# Appendix — Local Lodge No. 1424, International Ass'n of MacHinists v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1960
- **Citation:** 362 U.S. 411

## Text

la

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No, 14257
. ? Z s : %
Local Longe No, 1424, IXternationaL AssoclaTion or
Mac HINists, AFL-CIO; and [NrernationaL Assoc IATION

or MacHINIsTs, AFL-CIO, Petitioners * ;

v..

Nationa, Lapor Retations Boarp, Respondent

\ No. 14324 |
NationaL Lasor Revations Boarp, Petitiones

: o' - Vv.

*

Bryan Maxveacturinc Company, Respondent

\
\
\.

On. Petition to Review “a Set Aside and on Petition to
‘Enforeeian Order, of the National Labor Relations Board

Decided February 27, 1959

Mr. Be aed Dunau, with whom: Mr. Plato’ E. Papps
Was on the brief, for petitioners in No, 14257.

Mr. Frederick Us Reel, Attorney, National Labor Rela-
tions Board, with whom Messrs. Jeromé D. Fenton,
General Counsel, National Labor Relations Board, Thomas
J. Dermott, Associate Gieneral Counsel, National Labor
Relations Board, Marcel Mallet-Prerost; Assistant General
Counsel, National Labor Relations Board, and William W.
w atson, Attofney, National Labor Relations’ Board, were

on the brief, for respondent in No, 14257 and petitioner
in No; 14324.

Mr:-Frank L. Galucci, with whom Mr. Abraham Dobkin
‘Was on the brief, for respondent in No. 14324.0 Mr. Plato.

n

2a

EF. Papps also entered an appearance for respondent. in
No, 14324... .

Before Prerryman, Chief: Judac, and Fauy and- Br RGEH,
Circuit Judaes, rg

Burecek, Circuit: Judge: ©The Bryan - Manufacturing
Company (respondent in 14324), which then employed
about 150 persons in its Reading, Michigan, plant received
a letter in July 1954 from the Internctional. Association
bf. Machinists advising that the Machinists represented
‘‘a majority of the *praduction and maintenance’ employees
of your company.”” The Machinists sought a collective
bargaining agreement. ,

In the proceedings from which this appeal arises it was
found by the Trial “Exiinminer and the Labor Board that

the Machinists did not in faet represent a majority’ vf.
the company's employees at that time, and_ this: fimding °

of no majority is net challenged here.’ At the time the
Company received the letter, Loeal 701, United Auto

Workers, was engaged in organizing aetivities among.

Bryan employees at the Reading plant, but this was

discontinued after the Coinpany signed: a_ collective bar:

gaining agreement with the Machinists.

On August 10, 1954, thie Company signed Q contract
with the Mae hinists without first seeing or seeking. any

evidence that the Union represented a inajority pt it.

employees, No employeé authorization eards were show n.
to management. representatives, no election was held, and
the Company made no independent inquiry as to the desires

of its employees, The August 10, 1954 contract contained”

“TAt the hearing on the complaint before -the Trial Examiner
thirteen persons employed at Reading when the contract Was signed
testified that they did net know or hear that the Mac hinists had
‘interested. themselves in organizing the plant until about a week
after the contract was signed. [t was stipulated that an additional!

thirteen employees wou give similar testimony.
4

-

,

ja

a conventional union shop clause and ao dyes check-olf
provision, aa ; °

On June, 1955,-approgimately ten months after the
1954 contract wes signed, but two months before it: was
_ renewed in a 1955 contPaet having the same union shop
and dues check-off “provisions, one Maryalice Mead? filed
a charge of unfaif labor practices against the Machinists .
and the Company; on Angust’ 5, 1955, she filéd) supple-
mentyl charges! Bach charge asserted the frustration. of
ea free choice of the émployees in the selection of a bar-
gaining agent. On October 5, 1955, separate complaints
were filed: against the Union and. the Company on the
basis of these charges, and ‘the complaints: were consoli-
dated forhearing and determinatian,

*

On Atigust 30, 1955, the Union and the Company signed
a new contract which included employees at an additional
Bryan plant in-a nearby town. Although the new con
tract had revised seniority provisions, was effective. for
a different: terha, ad contained several other changes, it”

had a union shop clause and a dues cheek-off ‘provision
identical to those in the 154 contract,

Between August 1954 and August 1955) the Company
expanded its 6peration from 150 -to S50 employees, and —
by ‘November 195%. the re were 480 persons covered by the
contract. Each new employee hired was compelled sto
jon the Maehinists unton witha. 45 days af being hired,
cand each signed an individual dues cheekot authorization,
The Union does not.challenge the finding that the identi
cat union shop provisions in the 1954 and the 1955 con-

ae :

?She was employed by Bryan at the Reading plant from No-
vember 1953 until October To,

“The Board adojted the Trial Examiner's finding inter alia
that, in’the spring of 1955 ‘discontent at the Reading plant de-
“veloped among etuployees who resented the way in which their
right to selfAletermination had been. thwarted when, the LAM/s
Machinists 7) contract had literally been thrust upon them... 27’

4a

. : @-.,
tracts were enforced during the’ period * pertinent ye
dnd that the dues of every employee were checked «
under the respective provisions,

The Union now secks review and the Board énforee-
ment of an order, and: finding that both the, Uniow and

the ¢ ompany ‘violated the Labor Act* by maintaining and

ee eis ax ‘

enforeing the union shop provision’ and the dues checkotft”
agreement’ in the two contracts. The Board held that
such enforcement was an unfair labor practice beeause the
basic contract was formally executed at a time when the
Union did) not represent a majority -of the Compatiy’s
employees, The primary issue presented on appeal

whether the Labor Act's statute of limitations? bars. the

Board from finding that these acts, ne, the enforcement

' Natiotial Labor Relations Nets § S$ 8(aj (1 ay raid aoe Q (2), Hl
Stat, 140 1455, 29 1.8... § $1580) 103), bid),

As A] condition of employ ment, all “employees covered by this
ayreetient shall, forty-five (45) days after’the date of execution
of this agreement. or in the case of new employees forty-five (45
days after the date of hiring, become members of: the U nion.. and”
remain members tn geod staading in the Uniow during the term
of this agreement. *, ie tps

* Upon receipt of a signed authorization of the emplovee in
volved, the Company. shall deduct from the employee's pay eheck—
the initiation fee aud dunes payable by him to the Union during
the perrod prov ided fOr iy sand authorization,

“Deductions provided for above shall be remitted to the financial
secretary: of the Fnion no later than the tenth day of the math

_ following the deduction. The Company shall furnish.the financial

secretary of the Union monthly, pay record of those for whom de.
ductions have been 2 nade. aks

7 National Labor Relations Act $ 10(0b), 61 Stat. 146 (1947) 2"
Es. § M00b): Provided, That nd complaint shall issue based
upon any unfair labor practice eecirring more than six months
prior to the filing of the charge: with the Board and .the service
of a copy ‘thereof upon the person against whom ame charge. Is

ma
of the union shop and the monthly checkoff of dues, were
unfair laber practices,

Our: scope of review is limited to determining whether
there is substantial evidence’ in the reeord as a whole te

unvort. the Board's findings of fact, Universal Camera.’

Corp. Vv. NURB, 340 US. AT4 1951), and whether the

Board has’ applied the statute in ‘ta just ‘and. reasoned
manner, * Gray yx. Powell, 314 U.S, 402, 411 (1941). Hav-
ing in mind this limited scope of review, we are constrained
to uphold the Board's cone ‘lision.

If the alleged violation Were the mere signing of the
original contract in 4 as distinguished from continuing
cand repeating its enfercement against emplovees, the

Board's order would be invalid undef § 10h). It was’

rational, however, for the Labor Board to: conclude that
the violation ieend e as a continuing one, repeated anew
cacp time the union security clause. was. enforced or
dues checked off. Henee, the statutory period “had not

expired, NLREIP vy. Gaynor News Co. WT FL 2d 719% (2d |

Cir, 1992), aff as sub nom, Radio Offer” si Union, AFL NS.

pinged MTUS (1954); Katz... NLRB, V6 FB, 2d 410.

Lith ¢ “195 2). New employees were affected by the ean
tract as. tin were employed, Fach nionth up to‘and in-
elading the month when the charge was served, dues were

deducted from, the wages of each employee of the company,”

~ineluding Marvalice Mead, who filed the charge. Thus the.

* contract _ provisions had a positive impact whieh was re-
Ald ated regularly from tine to time as te each employee,

It is con
relying o1
to serviye of the charge ino order to prove a violation.

The union security clause sand ‘the dues cheekoff provi-

inded that § 10(b) prevents the Board from — -
events occurring move than six months prior

sha} bere involved were proper on the ir face, The refore’

in ofder to show the jllegality.of enforcing these agree-
niyfits, the Beard was compelled to look back more than
sX months in erder to show that the Union did not rep-

tan
resent a majority of employees when = contract, was

signed: According to the Union: and ‘the Company, the
Board may not do this.” This issne ra es questions. on

* Which authority is dimited and no eases itre precisely or’

direc tly in point. “

\

In N LRB vy. Gaynor News Co., supra, the Second Cir-
cuit upheld a finding that it was a continuing —

for a company to enforce a union shop contract without

first obtaining Board certification that a majority Ww em-
ployees had authorized such a contéact. , Under the then
existing law no union shop contract was valid ee
such a certifieation.~: In the case before us the Union am
the Company. would distinguish the Gaynor—News ease »
-on the basis that there the absence ‘6f the r required cer-

tifieate was observable within the six-month period. There.

was no need in that case, they point out, to go back -he-.
yond the statutory period to demonstrate the illegality
of enforeing the union shop clause. Cf. NLRB v. Carpen-
ters Local 1028, AFL, 232 F. 2d 454 (10th Cir.), cert. de:
nied, 352 U.S. S39 (1956). In the instant ease no ey ridene “
Arom within the statutory period: will serve to show w hy
enforcement Is iHegal.

-

‘Section 10(by is, however, a statute of limitations and ~

2
|
|

not a rule of evidence. NLRB vy. Clausen, ISS F, 2d 459, .

