Reply Brief for the Petitioners — International Typographical Union v. National Labor Relations Board

a INDEX °

| ; Page

‘I. The General Laws Clause'Is Valid ......... eS

II. The. Foreman Clauses-Are Vulid ..... Pee Fe Bor 18

“IIL. The Statatory Obligation to Bargain Was Fulfilled 22

IV. The ITU Is Not a Bargaining Representative of

“Te I, ov ak reco e cies cs eeaen tienes 25

V. Tlie Board’s U nlawfully B road Oeder: ( ‘ompounds

and Reflects Its Errors on-the Merits ......... 26

ct

INDEX OF CITATIONS

CASES:

Allen v. Flood, (1898) A.C. - reer TT PET Tee “: 2

~ Alpe rt vy. ITU, 161 F. Supp. 4°7 pa Sere 28

American Newspaper Publishers A Ass’n v. NLIRB, 345-

PR ee TT eeer TT Pee Cr Tyee 6,15

American Newspaper Publishers Ass’n v. NLRB, 193. :

ft _& 2 .y Bs errr ee rr eee. 5, 7, 23, 26

Autouter-Huse ‘th Ine. vz Federal Trade Commission,

— F. 2d. — (CA 7, Jan. 25, rer ae 19)

Bus Employ ees v. Wi iseonsin Board, 340 U.S, 383... 16

- Carpenters’ Union vy. NLRB, 357 U.S. 93 2.2.0... ‘3

Consolidated Edison Co. Ine. v. NLRB, 305 U.S. 197 . 21

Eastern Railroad Presidents ‘Conference vy. Noerr

Motor Freight Lines, Inc., — U.S. —, 29 LW 4191

SO ee RED caved lence cteewauetacsoweeas - % oe

Evans v. ITU, 81 F. Supp $75 (N.D., Ind.) -.:... a. oe

‘Guerini Stone Co. v. P. J. Carlin Constr. Co., 240

I ee a ee ie Ca weg s 27

‘Honolulu Star-Bulletin v. NLRR, 274 F. 2d. 567

(CADC), reversing 123 NLRB 395 ....9; 16, 17, 20, 25

International Harvester €o,. v. Kentucky, 234 U.S.

Oe vigloses née ST See RE AEE eR MERE E MER BAAS 3

Lewis v. Quality Coal Co., 270 F, 2d 140 (CA 7), cert.

oe 6B Ree rer ore 13

. Local 357, ete. v. NLRB, No. 64, Oct. Term, 1960... -D

Local, 636, Plumbers v. NLRB, — F. 2d —, 47 RRM

2757 (CAD, Jan. 19,1961) enforcing as modified,

Detroit Ass’n of erated Contractors, 127 NLRB

SO Ocha s 6 nh sack Po veuchsn ves eeaas scan bees -- 22°

a -, Index Continued

Page

Matter of Eyterprise Indu&trial Piping Co., 117

NLRB 995 _..... pia Pehcadeua Kvetewedeaewe ee 20

Matter of ITU, 86 NLRB 971 ............ 6, 7, 15, 17, 20

Matter of Kansas City Star, 119 NLRB 972 ....... y

Matter of Mountain Pacific, ete., 119 NLRB 883 .... 30

1556, 20-CB-658 ..... Sneensebecealen tev hteneaks 29

Matter of Pacifie Intermountain Express, 107 NLRB

837 SCeeeaereeeeeseeeeeeoeeeseceee z a me eC eoeececeececececs 3uU

Matter of Pacifie Shipowners Association, 98 NLRB

| 3 Nada wiweeas técabbevinbeutvesaes ciueas ienese a

Matr of Tribune Publishing Co. et al. 20-CA-1553,

SUOCR-GBT .4..... betnces cues aaa ates ewes aa pat

“he May Depaftment Stores v. NLRB, 326 U.S. 376 26

Morgan vy. United States, 304°ULS. 1 .............. 21

“NLRB v. Amalgamated Local 286, ete., 222 F. 2d 95

id A SRP rere Ceade ets taedéoerecete 8

NLRB v. Brandman Iron ('o., No. 646, Oct. Term,

gic LECCE ETT TET SOPOT r Vecnectwesee 21

- NLRB y. Ford Radio & Miea ¢ ‘prp.,.258 F. 2d 457

(CA. 2) eR eee ECeeerre yy Pee ee eee eeeesawsenes 2

LE GOR ES sateen 278

NLRB v. Miami Coca-Cola Bottlimg Co., 222 F. 2d |

oe oY, eS a ee sédeeeewenes getecetocase 2

NLRB vy. National Maritime Union, 78 NLRB 971,

enf'd 175 F. 2d 686 (CA 2), cert. denied, 338 U.S.

