, which are not submitted to be exhaustive, _ reveal that at least 34 newspapers carried editorials on the NLRB ruling. Not one single editorial is found which approves the NLRB decision. oN Representative : editorials illustrate the public reac- | tion that was aroused by the NLRB ruling. The Salt Lake City Deseret News and Telegram of Aug. 30, 1955, - titled its editorial, ‘‘Double Standard Labor Rela _tions.’”? The Mjlwaukee Journal of Aug. 30, 1955, head- — lined its comment, ‘A Fantastic Labor Decision.’ - The Youngstown (O.) Vindicator of Aug. 31, 1955, \— said, ‘‘A Mistaken Ruling.”” The New York Times of . Aug. 31, 1956, in a careful and. analytical editerial - headed, ““Whieh Unions Are Unionized,’’ was extrethely critical of the ard decision. Not only doke ‘the American public rightfully con- - sider the issue|here one of fundamental public impor- tance, but the thousands of people who earn their. living - working for labor unions ought to be afforded the protection: of thé labor ‘statute, The Board) inight argue, in response to this itidign. that the issue here is of little public importance because this is. the first case to come before the NLRB for - _ decision involving unfair labor apogee charges against No ~ (Ind.) Journal, Gazette, Paterson (N. J.) News, Lynchburg (Va.) News, Charlotte (N. C.) Observer; and Wichita ate cea all 29,1955. .- ° uld’be the last to argue that editorial opinion is . properly indicative of the correctness of.a legal ruling, but presents these newspaper views merely to show the grave national .concern over the NLRB d ision. : ii. ‘a labor union as an employer."* But such an argument ignores the restraining influence that Sec. 2 (2) must : have exercised over the years. Most labor unions, en- gaged in the primary activity of protecting and fighting for employee rights, would not care to have the un- wholesome publicity that would pursue their unfair dealings with their own. employees. Thus, -it was not . until the mammoth Teamsters Union, notoriously dis- dainful of public opinion, ruthlessly interfered with rights of its employees that any union was willing to take a stand for its ‘‘right’’. to deal unfairly ‘with its own workers. Now that:-the NLRB rejection of juris- diction has been approved by the Court of Appeals, other unions are free to quietly ‘“‘handle’’ their em- ployees as self-interest dictates. But in view of the éritfcal: question of wile our law provides for equal treatment for both/business employers and labor union employers, and in-view of the impressive public interest shown by the press ré- ports of the NLRB ruling, can the Board seriously ‘- argue this case iWlacking in sufficient public oe d o justify this Court’s review? _ There is another. factor in this ‘case that makes ‘it particularly appropriate for Supreme Court review’. now. If this decision is allowed to stand, there won’t 16 Ag sieunsitinn members Rodgers and Leedom pointed out (J. i 1797, fn. 12), a partial search of the Board’s files since 1947 showed that charges had been filed against unions as employers in 28 cases - . prior to this one. In 15 of these cases, unions were charged with ' acts of discrimination against their employees, and 13 others * charged them with refusing to bargain with their employees. These cases were disposed of in one administrative manner or another, - but the statement ‘of Members Rodgers and Leedom indicates that in each instance, the processes of the Board were called into play. _ thus. assuming that the Board would exergiat its — in each and every instance. 3 ’ QF -- 42. be any more unfair labor practice cases brought against unions as employers. Consequently, there will be no further court tests of the validity of the Board’s refusal . ’ .to take jurisdiction. Under the National’ Labor Rela- tions Act, complaints in | air labor practice cases are issued only by the General Counsel.” If this ruling stands as the Board’s position, the General Counsel will have no cause to issue complaints in the future, even'if charges are filed. And it is doubtful that any parties; aware of Board ‘“‘law’’ as they are, would be willing to go through the futile motions of even filing © charges. This one case could be the total life of this issue, in contrast to other great public issues which © may arise with frequency i in all sections of the. country, before courts of the various states and throughout the federal districts. This Court is the court bof last resort in. the most literal sense, With the. searching: question of the fairness of our labor laws before us, with a result standing now ‘‘para- doxical and unwarranted,’’ with the chronicles of public opinion, the newspapers, voicing uniform concern over the presefft outcome, the decision that labor unions do- ~ not have