443 (3d Cir.) cert. denied, 342 U.S., 868 (1951) (dietum):
The .established rule is that evide nee of ‘transactions.
which for some reason are barred from forming the basis

fora suit, may nevertheless be introduced ‘if it tends. rea- .

sonably_ to show ‘the purpose and character, of. the. partic-

ular transactions under serutiny.” FTC vy. Cement Insti--

tute, 333 U.S. 683, 705 (1948). This rule is, of course,
subject to the important qualification that testimony as
to such barred events may be received only-as background

a National Labor Relations Act, § 8{a) (3), / ‘rovided (ii), 61 Stat.
140- (1947), subsequently amended by 65 Stat. 601 (1941), 29
U.S.C. § 158(a) £3), Provided (ii).

9

» See Paramount C ap. Mia. CA. v

- plain the events within the perigd.

Ce Bits aang

evidence and may not be yiver independent. significance.

Cir, 1958). Put in another way, there must be acts oe¢-

curring Within the six-month \period of sufficient status to.

constitute the violation charged, and evidence of ‘acts out-
side the period can be received only to. illuminate and eX-

This brings us to the erux of the case: was’ thei fact
that the union did’ not represent a majority of Bryan

employees when the contract was signed of. _ inde-
penden nt significance that its use in evidence: is) berred
by $ 10(b). or does this-fact, in-these cee merely
serve to illuminate and explain the. subsequent enfor¢e-

ment of the contract—an occurrence taking place within:

the statutory period?

The ‘Board ‘did not find here that the formal .ereeution —

oK the 1954 contract with its union security clause and

‘its ‘dues checkoff, provision violated the aet. It fotind
rather that maintenance and enforcement of the 1954
contract was an unfair labor practice and further that

the signing ‘of the 195 contract also constituted. a vio-
lation.® Since a majority of the Bryan employees were

* The Board adopted the,Trial Examiner's finding, ‘‘that the
Iho agreement is a modification and extension of the 1954 agree.
nivnt.” * The Examiner rea otied: in the alternative, however, that
“even Hf the 1955 agreement were.to be considered a new agree:
ment between different parties, the fact remains'that any majority

claimed by the Local Lodge at the time the 1955 agreement Was |

entered into, which rests on/the checkoff authorizations then in effect
and seeured pursuant: to:
no validity in establishing/ an unassisted majority: under the hold-
ing-of the Board?’ in Oliver Mach: Cotp.. 102 N.L.B.B. 822 (1953),
tnforecd, 201, 2d 946 (6th Cir, 1954). Tt is unnecessary for tis
fo pass on the validity of the finding that the 1955 ‘agreement was
only an @xtension of the 1954 contract :‘we accept the Trial Ex:

aminer’s reasoning that, whether it was an extension of the 1954

contract, or whether it was a new and independent contract. its
Validity depends on conditions whith prevailed on August 10, 14.

_ VERB, 260 F.2d 109 (Sth.

1 1954¢% agreement. clearly Swould have |

Sa

members of the Union by ‘the time the 1955: contraet was
signed, the illegality of the 1955 éontract stems from the
illegality of enforeing the ‘1954 contract for if enfores.
thent of the 1954 contract was: an unfair labor practice,
the fact that the Union achieved majority status subse.
quent to its execution and as a direct result thereof does
not remove the taint, Changes in’ status whié¢h “result
from unfair practices have ‘heen pote by the Supreme

~ Court not to affect. the Board's power to -réstore the?

status quo ante, Franks Bros, le v. NLRB, 321 US. Toe,
(1944); see. Joy Silk Mills, Inc.v. NLRB.STEUS. “App. 1)".
360, 372, 185, F. 2d’ 7: 32, 744 (1980), cert, bv wet, 34] US.
m4 (1%. m1). ,

The Board takes the position that evidence of the

— Union's lack 6f status when the éontraet was signed is
vet in and of itself the basis for its leg il conclusions, but
ix: used only to illuminate subsequent events namely. cOn-
tractually ‘compelled union. membership and dues cliee kof,
‘these being events which occtirred within the six menths

‘prior to service of the charges. /In this situation, that:

‘distinction would seem to have validity because. the un-

fair practices involwed are positive acts which are. beth
continuing and repeated. Only where the violations are. -

of this tharaecter, &e,, ‘continuing ‘and repeated, however,
ix it appropriate for the Board to rely on events outside

the statutory period to establish a ¢ criticat clement of proo!

“ —$———

It seems to us this distinction is illustrated by NL RB
v. Pe nngorven, Ine., 194 FL 2d 521 (38d) Cire 1952), and
NLRB vy. Childs ( rn, LID Bd OPT (2d Cir, 1952). Those
‘ eases hold that a diocharge for ids activities is not a
continuing violation, that the employee's right to rein-
statement and back pay is barred after six months from

of the offense, cr -

the date Of discharge, and that . employer therefore —

does not commit a new unfair labdr practiee when he ‘re-
fuses reinstatement and back'pay “ the six months have

ee
ee

mea:

run. In those cases there was no affirmative action by the
employer in’ the interim between discharge and demand
for. reinstatement) which Gould nappart any concept of
continuity.

In the instant: case, however, the activity Which the. Bo: urd

held Was an unfaiF Jabor practice was thee nforeement of
the union se¢ urity Clause which was: repeated each time a

new employee. was compelled to join the Union,.and the:

- enforcement of the dues eheckof? provision whieh was. re

peated as to every employee ¢ ach month. Here the activ ify”

charged-as being iHegal was continuing and re petitive, lara

pe oa positive impact on the rights of Saiplovess every
month, if not every day during which the contract) was.
enforced, In such a case it is not -unreasonablesfor ‘the

Board, charged with day to day adininistration of the Labor:

Act, to say that the f facts relating to the wenesis of tlic eur
rent Hlegal activity may be received in evidence green though

_ the statutory period has’ run with respect to these genera:

tive facts. Where. there is no continuity: Gas in Powmworen
and Childs), the original allegedly iegal act must, to have
any effect at all, be given, signifieanee. inde spendent Jot the
subsequent aets and cannot be received, T his same distjne:
tion was drawn in Katz vo NLRB, supra, 196 F.2d A, 40
no oa (9th Cir, 1952), and in VL RB vol vite Mois friqrln,

oth FE 2d 465 (3d Cir, 1952), cert. dented. 344° ULS O14.

(1953) see Superidr Enaraving Coo Vv. NLRB iso BL td

483. 790 (7th Cir, 1950),-ccrt, dented, 340 US. 920. 01951T0"
P = 4

Nite ‘raspect of the Penne ‘oren amd Childs cases serves
to distinguish them from the instant case, In those cases,
for the Board tochave fannd an unfair labor practice within
the statutory period, it would first have been required to

“make an éxpress-finding-that another unfair labor practice
had been cénimitted outside the six-month: period, - The

refusal to rehire would only be unlawful af: the origins

‘firing constituted a violation of the Act or if the refusal
* wert diseriminatogy. If the. emplovee contends that the

= 27

on

e

. 1M -- —

°° : ; ——_ =

‘current practice, 7.0. the refusal to rehire, is diseriminatory.
then the fact of the original firing may be used as a
ing or background evidence, Paramount Cap Mfa. Co.

NLRB, supra; ‘see NLRB vy. Te rtile Mach, Works, Ine.. 4.
F.2d 929 (3d-Cir, 1954), 1 ‘he Board is prohibited, however,

frpm taking any legal conclusion with regard to events
outside the statutory period. “American Fed’n of Graip

Millers, AFL v. NLRB, N97 F. Yd $51 (Sth Cir. 1952). Al.

though the Board in the instant case must look to the facts
‘surrounding the making of the 1954 contract, its ultimate

“holding. depends on their mere eristence rather than on

*

astribing legal significance je those facts standing alone.
Ini other words it is the-enforcing, not the siqning, of the
contract. which is the controlling eyidence of the unfair
prac tice,

Any othe ‘r conclusion would permit an employer and a

union to.enter into what amounts to a collusive contract
without consulting the wishes of a single employee, then
sit back for six ‘months before enforeing the membership
or dues provisions of the contract and rely on $ 10(H) of

the Aet to protect them from an’ unfair practice charger

This would defeat one of the basic’ purposes of the Aet
which was to insure.thaf-employees could select bargaining
agents free from domjnation or coer¢gion, Few things

could be rere ‘productive: of industrial tyranny than to .

permit employers and wnions. thus’ to dictate ‘selection of
bargaining agents without consulting employees, The
Board's orderis therefore clearly consistent with the spirit

of the Labor Act and Goce 1 not violate the letter of its stat-

ute of limitations.

‘There is another factor to be kept in mw: ind in this ease:
in interpreting, std and adininistering a statute of
limitations preseribed, by Congress’ in’ this context, the
Board—and the courts—are not confronted by precisely

the same considerations as pi ply to statutes of limita-
tions .affecting the private tights of two individual liti-

, eo '?

ore * oila

. Yo

cants, ‘As part of a complex statutory Scheme the problem
the Board here deals with is far broader than the inter-
ests of two private litigants; the rights of an indeterminate
number of working men and important rights of the public
are also involve dl, ‘all of this being part of what was though)
to he a fairly,if not delicately balanced machinery to pre- +

* Serve collective bargaining equality between employers, on
‘the one hand and employees acting through freely and

democratically chosen bargaining agents on the other, The
Board may haves thought that the interests of self deter-
ination outweighed otherwise important competing con-
sidérations of burying stale disputes. The dispute here
involved is not the kind which buries easily but rankles ‘at:
least. once a menth in the mind of those offended by being
forced, as they see it, to pay tribute to an organization they
had no really free choice in joining. We therefore uphold
the: Board's order under the authority of NLRB v.Gagnor
News Co, supra, WT Fr 2d 719 (2d. Cir, 1952), af ‘d sab nome
Radio Officers’ Union, AFL x. NLRB, 347 U.S. 17 (1954),
and Kat: v. NLRB, supra, 196 F, 2d 4h (9th Cir, 1952).