‘nn wewass sheseeeeencees Sasa 20ceeees hove teace Jae

SD wechusecnentwees babeibiacanecu 6, 9,12, 13, 19, 20

NLRB v. Stowe Spinning Co., 336 UsS, 226 ......... 27

NLRB v. Wooster Division of Borg-Warner, 356

US, 342 affirming 113 NLRB 1288 .......... 24, 26, 30

Osceola Co. Co-op Creamery Ass'n v. NLRB, 251

ve 2 Sit SS wen wudawiee beekeness 2

——__~

Index Continued TALS. iii

; . . Page

Perry Coal Co. ve NLRB, 284 F. 2d 910 (CA 7)

reversing 125 EGee Se. Sic co re cde cc vtutie« 12

- Palmer vy. Chamberfiin, 191 F, 2d.532 (CA ) a alaleel 11

Philadelphia Daily News and ITU Local =2, 33 LA

765 (Turkus, Arbitrator) et cata eignd ean ood 15

Radio Officers Union vo NL es ee Be Ee oceoeses 30

‘Raley v. Ohio, 200 U.K. 423 -.... ecw eccccce. ae ee 2%

Ravel Star Express Lines v. NL RB, 196 F. 2d 78

oS EE SOS A EL 13

Steelworkers y. American Manufacturing Co., 363

i 2... 265. ease ear eedeantebreccenes . an

Teamsters Union vi Oliver, 358-U.S, 283 ........... 26

Texas & N. O. Ry. Co. v. Brotherhood, 281 U.S. 548) 11

United States v. Loeal 807, IBT, 316 U.S. 521 ...... 3

United States v. Rock Royal Co-op., 307 U.S. 535... 1T

. United States v. Rumely, 245 U.S, 71 .............5 9

United States Steel Corp. v. NLRB, No. 311, Oct.

. =. Bearer rere oR AGS To apne Pe 20,.21

Vitarelli v: Seaton, | fg ees eo 21

eaerren axp RvULes:

National Labor Relations Aet, as amended, 61 Stat.

136, 29 U.S.C. § 151 et seq.:

MOGUNEN TDD ccs sccccccss imininenwnweueh ian ads 22

ES UlcU coun s cS eear ewe tees ee rae oor 22

DE Doc cr ccceroduy esas a4 ieaepaumutewedeaoes 22

INOS nnn ceucscvspeceeuces wees DR, 26, 20, - |

Section S(b)(1)(A) ......-. fe PR Rn ee Pepe

en cocoon a ak eee come eneic cu eseeen 2

RE Eee 31

Meeteees BIBS) on. ccc ccfescccccsccs raogerea ae. 24

ce he a ay on kona ahs <aceens 24

so. 3. 06s ca vepeseeekbeetesennes 21.-

DE ED = ae eeuvisecesecceeaus yoy eee eecerees 22.

2ules and Regulations and Statements of Procedure

of the Natio Labor Relations Board, Section —

102.46(b), 24 FR. 9108... ee ceccccee posal ames 21

_ MISCELLANEOUS: ; \ :

75 Cong. Ree. 4918 (1932) °..... Peete settee eee. BO

Corbin, Contracts (1951) .....: Soa eu aaieeetecadaes ‘10

Corbin, Contracts (1958 Supp.) ... 25.6... 6. eee 10

IN T HE

' Supreme Court of the United Btate

No. 340

INTERNATIONAL TypooraPHicaL Union, AFL-CIO,

' “Havernitn TypocrarnicaL Unton No. 38,

WorcCESTER TY POGRAPHICAL U NION No. 165, Petitioners,

o /™

NATIONAL LAaBork RELATIONS Boarp, Respondent

° On Writ of Certiorari to the United States Court of Appeals

. for the First Circuit ,

\

_ REPLY BRIEF FOR PETITIONERS |

I. THE GENERAL LAWS CLAUSE IS VALID

The Board’s Brief once more introduces some eeeel

theories by which it is asserted the Board’s decision

_ and order can be sustained. But the Board carries a

heavy burden in attempting to hold contract proposals _

unlawful.- Manifestly, it will not do to speculate that

there may be discrimination’ under them, for this can

he said of any agreement, irrespective of its terms.