to obey the law toward their own employees ought not to stand without final review by the Supreme ‘Court of the United States. The importance of ‘this issue warrants granting this petition. - 17 Sec. 3 (d), National ‘Labor Relations Act, as a gmended, 29 U. 8. C. ‘See. 153 (d). | 18 If it be argued that Congress can sesitthy correct the NLRB. result by amending the statute, it should be pointed out that’ Con- gress ought not be required to sit as a post-decision appellate court whenever the NLRB obtains court approval for an erroneous ruling... - Congress has properly provided for judicial review of administra-" tive decisions to correct such gross errors as are présented here. 13 Il. Agency Above Congress: The NLRB Flouted the Express is @ Coapeene Soenting See heehee Pom Coverage of the Law | The critical legal question pervading this case is whether the. administrative agéncy used its discretion to override a statutory. ‘pojicy established by Congress. » When an beige ree, the Congressional will, there should be little doubt that such action is unlawful. The Court of Appeals for the Second Circuit recently took _. that position in-Pederson v. NLRB, F.2d =; 38 LRRM 2227, in finding the Board had abused its dis- cretion in rejecting jurisdiction of a case. ‘Where the Board acts arbitrarily or capriciously or where its action conflicts. with a clear purpose of the statute, . it has exceeded its authority,”’ write the Court (emphasis added). _ The ‘“‘clear purpose” of See. Q > (2), based upon the language of the provision, and the legislative history that accompanied it, was that when labor unions acted unfair labor. practices like any Court of Appeals has approved ~The Court of Appeals majority ¥ was in errot when _ it failed to find that Congress wanted labor unions as employers held liable for their unfair labor practices. Referring to Sec. 2 @2), the majority said: “Te put * labor organizations in the category. of employers as: | . to their own employees, but it did not more than that.” — To paraphrase the Court of Appeals majority, Con- gress merely said that when labor unions act as ‘em- ployers, we shall defirie them in the Act as employers. 14 Then, the. Board is free to) determine whether it wishes, to take jurisdiction overAhem or not in its wisdom of discretion. .This was precisely the position of NLRB majority which argued that all Sec..2.(2) meant was that unions were ‘placed in the category of em- ployers as to their own employees, and thereafter, the Board was free to exercise its own broad discretion as to what it would do about asserting its jurisdiction.” ad The Court of Appeals closed its eyes to the legis- lative history | ‘of Sec. -2 (2). A penetrating and ana- lytical ‘judiciagy, following the wise words of Chief Justice John Marshall, ‘‘Where the mind labours to - discover the design of the législature, it ‘seizes every- thing from which aid can be derived . . .’ néeds only to evaluate the totality of Congressional conduct on this statutory section to realize that the legislature unquestionably intended that labor unions as employ- | _ ers should be held liable for their unfair labor. prac-. tices. A short summary of the pe ceieng action 80 demonstrates : Aer aa : * 1. The first national oo bill, S. 2926, introduced by Sen. ‘Wagner in the 73rd Congress in 1934, excluded — labor unions viene From the definition of em- ployer.” —_—_—$_ 2. Hearings 9 were held on 8. 2926 before the Bariate - Committee on Education and: Labor, and witnesses : A 19 J, A..1790. | a ee 5: 7 . Tae e 26 United States .. Fisher, 2 Cranch 358, 386, cited approvingly | by. this Court in nited States v. Universal CLT. Credit Corpora- tion 344 U. 8. 218, 221. 21 NLRB Compilation of Legilative History of NLRA, 1935, p. 2. ¢ id ae “ : ; 2 ‘ forcefully criticized the exclusion + unions does the _ definition of employer.” 3. When 8, 2926 was favorably cain out of Com- mittee, the section in issue had been changed to the same language that is in the law today, including unions within the definition of employer ‘‘when acting as.an' - employer.’™ This was undoubtedly in seepee to the criticism of witnesses during hearings. ~~~" 4, Accompanying 8, 2926 was Senate*Report. No. 1184, 73rd Cong.,; 2nd Sess., May 26, 1934, which said :* “The j reason for stating/that ‘ employér’ excludes ‘any labor organization, other than when acting "as an employer’ is this: In one sense.every labor on a riggs is ployer, it hires clerks, sec- tava nd. the > Lk. Ta In its relations with its pio, rll verb a labor organization ought to be ‘treated. as an ae and. the bill so —. _= There isno reason ‘why a labor organization or anyone acting in the capacity of an officer or agent of suth labor organization who ~ | hires employees should not -be termed and considered an employer. No reason’exists why labor organizations should be exempt from _ the‘provisions of this Act.’” Remarks of L. L. Balleisen, secretary, © *. Industrial Division, Brooklyn Chamber of Commares, Board Com- pilation; p. 690. Cae » “This exclusion ‘of organizations as employers is unfair | _ per se if the philosophy f the bill itself is consistent with justice. — It is, no doubt, based nm the erroneous assumption that anyone working for a labor o i tion is perforce guaranteed the same treatment as is provi for in the bill... .’’ Remarks of Leslie - Vickers, economist, Amerigan Transit Aihociation, Board Compila- - tion, p. 720. .Mr. Vickers was rightfully foreseeing the kind of conduct hea the Teaimster respondents below engaged in twenty . NLRB Compilation, Pp. 1102. ve * | A i, /16 = ut in wdation te pe aii it ought not to be treated as an employer, and ought.to have the © right to use lawful means to induce employees to ‘join the rs ” Thus, after criticism in hearings that unions as em-._— ploy? should not b¢ exempt from the bill, the Com-— . ~said that a ‘flabor organization ought to be - treated as an employer, and the bill so provides.’’ This must mean that Congress desired that labor unions © when acting as employers be liable for their unfair labor practices, like any other employer. | - 5. After the 73rd Congress failed to agt o on ‘the labor bill, Sen. Wagner introduced S. 1958 in the First Session. of the 74th Congress. This bill was enacted into law as the National Labor Relations Act, popularly known as.the Wagner Act, and again, the employer definition . section extluded clabor organizations al- together." ; 5 ag 6. In hicsittngs before the Committee, riticians was | again aimed at the exclusion-of labor unions from the definition of employer.” 7. When §8.-1958 was reported favorably out of 7 ‘Ceaialaag the material portion of Sec. 2 me was again ar to — Sas feta as dei does today.” ame 2% NLRB Compilation, p. 1295, 28 Robert C. Grahani, vice president, of Graham- Paige. ‘Mise im listing criticisms of the bill, enumerated this one as fol- This bill, in paragraph (2) of Section 2, excludes ‘any rganzation ‘from any of the requirements to which employers are (subjected by: this bill’.’’ _ Board Compilation, p. 1990. é. A oe ome oo ak, ee ee ere 8. Accompanying 8. 1958 was Senate Report No. _ 573, 74th Cong., 1st Sess., explaining why unions were excluded, except when acting as employers.” This explanation was similar in tone and content to that ‘made by the predecessor committee. , The author of the labor Act intended to exclude — ‘unions as employers from provisions of the law. is would: have produced the result which the Natio Labor Relations Board has given us twenty years later in its “‘discretion.”’ Criticism of that result in com- mittee was made by witnesses who argued that unions when acting as employers should be held to the provi- © sions of the law. Successive Committees amended the pill to ehange the intent of the sponsor and bring — unions when acting as employers within the statute’s " provisions. By bringing unions when acting as em-— \\ployers within the provisions of the Act after the. - . author of the bill had omitted them, and particularly. after witnesses had criticized the author’s exclusion for the sdme equitable reasons that persist today, Con- gress demonstrated a‘clear purpose that it wanted labor unions acting as employers held liable for their _ unfair r practices. §§ — ° : It was an abuse of the Board’s discretionary juris- ‘diction to réject. the Congressional purpose and gub-. . _ stitute its judgment on what would effectuate the poli- - cies of the Act. It was error for the Court of Appeals "NLRB Compilation, p. 2305.: The Report stated: Oe 6. | ‘The tert ‘employer’ excludes labor organizations, their ‘officers and agents (except in the extreme case when are.. ‘acting as employérs in relation to their own ay ' Oth¢rwise the provisions of the bill which prevgstt employers . participating in the organizational of workers ‘ d extend to labor unions as well; “nd thus would deprive — unions of one of their normal functions. "’ pe 3 to find that Congress did no more than include unions | within the defigition of employer and leave the NLRB © free to decide in its discretion whether it desired to - . exercise jurisdiction over these union employers. The Court of Appeals wrongfully allowed the N B to use its ‘‘discretion’’ to amend ‘the statute back. to the original language of Sen. Wagner after Congress had _ methodically demonstrated it did not desire that result. The second.-error of the Court of Appeals was in its finding that the Board placing of unions in a juris- | dictional category th “non-profit” employers was not arbitrary.”