We. turn. now to. the second’ phase of the attack made
on the Board's erder by the Union and the Company. | The
order requires the Union and the Company, jeinty and
severally, to reiaburse the employees for the initiation
fees and dues checked 6ff parsuant to the contract. See
note 6 supra, The Company argues, without challenge,
that it merely cheeked off dues pursuant to a written
authorization signed by each individual employte, It then
passed the-dues and the initiation fees to the Union as the
contract required, While the Board found that the Com-
pany did not dominate the Union, it found that the Company
accepted the Union's claim of thajority status without ever
questioning it and without asking for or seeing any proof
to substantiate it. In addition it found that the Union's
contractual position had been seeured by agreement with

— the Company without regard to the wishes of the employees,

\

T hie same problem was reeently presented to the Tenth

* Cire uit, and that Court resolved it in acéordance with the.”

approach advocated by the Beard.” The Tenth Cireuit
held that the Board's order **shonld stand unless there is
a showing that the order is a patent attempt to achieve
ends not designed te fairly effectuate the policies of the
Act." ". 261 F, wd at 550. Accordingly, the Board’s order
is affirmed. Petal’
i
Petition for review in 14257 dismissed.
_ Petition for ehfercemént in 14424 granted.
Pany Cuecuil dudqae dissenting: The Roard deeitzion
dreW a dissent Trom Chairman Leedom and Member Mur-
dock. It is set forth in the report of -the case at TY
N.LRB. -——— 1057) where the. problem) is ‘analyzed in-
detail. -T agree-with. the position of the Board dissenters,
whieh may be synopsized in the following language from
their opinion:

[Although an agreement invalid in its inception may '
continue te be invalid throughout its life, Che faet oof
its invalidity and the consequent existence of unfair
labor practices cannot be established metely by proof
that the agreement was being maintained at some point
in time subsequent te its execution, but-eancenly be
established by proof.of the factsssurronnding its exe.
eution in the patst, whieh ereated the initial invalidity.
When as here therefore, the charges: are filed more.
than G menths after the execution of the agreement,
preef of its invalidity and the consequent unfair laber
pragtiess evn only be extablished by reliance on evi-
dence of events which eeeurred more than 6 months
before the filing of the eharge, This Congress expressly
precluded by Seetion 10 (b). 3 =f je eta

W NLRB v. Broderick Woed Prod, @o.. 261 F.2d 54s. Hi!
Cir, 1958). aes Sth ar ;

26) FL 2b at 550, quoting Virginia Elec. & Power Co. vo NLRB
S18 US. S88, HO CTS).

Ia ; | ee

It is well established that in making unfair labor
practice findings the Board cannot. rely ‘solely on
eevents Which occurred more than 6emonths before
the filing af the charges, even thongh evidence as to
such events is admissible for background purposes:
and this is so even though the effeet of sneh events
contipnes to be felt within the Ganonth Sib |

One of the principal purposes of a statute of limitations
ix to bring repose, As stated in NLRB vy, Pennicoven, Lne..
W4#. 2d SLL, 524 (Sd Cir, 1952), the rationale, underlying
sch a statute is te prevent “peaple . being brought to
hook upor stale ceharges.”? ¢ ‘ousistentiy with this, the
? F ‘in. * .
period of limitations in the T aft-Hartlev Aet must haye
been deliberttea_gdopted by Congress to aid in stabilizing
labor rélations by prechtding adversary preceeditizs based
omevents Which had laid dormant for six months, Under
the det Sision of the cot; however, Mere.is no limit what-
oever to the, tipne= thitt mighit yuiss, With countless changes
in the details of relations and obligateons, without a com
pirint being barred, although proof of the true basis of
iHegality of the conduct complained.of lies in the years that
are gone, This seems to me inconsistent with the Con-
gressional poliey expressed: in § 10Cb),

We are not concerned now with the hyvpothetival case
jostulated by the court in whieh a collisive: contract is
net enforeed for six months after its execution se, as to
evady t the statute of limitations, [ think that would pre.
venta different leg: ¥ problem.

e

order will be enforced,

eae ar ag

re a
ek _ APPENDIX B. Bs SE

_ UNITED STATES COURT OF APPEALS"
_ FOR THE DISTRICT OF COLUMBIA CIRCUIT .

~ \e

September. Term, 195s -

No. 14,257 Aran has

go
Loca Lopce No, 1424,. LxternationaL . Associatio§. oF
Macuinists, AFL-CIO : and INTERNATIONAL ASSOCIATION

~

or Macuinists AFL-CIO, Pow

BY Ser at.

ioners,

N mi ri Retations Boarp, Res
No. 14,824
oe

N ATIONAe LABOR RELATIONS Boakp, Pe titiowe v,

ndent,

Vv .

Bryan Maxvkacturine Company, Respondent.
On ‘Petition to Reyiew and Set Aside and on Petition to
Enforee an Order of the Nationai Labor 1 ‘lations Board

Before: PrertyMan, ( ‘hief Judge, and Pany and Burk,

C ‘ireuit Judges. ‘
' Judgment a ,
These gases came on to be heard on the record: Sia the
National Labor Relations Board, and were argued by
counsel, He 7 ee ee ,
Own Coxginegatios Wanmr, it is ordered by. this court
that in Nur 14,257 the petition for review of the order of

©. the National Laber Relations: Board is dismissed ; and

*ys)

It is further Orperep and Apicpcrn’ that in No. 14.22
the petition for enforcement of the order of the National
abor Relations Board in this ease is granted and. the.

i yt | a
“a ean

-

ee

Wy

?

15a

Pursuant to Rule 38(1) the National Labor’ Relatiofs
Board shall within 10 days hereof serve and file a proposed
enforcement decree consistent with this judgment:

\ .

Per Circutt Jupce Burcer.

Dated : February 27, 1959.

Separate dissenting opinion by Circuit Judge Fahy.

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oti 3 ‘4 7

INDEX
Opinions below - ------...-------- apc auniipeaacmsdi das —
Jurisdiction - - --:-- --- Neacenenssencieveedudesestennne 1
Questions presented -_--..-..------- cehakakuudhnweane - 2
Statute involved-- -- -- REP AE Ae ee Mi Pea PE 2
ee cece nap mawenaekers eae ecu Wrace abate 2
i idtntawaectnckdnnhodedecasetdternadl aren sen Oe mee 6
Fl ERE AIS Miphatarereay Cane prendre ene 14
Sat awutwocutecans De daca eda smontcnde dae 15
CITATIONS |
Cases:
2 ig Hiteation of Grain Millers v: ‘National Labor. . .
Relations Board, 197 F. 2d 451_.-..-----.----=--- : §
Axelson Mfg. Co., 88 NLRB 761-_-------- Gian aes a)
Federal Trade Commission ‘vy. Cement Inatitute, 333 U.S.
a ie aE i i a 9

\ Katz v. National Labor Relations Board, 196 F. 2d 411- 8
National ‘Labor Relations Board v. Baltimore Transit :

Co., 140 F. 2d 51, certiorari denied, 321 U.S. 795__- 12°
National Labor Relations Board v. Braswell. Motor ;

airs Freight Lines, 213 F. 2d 208_-__-- Ee I ee Pa 12
Natlonsl. -Labor Relations Board v. Broderick Wood
Products Co., 261 F. 2d 548___.-- Sesakasraie Ria disk © dina ti. 6, 12
National Labor Relations Board v. Brown & Root, Inc.,
ek epee eae Sarasa ae 10
National Labor Relations Board v. Clausen, 188 F. 2d
439, certiorari denied, 342 U.S. 868____+____- Caen + ae
National. Labor Relations Board v. Dallas General
Se OU FOIE «bodice cose scl ecenceacu ens ‘ S
National Labor Relations Board v. Donnelly Garment
nm ee al adh ' -13
Notional Labor Relations Board v. Fant Milling Ge -°
ee I on om Oe el
National Labor Relations. Board v. Gaynor News Co.,
197 F. 2d 719. affirmed, 347 U.S. 17...---5----2-- 7
ae a
503341+-59——1

Sek n
Casee—Continued .. *
National Leber Beletions Beard v. General Shes Co.,
192 F. 2d 504, certiorari denied, 343 U.S, 904__-+_- 9-10
National Labor Relations Board v. ‘Local 404, 208. ¥ :

12 °
10
‘ - 12
National: Labor Relations Board v. item. andy oe
Inc., 94 F.2d 862, certiorari denied, 304 U.S. 576... 13: -
National Labor Relations Board v. Seven- U, ing
oS 4 eee yteey i
National Labor Reldtions Board v. -Shedd-Brown Mfg.
EE Be EE BCs cavncdancnsuacenenncateohed » "412
National Labor Relations Board v. Stackpole Carbon Co.,
> . 105 F. REE re ee PR , 13
National Labor Relations Board v. Swinerton, 202 F, 2d
511, certiorari denied, 346 U.S, $14__.--.....--.-- 13
Paramount Cap Mfg. Co. v. — Labor Relations
~ Be le Os le Pah dente mcenkpecdeqestsccsé

3n he Supreme our of he Waited States

Ocroseg TERM, 1958

re

Loca Lopez No. 1424, INTERNATIONAL’ ASSOCIATION
or Macuinsts, AFL-CIO, INTERNATIONAL Assocta-
TION OF MACHINISTS, AFL-CIO, AND Bryan Manv-
PACTURING Company, PETITIONERS -
v.
National Lapor Ruarsons Boakp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES*COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT

.

BRIEF ‘FoR THE NATIONAL LABOR RELATIONS BOARD In
OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. la-13a)
is not yet reported. The decision of the National La-
bor Relations Board (R. 325-461) is ecrtce at 119

‘ "N.LRB.B. 502.
JURISDICTION

The judgment of: the court of appeals was entered
| on February 27, 1959 (Pet. 14a-15a). The petition —
_*for a writ of certiorari was filed on March 18, 1959.
The jurisdiction of this Court is: invoked under 28-

U.S.C. 1254(1).

(1)

\

.

°

2
QUESTIONS PRESENTED. 7

Within six months of the filing and service of the |

~ ~eharges in this case, the Company and the Union re-
quired employees to join the Union as a condition of
employment. The Board-found that this conduct con-

_ stituted an unfair labor practice. The Company and
the Union predicated their defense to this unfair la-
bor practice on a contract. requiring union member-

_ ship’as a condition of employment, which contract
was entered into over six months before the filing and
service of the charges. The questions presented are: _

1. Whether the-Board was precluded by Section
-10(b) of the Act (which precludes issuance of. a com-
plaint based upon any unfair labor practice occurring
_ “more than six months prior to the filing and service
of the charge) from determining the — of the -
contract asserted as a defense.