9)

¢

oy

‘Diserimination,’’ hy definition, requires a conscious

act on the part of an employer or inion granting pref- |

erence to an individual. or class on the basis of union

membership or non- membership. Because Section

8(a) (3) is limited to that specific kind of diserimina-

tien, the egal: preference must be knowingly, i-e.,

“intentionally”* based upoh that factor. See, NLRB -

v. Ford Radio & Mica Corp., 258 F. 2d 457, 461-463

(CA 2); NLRB v. Miami Coca-Cola Bottling Co., 222

F. 2d 341, 344 (CA 5); Osecola Co. Co-op Creamery

Ass'n V. NLRB, 251 F. 2d 62, 68 (CA 8); NLRB v.

Kaiser Aluminum & Chem. Corp. 217 F: 2d 366, 368

(CA 9). Since the, unions’ proposals would not, if

adopted, have ‘caused discrimination’, and sinee the

Soard does not even purport to establish the elements

of aw “attempt”? (analyzed at pages 14-15 of our

main brief),’ neither the proposals nor the strikes were

an “attempt to cause discrimination’. The Board has

thus been driven to elaborate formulae, the chief

characteristic of which is that they substitute for the

objective standard of «diserimination” entirely stub-

jective speculations concer ning how other people would

regard the agreement.? These cireumlocéutions have

‘Our main brief in this case will be cited hereatver as “Br. ;

The Board's brief will be cited as‘ Bd. Br.’’ e

2**the contracting parties could reasonably foresee .. . the em-

ployees would be more likely to cone ‘lude*" (Ba. br., P. 15): pees

how the employees are apt to view it..." (p. 16); . the fore-

man would be prompted to abide by there. rules . ; must he deemed

to have intended to maintain a closed shop”’ (p. 17); °°. . . tan-

" tamount to incorporating the closed slop provisions . . .”’ (p. 17);

. May be deemed to- include thdse provisions of the laws

limiting employment to union members’’ (p. 21); ‘*. . ~ the eon-

tracting parties could reasonably foresee. . . the employees would

not undertake to decide for themselves . . . would treat all of the

laws as incorporated’ (p. 23); ‘tmust be deemed to have intended -

no basis in the statute and are sueli Vague, and inade

quate guides to conduct that they would violate due

/.. process if Congress had adopted them... See, e.g.,

International Harvester Co. v. Kentucky, 24 US. 216,

293-24; Unitéd States v, Lécal 807, IBT, 315 US. 521, .

932: °*The state of mind of the truck owners cam®t be

decisive o the guilt of these defendants.”’ —_—

The new factor introduced by the Board is eon- ‘

sistent with this approach, since it also relies on the

state of mind of others—now of the employers from

whom the unions sought agreement, who are the charg-

ing parties in these cases.* The Board asserts ‘‘it is

plain that the publishers in fact understood that . . .

petitioners were calling for the execution and enforce-

ment of contracts contemplating closed-shop condi-

tions.’” Bd. br. p. 24) It attributes to the publishers

the *tunderstanding”’ that the “not in conflict with law”’

language was not ‘intended to exelude the closed shop

provisions of the General Laws from. this econtract.*’

Cid. pe 25). No record reference or finding is cited

for either. of these propositions. ° And while the em-

te operate under closed shop conditions . .."" (p. 24): ** what the

words ... are likely to mean to the emplovees’’ (p. 26); ‘*. . - the

emapleyeen, would regard all of the laws as incorporated .