. Congress undertook to amend the labor’ statute i 1947, the House bill, H. R. 3020, in defining employe language that excluded “any corporation, community chest, fund, or foundation - organized and operated exclusively for religious, char- , . 5 sitable, scientific, literary or eductional purposes, or for the: prevention of cruelty to children or animals, . part of the net earnings of which inures to the bene- of-any private shareholder or individual.’™ The te. vemoved: this Wrend exclusien, and the Ove ference ‘Report stated: The other non profit slits, excluded - 3 sniins ihe House Ui ope ust apeiioalty enatled ‘* in, the conference agréement, for only in —- Pp : mente promo ~ age ae ction with hae es of such o ons ' any of the activities of such organizations or of | employees been considered as affecting com- merce 0 as to bring.them within the scope of the National Labor Relations ast. - ae "Sats eee eid is Glen ta © Gs ten ob dee ae correct in holding that Sec. 2(2) allows the Board to exerciné its — 3 Se eS re ee De ene unions as employers. — “4 "J. A. 1799-1800, | a “ 19 rn. om. Thus, Congress was. approving the Board’s policy of not taking jurisdiction over religious, charitable, AS ces literary ,or educational organizations, not | nonprofit” groups as a whole. “Labot unions, who _ operate for the intensely practical purpose of bringing economic’ bette to their members, are neither, religious nor charitable nor scientific nor literary nor ° ’. .educational organizations. To plaeé them into such a jurisdictional category is arbitrary conduet, especially when the Board itself, in the same opinion contested here, referred to “‘. ... labor organizations . . . when engaged in their primary function of advancing em- ployee welfare, are institutions unto themselves within the framework of this country’s economic scheme . . sea. And pne sentence later, the Board made reference to ‘\c.-.-, the singular characteristics of their institutional operations.” = = = ° ae Because of their ‘singular characteristics,” because for the Board to place unions in a jurisdictional | ; + / “J, A, 1791. a De: >... employees.”’ ae. + seltmnterewmng : % Lutheran Church, Missouri Synod, 109 NLEB 659; The Trus- — tees of Columbia University, 97 NLRB 424. a ee ttlitinn, Ol . 20° to approve this odd rationalization for an unwholesome result. 48 | “« TL Confer Among the Decson Makers Thers I> Season: on ee , ranted Result While admittedly there i is no coniict among decisions - of appellate courts on the issues here, since but one~ Court of Appeals has passed on the Board’s.ruling, ~~ Pe itioner does want to point out there is no majority. to support the result ‘in this case. aes © adjudicators have ruled thus far. The Examiner held that jurisdiction ought to be asserted,.- based on the Board’s prior ruling in Air Lime Pilots _ Association, supra, and the Tanguage of Sec. 2. (2). Two dissenting members of the NLRB said-that Sec. -2 (2) and its legislative history indicated a Congres- sional purpose to hold unions when acting asemployers - liable for unfair labor practices. J udge Bazelon, dis- ' ., senting below, became the fourth‘adjudicator to agree that ‘NLRB jurisdiction must be be taken over unions- when acting as employers. | Four decision-makers stand opposed in reasoning. The two controlling members of the NLRB, Chairman — Farmer and Member Peterson, held that the Board -was free to exercise its discretion to refuse jurisdiction. _ The two Majority judges of the Court of Appeals _ ~ agreed, approving ‘substantially the reasoning of the - two Board members.‘ ) The ninth adjudicator, Member “Murdock of the , Board, rested his decision on entirely different grounds, reading the legislative history as indicating that Con- ° _ gress meant to cover unions as eniployers only when these unions were engaged in commercial -business. 2 Cum. | 21 “gf Since the Board completely diicciuee this view in the Court.of Appeals by neither briefing nor arguing | Member Murdock’s aberrant position, and since the - legislative history wholly fails tosupport Mr. Murdock, — his reasoning ought not to merit further consideration. | An issue of basic public importance, decided in such a way as to bring into‘question the fundamental fair- ness of our labour relations law, should not:be allewed: . to stand with no majority reasoning to. support it. Only this Court. ean\ provide a final reasoning with ‘~ sufficient suthoelty. to merit soo confidence of our . _— po “ * CON CLUSION Dana: For reasons. haretetors presented, this petition for — certiorari should be. granted. ; eee submitted, _ Attorney for Petitioner * LippMan, Woops, TYLER AND FINLEY - 215 DeSales Building _ Washington, Dz C. i Counsel. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0291%3A02. Public record. Not legal advice.