2. Whether the Board’s order requiring the Com-
pany ‘and the Union to reimburse the employees for
dues and initiation fees checked off panennt 6 to’ the
contract was valid and proper.

| STATUTE INVOLVED
The pertinent provisions of the National Labor Re-
lations Act, as amended (61 Stat. 136, 29 U.S.C. 151, |
et seq.), are set forth in the Appendix, infra,"pp.

15-17 ,%
| STATEMENT

1. In August 1954, the petitioners (International
Association of Machinists and its Local Lodge 1424,
herein jointly dalled IAM or the Union, and Bryan
Manufacturing Company, herein called the Company)
executed a contract under which the Company recog:

— ap Ns engl
3

- nized the Uniod as the exclusive biitaetatiins of the
Company’s employees at Reading, Michigan: The
contract also provided that all. Reading employees had

‘to join and ‘remain members of the Union, and fur-
’ ther provided that upon receiving ‘a signed authori-

zation from the employee involved” the Cothpany —__——

would deduct his union initiation fee and dues from
his wages and pay them directly to the Union (R.
283-285). At the time the Company executed this

- eontract, the TAM did not in fact represent any of
the employees * in the plant. (Even the members of
the Union’s “Temporary” Bargaining Committee”:
were selected at random by the Company and were not

IAM adherents at the time (R. 151-155, 157, 209).

_ After the contract was executed, however, the em-
ployees joined the Union in acedrdance with the con-
*tract’s requirements. As several employees testified,
they “had to,” they “‘had no other choice” (R. 155- .
156, 113, 135, 203). ae

‘One year later, the Company and the Union re-
newed their contract in all material respects and ex-
tended it to cover @ second plant, opened to relieve
the overcrowded Reading plant, where employment
. had more than doubled. during the year (R. 45, 187-
188, 302-303, Pet. 5). ' .

The Company and the Union have continually. en-
forced the Union membership and checkoff provisions
of the contracts, and every employee who has been
with the Company 45 days or more has had his dues
checked off to the IAM (R. 195, 255-256).

2,An June ‘and August 1955, while the original con-

_ tract was in effect, unfair labor practice charges were \ = .

. 4.
filed and served alleging that the Company and the
Union were requiring employees to join; and remain
_ members of, the Union as a condition of employment,
and that the contract, which. purported to. legitimize
this .conduct, was invalid (R. lid (R. 260-262, 265-266).
———-Foltowing the customary’ proceedings, the Board, af-
. ° firming the Trial Examiner; held that petitioners vio-
lated Section 8(a) (1), (2) and (3) and 8(b) (1)(A)
and: (2) of thie Act (R. 430-437). Section 8(a) (1),
" (2), and (3) provides that employers may not coerce
employees into union membership, or contribute sup-
port to labor organizations, or encourage union mem- |
* bership by: diseriminatory treatment of employees;
** and Section 8(b) (1)(A) and (2) provides that un-
ions may not coerce employees into becoming mem-
bers or cause employers to encourage union member-
ship by discriminatory treatment of employees. In .
_ holding that- petitioners violated these sections, the
Board rejected the contention that petitioners had-a
lawful contract requiring union membership in ac-
cordance with the proviso to Section 8(a)(3) (infra,
pp. 15-16). The Board held that the contract failed
to meet the requirements of the statute as the Union
did not represent any employees at the time it was
executed, and that implementation of the contract
was therefore violative of the Act (ibid.).- In. so
holding, the Board, with two members dissenting,
_ held that the six-months limitation proviso of Section
10(b) operated to prevent the Board from finding 7
that the execution of the contract was an unfair labor
__ practice but did not preclude the Board from relying
on facts ‘existing at the time the contract was ex-

' "7 « & he . - YA

5 7
ecuted to show that the -contract was invalid and no: .

- defense’ to unfair labor practices committed within
the six- -months period: .

The Board ordered the Guineng andl the LAM+to——_
~~ cease and desist from giving « effect to their’ contract, ©
and directed the Company.to withhold recognition:
from thé TAM, unless and until it was certified as the

bargaining representative of the employees (R. 437-
440). The Board further ordered the Company and
the IAM to cease and desist from entering into, main-
taining, or renewing any union _security-agreement,
which failed fo meet the requirements of Section.
8(a) (3), and, from in any like or related manner in-
vading employee rights ander Section 7 of the Act
tibid.). The Board also ordered hoth parties to stop |
— giving effect to any checkoff cards, and jointly and
severally to reimburse employees for any dues or
initiation fees checked off pursuant to any agreement
between the parties (R. 441-442).' Finally, the order

directs both parties te post appropriate notices (R.

439-442, 457-461).

3. The court of appeals, with Judge. Fahy iii
ing, sustained the Board’s order (Pet. la-13a). The
court observed that, while the contract was executed
outside the limitations period, its enforcement within.
the period by compelling employees to join the Union .
was an unfair labor practice cognizable by the Board,

# The Company's liability for reimbursement of dues and ini-. °
tiation fees commences December 10, 1954 (six months prior
_ to the service of the charge upon the Company), and_ the
Union's liability commences February 8, 1955 (six months be-
fore service of the charge upon the Union) (R. 442, Sas ai

ne

a a8

6 ye aS
for Ahe six- nioiith prov iso creates a period of limita-

‘tions, not a rule, of. evidence (Pet. 6a-Ta). . Noting:
that the compulsion. of union membership was regu-

larly repeated within the six-month period, the court

held that the Board could look to events prior to, the

‘six-month period to detérmine whether conduct within ’
‘that period was Jawful ( Pet, 8a). —As the Board’s

‘order did not depend upon any legal conclusion with —

respect to events outside the. statutory period, the
court. held that the Board did not violate tle limita-
tions, proviso by drawing upon facts occurring over
six months before the charge (Pet. 10a-1la).
Finally, the,court below sustained the Board’s order

directing the reimbursement of dues, noting, in agree- |
ment with.the Tenth Cir¢ ‘uit, that the order ‘‘should

“stand unless there is a showing that [it]:is a patent

- attempt-to achieve ends not designed to’ fairly effee-.

tuate the policies ofthe Act."’ National Labor. Rela-—
tions Board Vv. Broderick Ww od Products Co., 261 F.
2d: 548, 559. : ANG |
ARGUMENT ©

1. The holding of: ‘the court below that the Board

could: properly find that a contract, executed over six

_ months before the char ge, Was invalid and furnished
*\no- defense to unfair labor practices committed w ithin

six months of the charge accords with the holdings of
other courts and, pr esents no important issue war-
ranting review. ?

Petitioners do not deny that the contrat when exe-

cuted failed to satisfy the statutory requirements for

such union security-agreements. However, relying on
Section 10(b) which provides that. “no complaint

et 7

shall issue based itpon any unfair labor practice oe-

cur’ ore than six months prior ‘to the filing [and

serv ice] of the charge,” they contend that the Board -

is barred from firtding invalid their union security
agreement executed over six months before the charge.
\ But the statute pree Index the. Board only from finding
an ‘unfair labor’ practice Soyer six montlis before the
charge; it does not preclude using evidence..over six
months old to establish violations within: the «six-
month period. Here the violation—compelling em-
ployees to. join . the Union—oceurred. within ® six

therefore inapplicablé. Petitioners, claiming that
they could: lawfully compel union, membership under
their contract, in effect urge it as a defense to what is
otherwise a plain violation of. the statute. Nothing
in the limitations provision, however, prevents the
Board from showing the. woes atid .of- the contract
asserted as a defense.” : is

This view of the- limitations proviso has heen

adopted also in the only two. other -cases-which have

taised this problem in the twelve-year history of the
amended Act. National Labor Relations Board v.

Gaynor News Co., 197 F, 2d 719, 722 (C.A.. 2),

affirmed, 347 U.S. 17; Katz v. National Labor Rela-

' #In characterizing the contract as .a Hd fense” we do not
mean to imply ‘that, the burden of proving validity of the
agreement is on the parties thereto. Admit
has the burden of establishing the facts which show that the

agreement was invalid. In this case. however, \the proof’ of ©. °

invaliditw.(ie. 'ack of IAM majority at time of execution)

_ i8 So oyerwheh .nag that petitioners conceded the point in the. °

court: shelow: fP.t. 2a) and do not dispute it here.

ly the Board |

- months of the charge, and. the. limitations proviso is.

8 os

_ tions Board, 196 F. 2d 411, 415 (C.A. 9).2 See -also

* Paramount Cap Mfg. Co. V. Natibnal Labor Relations
Board, 260 F. 2d 109, 112-113 (C.A. 8). Contrary .
.to petitioners’ contention (Pet. 14-15), the — in

’ American Federation of Grain Millers v. el
Labor Relations Board’ 197. F.2d 451; 454 (CLA. 5

does not.conflict with the’ decision below. In Gini
Millers, to have found an unfair labor prac tice within
the statutory period, the Board ‘would have had to

. . make an express’ finding that another unfair. labor
practicé. had -been committed outside the six-month
period. See also National Labor Relations Board v.-
Dallas General Drivers, 298 F. 2d 202, 704 (C.A. 5).
Tn both Grain Millers and this case, unfair labor prac-
tices were committed outside the statutory period, but

~in Grain Millers that.legal conclusion was necessar x
to finding a violation: within the period, whereas in
this case no such legal conclusion need be drawn. with
respect to the earlier conduct.’

In trying to bring themselves within the “words”

and “purpose” of the limitations proviso (Pet. 17),

petitioners - present the case as * though, the unfair
* Petitioners would distinguish those cases on the ground that :

the. invalidity of the union security agéeement was provable

. by a fact existing within the six-moniin period, namely, the
lack of a certificate of authorization (Pet. 16, n. 4). This dis-g 4
tinction, if such it be, is not reflected in the rationale of those

CASES, Assuming the distinction. the instantacase stands as. the
. only one to‘raise this issue.
*Petitioners suggest’ that the instant vase is : elated to 7
National Labor Relations Board v. Fant Milling Co. No. 482!
-. this Term (Pet. 13-14). No conflict is claimed: the relation-
ship is metely that both cases concern the limitations provisn,
but in widely ‘different application.