(p. 26); **. . . the employer could expect that he (the foreman)

would use that pqwer”’ (p. 28); **

agree’. . . he must be deemed to have intended’’ (p. 28); *

there would be #o reason for him to assume that. he did not remain

- free... (p. 28); **... the foreman clause . . . contemplated that

the forefian would | .. (p. 29); ‘*. | . tantamount to incorporating

the closed shop provisions so » Ch Sep:

*Compare United States y. Local 807, 1BT, supra: *'To make a

fine or prisofy sentence for the union and its, members contingent

_ypon a finding by the jury that one motive or the other dominated

_the employers ’ decision would be a distortion of the legislative pur-

pose.*" 315 U.S. at 522-33. .

\

“

Pe,

. if the emplover were to -

— a

is entirely unsupported, and was explici

4

<a

iployers’ erroneous * understanding” of the laws clause

could in no event be determinative of its legality, the

dangers of the Board’s subjective approach will per--

haps be illustrated by examining this latest version.

. A. In the Haverhill negotiations the matter was quite

clear. The publishers’ main objection to the union

proposals was to the jurisdiction, clause; the laws

clause? was unsatisfactory to the conipany beeanse as

they “understood the union laws, if you accepted. the

union laws you aecepted jurisdiction.’” (R. 42) See

als R. 49-50. The Board so found. (R. 436) /The

objections to. the jurisdiction clause Were praftical.,

not legal. (R. 43). The Board so found. (RJ 436).

The only citation in the diseussion (Bd. br. pp. 24-25)

is to the Board’s entire statement of thecase ; it is not

‘**shown’’ even in this argumentative and selective

narration that the publishers objected ‘to the Laws

clause ‘‘on the ground that this would establish a

closed ‘shop.’’ * (Bd. “br. p. 24). When, after. the

strikg began, the company browght in Phillips and_

Parry to represent it, its instructions were con-

sistent with this position. (R. 90-93). Spetifieally

Parry testified that ‘*IT don’t reeall that the closed

shop features of the General Laws were diseussed"*.

(R. 92) The Examiner’s contrary finding (R’ 439)

excepted

x stand, but,

to. (R. 477). The Board allowed it

quite properly, does not rely on it here

_If actions speak londer tharf self-serving deelara-

tims’ ante litem motam, the negotiations at Worcester

give no greater support to the Board. For Worcester

had previously executed an agreement containing the

(ieneral Laws clause (R. 130, 351).. Indeed, until the

’

end of 1954 the parties had always operated under:

as contract (R. 171, 419). There is not a shred of

evidence that the company bélieved it was required

to discriminate by the previous agreements. There

is none that it did 80. |

After negotiations: in 1954 and 1955 had been unsue-

cessful, Local 165 presented the proposals here involved.

The company objected. It believed the proposal would

increase costs by. half a million dollars, and resisted,

particularly, the jurisdiction and Laws clauses. (R. °

424). As to the lafter it proposed individual negotia-

tion, but.its ecounterpropesal did net asgert illegality.

(R. 371-2). *Not-until after the unions had declared

an impasse and mediators had been called in were

legal issues raised (R 427-28). After the union’s first -

strike vote, Mr. Hanson beeame the ecompany’s.chief

negotiator. He repeatedly said that the Laws clause

was ille sal. He also said.-as the Board notes (Bd. br.

p. 8), that managément would not take the General

Laws in toto. He did not specify which were illegal. °

(Compare the list in amicus brief of eharging party

~ pp. 19-20, with Appendix B’in our mai brief and

“Bd. dy, #339 pp. 6-7, n. 4). But saving. somethihg and

“understanding”? it are not the same; no evidence to

support an “understanding” is cited. Mr. Hanson also

~ expressed the view that the jurisdiction proposal was |

iHewal CR. 117, 119), but even the Board refused to

<o hold. (CR. 481, n. 2).