“4 - ~ =

labor practice found. was the execution of the cubaiieat:

In fact the unfair labor practice was the compelling
of union membership within the six-morith . period,
to which the invalid contract furhished no defense.
The purpose of the limitations proviso was not to

~ -vxelude ‘evidence but to limit the period of liability.
* Compare Fedéral Trade Commission v./Cement In-*

stitute, 333 U.S. 683, 705, referring: to “the estab-

-lished judicial rule of evidence that testimony of —
prior or subsequent transactions, which for some.
reason are barred from. forming the basis‘ for a:

suit, may nevertheless be introduced: if it tends

reasonably to show the purpose and character of the

particulay transactions under” serutiny.”’ - See also
National Labor Relations Board y. -Clausén, 188
F. 2d 439, 443 (C.A. 3), certiorari denied, 342 U.S:

868 ; ° National Labor Relations Board v: ‘General
. Shoe Co. 192 F. 2d 504, 507 (C.A. 6),-certiorari —

* The tourt in Clausen expressly approved the Board’s hold- :
- Ing in Agelson Mfg. Co., 88 N.L.R.B. 761, 766, where the -

Board stated :
_ “* * * Section 10(b) enacts a atatute* of limitations and not
a rule of evidence. It forbids the isstiance of complaints and,

consequently, findings of violation of the statute in conduct_not-
within the 6 months’ period. But it does not * * * forbid .
_ the introduction of relevant evidence bearing on the issue as |
to. whether a violation has occurred @uring the 6 nionths’ .
period. Events obscure, ambiguous, or even meaningless ©

when viewed in isolation may, like the component, parts of
an equation, became clear, definitive,.and informative when
considered in relation to other action. * * * Congress ‘can

scarcely have intended that the Board, in the performance ©

of its duty to decide the validity of conduct within the, 6
months" period, should ignore reliable, probative, and sub-
stantial evidence as to the meaning and nature of the con-
duct. Had such been the intent it seems reasonable to assume
that it t would have been stated.” tb

. 10 :

denied, 343 U.S. 904; Paramount Cap Mfg. Co. v.
National Labor Relations Board, 260 F. 2d :109, 112- -—
113 (C.A. 8); National Labor Relations Board Vv.
Brown & Root, Inc:, 203 F: 2d 139, 145-146 (C.A: 8);
_Sunertor Engraving Co. v. National Labor Relations
Board, 183 F. 2d 783, 791 .(C.A. 7), certiorari ‘denied, .
340 U.S. 930. Petitioners, in "short, overlook ° the:
_ settled distinction between statutes of - limitations, © -
which preclude liability for past’ conduet, and ordi-

- nary principles governing’ the weight. of evidence,
under .which remoteness in_ time” affects probative
value but not admissibility. Cf. People v. Cuevas,, 18

- Cal. App. 2d 151, 63 P. 2d 311, 312; Purviance v.
_ State, 185 Md. 189, 44 A. 2d 474, 477-478,° |

» Petitioners’ reliance on the legislative history of
certain appropriation riders (Pet. 19-22) is equally .
unavailing.’ In the first place, petitioners eoncede-
_ (Pet. 24-25), and mumerous cases . establish,’ that -
. where the union shop agreement is invalid on its .
face, the Section 10(b) limitations: ‘period is inappli-
cable. Under the appropriation riders relied on by
petitioners, however, the agreement would be immune
to challenge even where its invalidity was patent.

is For this reason petitioners’ aHeged concern over the fate of
. collective bargaining agreements (Pet. 12-13), in an attempt
to create an aura of importance around. this unique situation,
would, appear. to .be insubstantial’ As “we have seen, this
problem has not troubled either the Roard or the courts. In
general, existing union security’ contracts may be presumed
to. be valid, and the burden of proving their invalidity would
rest on.the Board, subject to ordinary rules of evidence con.
' cerning events remote. in time.
"See, é.g., National Labor Relations Roiel *. F.,H. McGraw
“45.8 Con, 206 F. 2d 635, ae 5) SoS CES, ts

eae | : fe 11 ay Soa oe
Thus petitioners” own concession, required by settled
authority, -establishés* that the early appropriations
riders on which they rely had far broader sweep than
Section 10(b). Second, the petition overlooks the —
National Labor Relations Board. Appropriation Act,
1948 (61 Stat. 276), which was enacted contempo-
raneously ‘with ‘the Taft- Hartley amendments. That
“Appropriations Act expressly provided that the limi- -

*. tations period Was applicable only to contracts be-

* tween an employer and a-union representing a ma-
dees) of his employees. That provision, added as a
‘rider’? while ‘the: Appropr iations’ Act was before
the Senate Committee (ef. Pet.-20, n. 7), was the _
‘rider’ to the current appropriations bil’? which |
Section °10(b) rendered unnecessary . (Pet. 19-20;
. see 93 Cong. Ree. 4499).*> Thus, it is petitioners’ con- .
tention, and not the Board’s, which attributes ab-
‘surdity to Congress. (Pet. 22-23), . Petitioners would
“have it that Congress at 61 Stat: 276 enacted an ap- -
propriations rider. which granted immunity: only: to.
contracts executed with majority unions, and ‘at 61
Stat. 136, 146, enacted a statute which granted ‘im-
munity. to contracts regardless of the union ’s majority
_ Status. . 3 i, feq aT Nee

2. Having found that petitioners unlawfully com-
pelled. all: the employees to. join/ the Union as a con-

ae ay peo a

‘The “rider” was {Stroduced by Senator Ball, w ho was ‘also
_& member of the committee reporting out the Taft- Hartley
_ amendments. 93 Cong. Rec. 4499. When the Jatter committee |
referred to a “rider to the curre _ appropriations bill” (Pet.
. 19-20), it presumably. referred to |

_would have referred to the then!

(60 Stat. 698).

existing nPpropreriqe act

he Ball ‘rider: otherwise it ° .

I
'

dition of employment, the court below held that the

_- Board’s remedy for the unfair labor practice, includ-

ing the refunding of.dues which the Company with-
held from the employees and paid-to the Union under. .
the checkoff prov isions of the contract, was within the
Board’s broad discretion. Virginia Electric Co. v.
National Labor Relations Board, 319 U.S. 533, 539-
540; National Labor Relations Board v. Seven-Up :
Bottling Co., 344 U.S, 344, 346-347. Petitioners’:

; suggestion that this is.a ‘“‘reeent innovation” (Pet.

33). is wide of the mark, as similar orders have been
approved in a host of cases.’ There is no conflict of .
authority and none is claimed.

. Petitioners’ contention ( Pet. 33) hat the reim-
bursement remedy is ~ .ed to cases of company-
_ dominated unions has been ‘rejected by every court of
appeals which has considered the question. See cases
in n-9, infra; ef. National Labor Relations. Board v.
Braswell Motor Freight Lines, 213 F..2d 208, 209
_ (CA, 5); ; National Labor Relations Bo d v. Shedd-
Brown Mfg. Co., 213. F. 2d 163, 170-171 .(C.A.:7).
The validity of the reimbursement ordéy turns on
whether the employees were compelled to~jomn™ the
Union, not on. whether the Union was “dominated”
pr merely “assisted.” ‘Similarly, petitioners’ argu-
‘ments that the employees derived benefits froni union

¥ * Virginia Electric, supra; National Labor Relations Board

| ¥. Broderick Wood Products Co.. 261-F. 2d 548, 558-559 (C.A.

j OE National Labor Relations Board vy. Parker Bros. & Co.

i

209 F. 2d 278, 280 (C.A. 5); National ‘Labor Relations Board
v. Local 404, 205 F. 2d°99, 104 (C.A. 1) :°National Labor Re-
lutionx. Board , Baltimore Pransit Co., 140 F, 2d 51, -57-58
(C.A. 4), certiorari denied, 321 U.S. 795.

el
13 |
. Tepresentation and that some of them might have 7
joiried the Union voluntarily (Pet. 30-32) do not dis-. -
tinguish this case from the others in which this_rem-
edy has been judicially approved. Apparently peti-
tioners would limit reimbursement to those employees
who testified they felt coerced. But _employee testi-

mony on this issue would be of little worth (cf. Radio
Officers Union v. National Labor Relations Board, 347

U.S. 17, 51; National. Labor Relations Board v. Don- »

nelly hiomeis Co., 330 U.S. 219, 231), and in any
event the burden rested upon petitioners'“to disen- --
- tangle the consequences” of’ their unlawful conduct. .-
National Labor Relations’ Board v. Remington Rand,
Inc., 94 F, 2d 862, 872 (C.A. 2), certiorari denied, 304 -
US. 576; see also F. W. Woolworth: Co. v. National
_ Labor Relations Board, 121 F. 2d 658, 663 (C.A. 2);
National Labor Relations Board v. Swinerton, 202 F..
‘2d 511, 515-516 (C.A, 9), certiorari denied, 346 U.S. ix
814; National Labor Relations Board v. Stackpole .
Carbon Co., 105 F.2d 167, 176 — 3).

14
* coNCcLURION
For the reasons stated above the petition as writ
' of ceytiorari should be denied. |
- Respectfully submitted. ~ fea
. ar ee J. Lee Ranxn, —
“, Ze ~ Solicitor General.
JEROME D. FENTON, .
General Counsel, -
‘Tuomas J. McDermort, j
Associate,General Counsel,
Dominick L. Manou, ~
Assistant General Counsel,
‘FPreperickK U. REEL, .
Attorney, ;
National Labor Relations Board.

Aprit 1959.

APPENDIX”

The relevant provisions of the National’ Labor
Relations Act, as amended (61 Stat. 136, 29 U.S.C.
151, et seq.), are as follows: ee a,
Sec. 7. Employees shall have the right to

self-organization, to form, join, or assist labor —

organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
‘purpose .of collective bargaining or other _
mutual aid or a aps -and shall also have. —
the right to refrain from any. or all of such
activities except to the extent that such right
may be affected by an agreement requiring
membership in a*labor organization as a con-
dition of employment as authorized in section
8(a) (3). | eee
- §Sec. 8. (a) Ftshall be an unfair labor prac-
_tice for an employer— ° . |
. (1) to interfere with, restrain, or coerce
» employees in the exercise of the rights guar-
anteed in section 7; Pk aS

(2) to dominate or interferé with the forma-
tion or administration of any labor organiza-

* _.tion or contribute financial or other support
Sm *:* |
= * * * . *

(3) by discrimination in regard to hire or
tenure of employment or any term or condition
of employment’ to encourage or ‘discourage |
membership in any-glabor organization: Pro-
vided, That nothing in this Act, or in any other
statute of the United States, shall preclnde an

‘ employer from making an agreement /with a
- labor organization (not established, maintained,
or assisted by any action defined in section 8(a) -

| (15) cae,

\°

16

of this Act as'an unfair ‘labor practice) to re-
quire as a condition of employment member-
ship. therein on or after the thirtieth day fol-
lowing the beginning of such employment or
the effective date of such agreement, whichever
is the later, (i) if such labor organization is _
the representative of the employeés as provided
- in section 9(a), in the appropriate collective- —
bargaining unit covered by. such agreement
_ when made; and has at the time the agreement -
was made. or within the preceding twelve
- months received from the Board a notice of
er — —— 9 (f), (8), a. 7 4

(b) It aun be an unfair labor practice for a
labor organization or its agents— ,

(1) to restrain or coerce (A) employees in
the exercise of the — es in section

a
+. as *- a .

(2) ran cause or attempt to cause an employer
to discriminate against an employee in viola-
tion of ‘subsection (a)(3) or to discriminate:
against an employee with respect to whom
membership in such organization has been de-
nied or terminated 6n some ground other than —
his failure to tender the periodic dues and the
initiation fees uniformly Yequired as a ‘condi-
‘tion of | acquiring ‘or retaining. member-
er ; oe
| ; @ 7 >

Sec. 10. (b) Whenever it is charged that
any person has engaged in or is engaging in —
any such unfair-labor practice, the Board, or
any agent or agency designated by the Board
- for: such purposes, shall have power to issue
. and cause to be served upon such person a com-
plaint stating the charges in that respect, and
containing a notice of hearing before the Board
or a member thereof, or before a designated

17

agent or agency, at a place therein fixed, not.
less than five days after the serving of said
complaint: Provided, That no complaint shall
issue based. upon any unfair labor practice oc- |
curring more than six months if spon’ to the filing
of the charge with the Board and the service
of a copy “thereof upon the person. against
whom such charge is made * * *.

(c) The testimony taken by such member,

' agent, or agency or the Board shall be reduced ~

to writing and filed with the Board. There- .
after, in its discretion, the Board upon notice |
may take further testimony or hear argument. /
If upon the preponderance of the testimony
taken the Board shall be of the opinion that
any person named in the complaint has engaged
_ in or is engaging in any such unfair labor prac-
tice, then the Board shall state its findings of
fact and shall issue and cause’ to be served on
such person an order requiring such person to
cease and desist from such unfair labor prac-
tice, and to take such affirmative action includ-
‘ing reinstatement of employees\with or without
yo pay, as will effectuate the ‘policies of this.
ct: 7hi

©. S. GOVERNMENT PRINTING OFFICE 1988

Page -

INDEX
Interest of the AFL-CIO. igo hentai nied

-I. The Board’ s Brown-Olds Remedy Is Based on an Un-
reasonable Inference That All Union Dues and Fees
Collected Pursuant to an Hlegal Union-Security or Hir-
ing Hall Arrangement Constitute Coerced Payments .... .°3

A. Lack of Reasonable Basis or of Historical or Eco-

nomic Data to Support Inference of Coercion .....,...... ‘3
B. The Board’s Irrebuttable Inference; The Doctririe. of
Pew Bho GINO ackocicicnsectceeectasicisesnastuaeaniiaad 9

II. The Board’s Prown-Olds Mass Reimbursement Order is

’ an Inappropriate Remedy, Not Adapted to Particular
Circumstances, Oppressive in’ its Operation, and not -
Caleulated to Effertuate the Policies of the ‘Act ........ .. 14
A. Oppressive and Capricious Operation of the Remedy 14

_B. Punitive Use of the Remedy ..2................::c00000+00 clisaithdes 20°
Comelasion ......:....-...sorseeieeeees ECCT R SRD ee 1 Lae oman Sa
: Citations

_ CasEs:

American Steel Foundries v. Tri-City Central Trades Council,

Be BBG. cnisrerrssssrnientsinmnniame 8
Anchorage. Businessmen’s Assn., 124 NLRB No. 72 (1959). .. i, 12.
Blue Flash Express, Inc., 109 NURB 591 (1954) ..00..........0..0 12
Brown-Olds Plumbing & Heating Corp., : Ast

FF ee eee, ee 1, 5, 7, 12, 18, 19
Consolidated Edison Co. v. NLRB, 395 U.S. 197 .......0.00.-- 4, 22, 23

Del E. Webb Construction Co. v. N LRB, 196 F. 2d 841 (8th
REG TRIED cdite:

, : -. & Page
ne al Lodge No. 1121, International. Association of. Machinists
» NLRB, 264 FP, 2d 575 (1), COC Ir, IIIS cease 2
dia 1976, Brotherhood ‘of Carpenters v. NLRB, 357 U.S. 93 21
Los Angeles-Neattle Motor Express, Mei, ae sa NLRB No, 205

GRU D elrercscvesn inipsnctivorsrdiyvovnsenstgnronsiutelveeteprnsdbvietsitetttlepingrertvesbeien 21
Lummus Corp., NURB C ase No. 4-C Bae ntermediate Ro-
UE, SRE TEL. SUMUMED crvusccpepaneetumedvestuvseesimpastestnies Pa ee Th ES 10,11 -
Mountain Pacific ihe Associated Gene ral C ont rac tors, r19
FORE OE SUED, cikiAinsicscsnennicenstiselsniiocagarmiceinninlanenh 15, 20
‘Nassau ‘tnd Suflstk Contravtors’ eIssn., 123 NLRB No, 167
RIE :nicadtlonnuapeoieaienesnenienssseeneyussate sR es a FF
N LRB vy, Américan National Insurance ('0,, 343.U.S, 395......... M4
NLRB vy: District 30; United Mine Workers, 355:°U.S, 453 ........ 15°
NLRB vy. Donnelly Garment Co., 330 US. 219 wipes sive ae
NLRB v. Mackay Radio and Telegraph (o., 304 US. 333.000... 15
NLRB vy. Mountain Pacific Chapter, Associated General rm
tractors, 44 LRRM 2802 (9th Cir. 1959) 20, 21, 22
NLRB vy. Seven-Up Bottling Co., 844 U.S. 344 cocci 4,18
‘NLRB vy. Swinerton, 202 F. 2d 511 (9th oN: 1953), certeden_
a eal cai
News Syndicate Co., 122. NLRB No. 92 1959): EE, Ce 19, 21
Phelps-Dodge Corp. v. NLRB, 3Y8 U.Se VTT citecceescscssssteeesseeee a
Radio Officers’ Union v. NLRB, 347 U.S ~ ee ee E 3, 4, 9, 13,14
Republic Steel Corp. v. NLRB, 311US $7 deena Delle aieteibinesats " 22, 23.
Saltsman Construction Co., 123 NLRB.No. 142 (1959) .... 10, 11, 12.
Standard-Coosa-Thatcher Co., 85 NLRB 1358 CIDED) - ccccccceoseccess 12

United States Steel- Corp. re. American re Division), 122

"as, NEGREE No, 155: 1959) >. cisisse.e.seoyedsonrstbigbecttovedsensvskieenstevsenn So ae

United States Steel € orp. (American Bridge Division), NURB
Cases Nos. 4- satan? 4-CB-373 (Order Denying Motions, ,
“ May 4, ADGD) «cs consqiisnsesforneosisdiecenzonivesvonsvothvnnesepsocetngsweceeisecovsstbe 10, 12

Virginia Electric and Power Co. v. NLRB, 319 U.S. 538 ........5, 6,7

; Western Union Tel. Co. x. NLRB, 118 F. 2d 992-(2d Cir: 194) *

Statues: \

National baer Relations Act (49 Stat. 454- 455) :
Section We) (f) wSaschchavenee Maree tarsi Sha tenga bre ee +

- National saknesBlitpionn: Act, as + amended (61 Stat. 136, 20

Page,

U.S.C. §151 et seq.) :

et ee Tisarerscdoticoeyen hewides ca es aetl ss sihacinlion ot 17
+ Section’ (a) (3B) «....csrccrccessere fF DNS RENT TOMO CE RS)

Sectio po RS ISO eeee on Suh uiebteeed te ake ae

Section -9(£), (2), CMY” s.ccceSecceeee. segriticlevose SO a ee REE Sh
* Gectidin 1O(D) wsecscclesecmressseesenesseereserssnsntenssseteneenes peaabiats a ae 2

Section 10(e), (f)”:. Peteeate et tome We eames fr 4,9

” Ue
.MISCELLAEOUS : . ; “ay )
Brief for the NLRB, Local 357, International Gitietull a .