The statement that these elauses are in ‘flagrant

contempt” of the decree in ANPA v. NisRB, 192, F. 2d

72 (Brief Amicus, p. 21) is wishful thinking. Shortly

afier the decree in that case was htered, "Mr. Hanson,

who is also counsel for the America ‘an Newspaper,

ane

6° os

Publishers Association (see ANPA v. NLRB, 345

U.S. 100, 101), so charged, -but the Board, after full

‘investigation, took no action (R. 259). Historic ally,

and with particular vigor since 1944, well before

passage of the Taft-Hartley Act (See 86, NLRB at

' 971, 983); that Association has_ vigorously fought

the concept of the ITU General Laws, doubtless

because it believes that ‘their climination would

be economically advantageous to its members.‘ It

is entirely understandable that the’ ANPA should

*Employer attitudes on this ‘subject are also demonstrated

by the ambivalence-of the brief of the respondent Ne “ay

Syndicate.in No. 339. See-partic ularly p. 3, n. 4, p. 6, p. 7, pd

-p. 10, n. 12; The News’ final prayer (Jd. p. 33), that the judg-

_ ment below be affirmed, thus demonstrates that when matters of — -

principle are at stake, newspaper pubKshers, to quote Mr. Dooley,

‘‘don’t care no more f’r money thin I do f’r m’ right eye.”’

That Brief quotes Woodruff Randolph, then-President of the

ITU, as talking of a continuing ‘struggle with employers to

maintain our General Laws as a basis of union shop operations”

(pp. 8, 10, ne) The precise testimony was: >

*Q. “Refore the Taft- Hartley Act came into effect, what was

your definition of a union shop? °

A. A union shop was one employing only -members of the

union on work processes covered by our jurisdiction.

Q. Isn't it a fact that Aw used ‘union shop’ here (in a

speech made in 1957) in the traditional sense, in the pre- .

Taft-Hartley sense? | =

A. That. the employer contracts with us?

-Q. That you have had a nation-wide struggle with employers

to maintain your general laws as a basis: of union shop

operations? t, :

A. That means the kind of shop where the oper con-

tracts with us at the present time.

Q. You have changed, then, the definition of ‘union shop’

by your own words? .

A. As I said, it has been cGFrupted. In no sense do I ever

-_

seek to use Federal legislation to achieve long-

sought and cherished objectives. The thrust ef the

ear lier litigation was a contention that enforcement ‘by

the ITU of its General Laws cqnstituted “restraint-and

coercion,” an argument which was squarely ‘rejected.

See Matter of 1TU, 86 NLRB 951, 957; ANPA v.

N LRB, 193 F. 2d 782, 800-801 ( CA 7).

- In this proceeding, Mr. Hanson, now om behalf of

Worcester, excepted tothe failure of the Trial Exam-

iner ‘to recommend that Respondent [TU rescind all

ITU laws (including any provisions in the Constitu-

tion, By-Laws, General Laws or Convention Reso-

lutions) that are in conflict with the Act or that have

heen used or may be used to. thwart such Act.’”

Whether’ in the face of the decisionsin the ANPA_

case, and the proviso to Section 8(b)(1)( A), this

“¥epresents an “understanding” is not genuinely rele-

vant. The course of events sinée passage ofthe Taft-

Hartley Act (see our principal hirief, p. 16, 1. 9 pp.

35, 38-39) could lead only to an “understanding” that

these clauses were lawful. oo

want to mean that kind of a union shop that the Taft- Hartley.

prohibits. The union shop as it is fised any time I use it,

means a shop whereby the employer contracts with the loeal

of the I. T. U. for work over which we exercise jurisdiction. -

().-And which work is done by your members only?

_ A. No; there are some non-union men around here and

there in shops. ,

Q. However, when I a-ked you whether you used this

‘union shop’ term hefe in the pre-Taft-Hartley sense, I believe

vou said that you bad, and. you admitted that you had?

A. I didn’t answer that particular question. I° didn’t say

yes to.that because pre-Taft-Hartley union shop and closed

shop were synonymous’’.. (B. 3339, p. = R. this case, p.

300-01, emphasis supplied. )

~

“Exception #23 at p. 6 of the Exceptions of Charging ¥ Party,

in the full reeard on file with the clerk.

?

~ .