Teamsters v. NLRB, No. 14,794 (: A a «Sede reer: 12
Brief. for the NLRB, N LEB v. News Syndicate Co., No. 25, 496

(2d Cape) lscerarseeeeetedseteceesesbentersetearsndaes eeteetsesseneerensgnennaetnnccssiettes 19

Commons and. Associates. History of Labor i in the United States

© (1918, 1985) -..ceeciissececessesgreocsssseageoesassaessestecqersenseessnesccsssseserserseees
Dulles, Labor in Aimerica (1949) ...cccsspssssscssesssiessseesessstssssnseeseet ... 6, 8°

_HLR. Rep. No. 245, 80th Cong., Ist OR ° scscrenhamanvtingan Pea e eas age
H.R. Rep. No. 510, 80th Cong., eee eos. 4
Millis and Montgomery, The Economics ud Labor: Organized _

Labor, vol. ITT (1945) .......sscccccssscsccssssesesvesssesesebensesesssesensscseasees ‘6,8
NLRB Thirteenth’ ‘Annual Report (1948) 02.2... Meats “/9
NLRB Fourteenth Annual Report (1949). ........0000: Lntewed | > ae

_ | NLRB Fifteenth Annual Report (1950) ....0:...t.ccceweenin 9
- » NLRB Sixteenth Annual Report (1951) jel Re Nit SLB Bed alae ee “9
' NLRB General Counsel, Address: at Rutgers U niversity, Se ep
, tember 30, 1958 (mimeo. COPY)... terete teens 22
} NLRB General Counsel, Address at. the Southeast Trade ~
position, March 21, 1959 (mimeo: copy) ,:...... eee —21, 22 _
- .NLRB General Counsel, Letter dated February “9: 7958. (6...
‘CCH Lab. Law Rep. 950,060): ..iv....ccsccscssesscectersegeeegeregeryenesizne Sl
- NLRB General Counsel, Lettér dated ‘August 19, 1958 (5 CCH:

Lab.. Law. Rep. 150,103) .....:....ssecsssetisssssedecseseesteseeeeseeesereneeeerers . 15-
Rayback, A History of American Lavor (1959)... Bee
Taft, The A, F. of L. in the Time of Gompers (1957) Bik ecshecn ae

- ° *
1 :

~ IN THE

Supreme ‘Court of the United States

OCTOBER TERM, 1959
NO.44 C
LOCAL LODGE NO. 1424, INTERNATIONAL
ASSOCIATION OF. MACHINISTS, AFL-CIO,
‘INTERNATIONAL ASSOCIATION OF
>. MACHINISTS, AFL-CIO, AND
BRYAN MANUFACTURING CO., Petitioners,

v. .
NATIONAL LABOR RELATIONS BOARD

—_—————

ON WRIT OF CERTIORARI TO THE UNITED STATES |
COURT OF APPEALS FOR THE DISTRICT OFr
COLUMBIA CIRCUIT

- BRIEF FOR THE AMERICAN FEDERATION OF |
LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS AS AMICUS CURIAE

INTEREST OF THE AFL-CIO,

This brief amicus curiae is filed by the American Federa-
’ tion of Labor and Congress of Industrial Organizations
(AFL-CIO) with the consent of the parties, as ' provided if
Rule 42 of the Rules of this Court.

The present case gives this Court its first opportunity to
appraise the so-called Brown-Olds remedy’ of the National
_ Labor Relations Board. Typically,-this remedy requires the

_ ' The name’comes from Brown-Olds Plumbing & Heating Corp.,
115 NLRB 594 (1956), the first ¢ase in which the Board extended
the mass al remedy to a situation not involving a company-

_ dominated or company-supported union.

2

reimbursement of all union dues and fees collected from
employees pursuant to a union-security or hiring hall ar-
rangement which the Board determines ‘to be illegal. The
practical implications of this new doctrine are staggering.
. Severe financial hardship, and in some instances financial
ruin, is-the imminent prospect for.many locals affiliated
‘with member unions of tle AFL-CIO. Especially affected
are unions engaged in the building and construction tPades,
and other unions operating hiring halls for employees. The
AFL-CIO is therefore vitally interested in placing before
this Court .an outline of the scope ‘of the Brown-Olds
_* remedy and its impact on labor unions generally. Not all of
-, the doctrine’s raniifications are brought to the fore in this .
particular case. This is a further reason why the Federa-
tion ‘has a special interest in demonstrating to the Court
that the formulation and application of this remedy by the -
National Labor Relations Board, in this case and in many
other similar eases for, which the decision here might be
controlling, is a patent abuse of administrative diseretion.?

The Board’s Brown-Olds remedy poses two related, but: *
logically distinct, issues: first, the‘extent of the power pos-

’ ? The Federation is no less interested in seeing the petitioners
prevail in their contention, that the six-month period of limitations
contained in section 10(b) of the National Labor Relations Act -
‘bars the issuance of a complaint in cases such as this. We do hot
_ tfeat: this issue, however, because we feel that its implications are
“amply exposed by the case before the Court, and that any argu-
ments we might add to pe’ ‘.oners’ would. be merely cumulative.
We fully- endorse petitioners’ view that the decisions of the Board
- and of the Cdurt of Appeals below on this point subvert the phil:
osophy of the limitations period as an instrument of repose, and
that, they fly in the face of the Congressional poliey of *‘stabiliz
ing labor relations by precluding adversary proceedings based .on
events which had laid dormant for six months."’ Fahy, .J., dis-
senting below, Local Lodae No. 1124, International Association of
Machinists v. NLRB, 264 F. 24575, 583 (DOC. Cir: 1959).

'.. sessed by the Board to “support pivotal assumptions” with
administrative “expertise alone,” and secondly, the breadth
of the discretion lodged with the Board to frame appropri-
ate remedial orders. We submit that the -Brown-Olds
remedy stands condemned when viewed in either light.

The reimbursement remedy is not bottomed on reason- |
able inferences regarding the facts. It is based-on a per se
doctrine of inherent coercion, which is unsupported by and
indeed contrary to historical and economic data, and which
is accompanied by a-blithe refusal by the Board even to
‘consider direct evidence contradicting its fallacious as-
sumptions. Furthermore, the remedy itself constitutes an
abuse of the Board’s diseretion to frame appropriate
orders. It amounts to a mechanical application of a formula
that fails to take account of the infinite complexities of -
Situations in the labor-management field. Its operation is
oppressive and capricious, causing only slight inconven-
ience to sonie unions and financial ruin to others. : Finally,
the remedy is essentially punitive rather than remedial,
being likened even by Board personnel to a “meéat-axe” or

a “big stick” with which to enforce Board ‘mandates en —
hiring halls.

I. The Board's Brown-Olds Is. Based On An Unreason-
able Inference That All U Dues And Fees Collected
Se ee eee ov Soong, ee Ae
rangement Constitute Coerced Payments. .

A. Lack or Reasoxaste Basts or or Historica or Eco-
nomic Data To Suprort INrereNce oF. Coercion

We do not contest the existence of the Board’s power to

draw “reasonable inferences from,proven facts.” Radio

Officers’ Union v. NLRB, 347 US. 17, 49. We do not contest

the Board's ign to use its. “cumulative: ti cael in

*See Harrell v. PCC, 267 F. 2d 629, 682 (D.C. Cir. 2 a).

pte ee - .@

fashioning a ready, so , long as ‘there i is exercised due “re-
gard to circumstances which may. make its application toa
particular situation oppressive * © ©” NLRB vy. Seven-Up

Bottling Co.,.344 U.S. 344, 349. At the same time we con- -

sider it beyond cavil that the Board cannot indulge in “mere
conjecture” or “extravagant and unwarranted assumptian.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 238."Board

inferences are to be “reasonable,” as this Court stated _

eight separate times in the course of four pages of its

‘* opinion in Radio Officers, supra, 347 U.S. at 49-52.-

The legislative history of the Taft- Hartley Act empha-
sizeg the concern of Congress that‘the courts should apply
a check to any unreasonable inferences on the part of the
Board. The role contemplated for reviewing courts under

the 1947 amendments to section, 10 of: the National Labor

Relations Act * was spelled out in the following terms in
the House Conference Report: :

ee [the courts] will be under a duty to see that
‘the Board observes the provisions of the earlier see-
tions, that it does not infer facts that are not supported
by evidence or that are not consistent with evidence. in
the record, and that it does not concentrate on one ele-
ment of proof to the exclusion of others without ade:

quate explanation of its reasons for disregarding or
Secceditias the evidence that is in conflict with its
findings. The language also precludes the substitution
of expertness for evidence in making decisions.”

— _——_—_

*See. 10(e) -of the original National Labor Relations Act, 49
Stat. 454, provided in part: ‘*The findings of the Board as to the
facts, if supported by evidence, shall be conelusive. "* See. 10(f)

was sithilarly worded. ~
See. 10(e} of 2 National Labor Relations Act, as amended, 61
Stat. 148, 29 U.S.C. § 160(e), prov ides in part: ‘‘The findings of

the Board with eB to questions of fact if supported by sub-
stantial evidenee on the reeord considered as*a whole shall be
conclusive. ’ * See. 10(f) is similarly worded.

SHER. Rep. No. } 510, 80th Cong., Ist Sess., p. 56. te

In Brown-Olds Plumbing & Heating Corp, 115 NLRB
594 (1956), the Board ordered a union to reimburse all dues
and assessments collected under a. closed-shop contract.
Although the evidence disclosed only one named individual -
who had been disé¢riminated against, the Board justified its
sweeping order covering all employees with the flat asser-

: tion: “Dues and assessments here »ollected constituted the
price these employees paid in order to retain their jobs.”
Td. at 601. Primary reliance for this decision was placed
on Virginia Electric and Power Co. v. NLRB, 319 U.S. 533,
where this Court approved a Board reimbursement order
against a company in 1943. rane

Virginia Electric was a far different situation. Coloring -
every other aspect of the case was the fact that it involved
a company-dominated union, “a type of organization,” as °
expressly noted by this Court, “which Congress hax cliarac-
terized as detrimental to the interests” of employees and
provocative of industrial unrest.” 319 U.S. at 544. The com-
pany-dominated union had entered a closed-shop and com-
pulsory check-off arrangement with the company, whereby .
payments went “into the treasury of the Company's crea-: -
ture to accomplish purposes the. Company evidently be-
lieved to be to its advantage.” Ibid. it

Mr. Justice Frankfurter, concurring in Virginia Electric,
underscored the need for evidence of coerced payments in «
order to support the refund order. He distinguished
Western Union Tel. Co. v. NLRB, 113 F. 2d 992 (2d Cir.
.1940), where Judge Learned Hand had refused to enforce a

_ reimbursement order even against a company-dominated .
union, on the ground that in Western Union “there was no
evidence that all those [employees] who asked to'‘have their

.. Wages stopped, did so in any -part because they were
coerced.” 319 U.S. at 545, quoting 113 F. 2d at 997. In
Virginia Electric, on the other hand, obseryed M r. Justice

. ‘Frankfurter: © | >

6

““e * * not only did it. [the Company] foster that com-
pany union, it ‘foisted me mbership iv the union upon all
its employees. The Board had a right fo find that meme
bership in the union, which the employees had no power

to reject, equally denied the employees the power to
reject the costs of that membership.” 319 U.S. at 545.
(Emphasis supplied: )

Thus, there’ were two salient teeters in T jrgithha Electric
which, taken together with the closed-shop ond compulsory

' check-off, arrangement, justified the Board’s inference or
. conclusion that the employee payments ‘were coerced: —

1._ The union was company-dominated.” Congress, as the -
Court was aware, had recognized the evils of this institu-
tion. And. labor history was replete with the shortcomings
of company unions, with their impotence in times of stress
and with their frequent betrayal of their members’ inter.
ests." It would be wholly reasonable under the cireum-
stances of Virginia Electric to infer that the employees |
would not have-associated with such a caricature of a
union had they had unfettered choice, and to infer instead
that membership-was “foisted” on them.

2. The employees had no readily available means to re-
ject the company-dominated union. Mr. Justice Frank-
furter emphasized this fact in his concurrence. Virginia

. Electric was decided in 1943. Not until the Taft- Hartley

amendments of 1947 was there a clear-cut method by, which
employees could secure “decertification” of a collective bar-
gaining représentative, or rescission of a ‘collective bar-
gaining representative's authority to make a union-security
agreement with their employer.’

*Millis and Montgomery, The Economics of Labor: Organized
Laber, vol. IIT, pp. 879-886 (1945); Dulles, Labor in America, pp-
261, 277 (1949).

™See § 9 (e) qnd' d¢e).of the
amended, 61 Stat. 144-145, 29 U
245, 80th ‘ ‘ong., Ist Sess., p. wy

‘ational Labor Relations Act, as
S.C. $159 (e), (ee); TLR. Rep. No.
° Os S >

7
Neither of these salient factors is present in this ease, -
or in the usual case in which the Brown-Olds remedy ‘has
’ been* a ie

In none of the cases in which the AFL-C 10 is lheniotik
ef course, is there a company-dominated union. In Brown-
Olds itself, and in most of the cases applying the mass re-
-imbursement remedy, there has heen no question about the
legal status of the union as the representative of the major-
ity of the employees on the job. It is true that the present
case involves a union designated by less than half the em-
ployees on the job at the inception of the union-securi.y
arfangement. But as petitioners point out, in this case also
the employees at all times had it within their power, by .
virtue of the 1947 Taft-Hartley amendment, to revoke their

' - union’s authority to make such a union-security agreement.

These employees, like- the emplovees in othe Brown- Olds
cases, were not lacking i in the. “power te reject” their union,
as were the employees in Virginia Electric. Net no “deau-

thorization” petition. has ever r heen filed by the einpliyees.
here involved.

The short of the matter ix that-only one preimise could
conceivably support the Board's inference that all dues and
_ fees collected pursuant te an illegal union-séeurity or hiring
hall arrangement amount to coerced payments even when
collected by a free, vigorous union not deminated by any
_ company. That premise, which the Board has neyer seen fit
to articulate, is simply this!) No working nian would join a
_ labor i union and pay dues to it unless he was compelled to
‘do so by a-union- security agreement.

To buttress this “extravagant and conmevanted assump-
tion,” the Board (so far as we know) hay never deigned to
cite a single historical study or a single-economic survey. —
Indeed it could nat. The whole history of the American
labor movement ‘stands ready to refute any such conten-

'. States, vol. 1, pp. 169-184, 575-576 (1918), vol. II, p

8

tion.* Working men join unions for mutual assistance, for
~ social reasons, and for such financial benefits as group in- —
surance and pensions; but primarily they unite to achieve
bargaining parity with their employers. In American Steel
Foundries vy. Tri-City Central. Trades Council, 257 U.S. -
184, 209, Chief Justice Taft eee put the matter in
perspective :

“A single employee was helpless in dealing with an em-
loyer:. He was dependent ordinarily on his daily wage
or the maintenance of himself and family. If the em-
ployer refused to pay him the wages that he thought

Faiz, he was neverthless unable to leave the employ and

to resist arbitrary and unfair treatment Union was
essential to give laborers opportunity. to deal on —
ity with their employer.”

Statistical data which thé NLRB itself has published
lustrate graphically the unreasonableness of the Board’s
inference of mass coercion. From 1947 to 1951, when the
provision was repealed as unnecessary, @ proviso to see...
“ tion 8(a)(3) of the National Labor Relations, Act required

2 On workers’ motives for organizing or both a local and nations!
seale, see Commons and Assoeiates, History of Labor the United
> 43-48, 301-
306 (1918), vol. IV, -pp..621-630 (1935); Millis and Montgomery,
The Economics of Labor: Organized Labor, vol. Il, pp. 354-359
(1945): Taft, The A: F: of L. in the Time of Gompers, pp. 1-18
(1957); Dulles, Labor in America, pp. 98-100 (1949). It is simply
not the faet that a vague abstraetion ‘called a ‘‘union’’ coerces
employees into membership, and tries-to keep work from nonunion -
labor.. Working men themselves have traditionally banded together —
and sought to prevent competition from cheap, substandard labor.
by means of the union shop or some analogous method for protec-
ing their jobs and preservitig eraft standards. The experience of a
hundred vears attests this. C ommons, supra, vol. I, pp. 596-600. As
late as the 1930s laboring men in many industries had to prove their
' steadfastness to the principles of organization by running a grim
gauntlet of “employer goon squads, labor spies, ‘and economic re-
prisals. See Millis and Montgomery, supra, vol. II], pp. 604-612:
Rayback, .1 History of American Labor, pp. 343-344 (1959).

9
specific authorization by employees before their collective
bargaining representatives could enter into union-security
agreements. he following is a tabulation of the results

of the Board’s s union-shop authorization polls during this
period :*

Union-Shop Authorisation Elections ‘

/ Votes for -

Fiscal Year Valid Votes Union Shop % for Union Shop
1947 1,629,330. 1,534,980 94.2
1948. 1,471,092 1,381,829 93.9
1949 900,866 ; 805,189 " 89.4
1950 1,335,683 1,164,143 87.2

The inescapable conclusion is that the overwhelming
majority of workers voluntarily embrace union conditions:
In the light of historical experience and of the Board’s own
experience with these union-security authorization elec.
.tions, any other inference, we submit, is patently “unrea-
sonable” within the meaning of Radio Officers, supra, 347
U.S. at 48-52. The Board's finding that all employees in

Brown-Olds cases have been coerced into paying dues is

thus not Supported by the “substantial evidence on the ree.
ord considered as a whole” which is required by section
10(e) and (f) of the National Labor Relations Act.

B. Tue Boarn’s bean ves IsPrnexc KE} THE: — ‘TRINE
or Per Se CoErcion.

The Board-has not rested: content with drawing the un-
reasonable inference thaf all’ employees in \Grown-Olds
situations have been coerced into pa ‘ing dues. It has pro-
‘ceeded to amplify the: doctrine in subsequent decisions,

*See NLRB Thirteenth Annual Report, p. 111 (1948): NLRB *

Fourteenth Annual Report, p. 172 (1949); NLRB Fifteenth An-
nual Report, p. 235 (1950); NLRB. Sixteenth Annual Report, p.
306 (1951). ae : .

|
. \.

-.

|

aN

llirmative action is remedial, not punitive.” Consolidated

— — Eo nes —

Local 104, Inte rnational Brothérhood of Teamsters, 100 NURB s01
(1952), enforeed 205 F.2d 99 (Ist Cir. 1953). In ‘Nassau and
Nuffolk Contractors’ Agsn., 123 NLRB No. 167, 44 LRRM_ 115>.
1139 (1959), the, Board expressly overruled two of its‘ prior de- .
éisions in holding that the reimbursement remedy *‘is applicable
to all closed shop and exelusive hiring hall agreements, whieh: do
_ not. provide the safeguards set forth in the Mountain Pacifie. dec.
sion, 119 NLRB &83, whether or not preof of actual exaction vo!
payments is established.”” ; f
Of the system, in itself, by which a union serves «S the instru-
nientality for referring workers to prospective employers for jobs.
the Conrt of Appeals for the Ninth Cireuit in its Mountain Pacifi
decision said: simply : ** The hiring hall is legal and has always been
held so.’ 44, LRRM at 2805, citing NLRB vx. Swtnerton, 202 F.2
“ALL (9th vir. 1953); cert. den..J46 U.S. 814: Eichleay Corp. v. NLRB,
206 F.2d 799 (3d Cir. 1953); Del E. Webb Construction Co. V.
VERB, 196 F. 2d 841 (8th Cir, 1952); Hunkin-Conkey Construc
tion Co., 95 NLRB 433 (1951).

°

23
Edison Co. v.. NLRB, 305 US. 197, ont: Republic Steel
Corp. v. NLRB, 311 U.S. 7,.12. In-Re public Steel, as if
anticipating the arguments ‘advanced on behalf of the
Board's policy of “deterrence” duting the past two vears,
the ¢ Court supplied a blint refut: ation:

oe" #.* itis not enough.to justify the Board's require. ‘.

ments to: say that they would have the effeet of deter-

ring persons from violating the Act. That argument

\ proves too much, for if’such a deterrent effect is suffi-

cient to sustain an order of the Board, it would be Nee
to set up any system of penalties which it would deem
‘adequate to that end.” -311 U.S. at 12.

Ina word, the Brown: Olds remedy, both in its tind | rlying
assumptions and in its ‘actual appli¢ation, is opposed: to |
reason, to history, to empirical data, to Congressional pol-
ie, and to the pronouncements of this Court.

Prk aE i a CONCLUSION

For the foregoing reasons and for the reasons stated in

the brief for petitioners, the judgment of the Court. of -
Appeals should be* reversed with directions to set aside the
ovter of the Raster rel Labor Relations Board.

+ Respectfully submitted, nye

J. Atsert Wow
General Counsel, AF L-C1O
Turopore J. St. ANTONE
S15 Lith Street, NW, —
Washington 5, D.C,

THomas BF. Harris
Associate General ¢ ‘ounsel, AFL Clo”
" 815 16th Street, NW,
Washington 6, D.C.

September 1959

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0243%3A4. Public record. Not legal advice.