B. We are thus faced with the’ contention that the

opinion of a single attorney, not shared by attorneys

for newspaper publishers generally (R. 260), is dis-

positive. The ground for his opinion is. stated. by the

*‘ Board to be that adoption of the General Laws clause

‘would establish a closed shop”? (Bd. br. p. 24). Even

the Board does not so contend; its argument is that

some emplovees might (erroneously) so conclude. We

have set forth in our principal brief (pp. 16-29) the

constantly ’ shifting theories by which the Board asserts

this clause to be unlawful s8ve are not informed whieh

of them Mr. Hanson adopts as his own. We suggest

that if the opinion of counsel is now to be sought as

a stistitute for adjudieation, the sample’ should be

- broader than the attorney for the charging party. We

“understand” that this clause is lawful, and for what

we feel to be suffieient reasons, but we have undertaken

fo argne our reasons, “not our ‘understanding. ”’

Like the Board, the charging party in its brief

amicus filed in this Court, rests its ar gument on events

aceurring in 1947 and 1948. “But, as was pointed out

in VLRBY.A malgamate d Locals. 286, etec., 222 F. 2d 95

(CAT),

a0 % fundamental that the eure Was on the

Board to proye the charge made in the complaint,

het_on respondent to disprove an intention which

the Board might arbitrarily choose to read into

the agreement ... We cannot condone a procedure

Which attempts ‘to define that intent by grafting

onto a contract a disinterred provision of a de-

ceased agreement’’ (pp. o7- 98). “

The disinterred remnants of accueil litigation are no

more germane, ~And when the Board relies on testi-

mony given by the President-of the ITU in opposition

a

to this legislation (Board br. No. 339, pp. 28-29), it

does not merely exceed the bounds of relevaney. It

strikes to the heart of our political svstem—the right

“to petition Congress for redress of grievances. United

States v. Rumely, 345 U.S. 71; Eastern R. Conf. v.

» Noerr M. Freight,, = US. , 29 LW. 4191,

—“$194-95, slip op. pp. 10:13, (Feb. 20, 1961).

In short, the Board savs that the Laws clause is

iNegal hecanse the employers-say it is illegal, and he-

eause the unions insisted it was legal. To seek con-

‘firmation “of the validity of the Board’s view” (Bd.

by. p. 24) by. sueh reasoning, on this record and these

findings; is an aet of desperation.

. A potpourri of history (much of it pre-Taft-

Hartley) and surmisings regarding what other people’

might think or may have thought constitutes the

**practical context”? which is contrasted (Bd. br. p. 25)

with petitioners’ ‘‘aecademic’’ contention that the

‘‘plain language of the proviso to the laws clanse’’

means what it says. We think the ‘‘practical context”

which is relevant to an understanding of the Laws

clause is the experience under it. There is no dispute

but that it has been in general use since 1948. Prior to

this case there were only three instances in which it

had been asserted that there had been discriminatory

conduct involving local unions of the ITU. In Matter

of Kansas City Star Co., 119 NLRB 972, the Trial

* Examiner recommended dismissal of the complaint, but

the Board, with two.members dissenting found that

certain employees, not covered by the agreement, had

been discriminated against. In Honolulu Star-Bulletin

v. NLRB, 274 F. 2d 567, 571 (CADC), the Court

sustained a finding that one man had been unlawfully

_ discharged. In NLRB vy. News Syndicate, 279 F.2d

Ww 2

10)

-

323, 334-(CA 2), $339 this Term, the Court upheld a

indies that one employ ee had beén denied a single

| night’s work. In both cases the Courts noted sub-

stantial. evidence to the contrary, and their affirmance °

can fairly be said to demonstrate scrupulous adherence

to the limits of their review powers.. And in each case.

the Court expressly and deci ‘sively found that the hir-

ing practices under the agreement were lawful. 274 F.

2d at 569; 279 F. 2d at 331-334.. This is the thirteen

year record.’. More significantly, the discrimination

found in those cases,had no relationship to the agree-

ment or to any Geherul Law, “In gach of them the

agreement, and the practices under it, were found

to be lawful. Why should the’ Court’ speculate

how: the proposals here might be enforced, when

experience. supplies so clear’ a. guide? Surely, if

_ these proposals inevitably (or in any case) had the

consequences Which the Board atgributes to them, some

}roof of that fact should be forthcoming: What more,

undet the Act, can the Board demand-than that agree-

ments be lawful on their fice and that they suid

administered? ‘at oe

As ‘stated in 6 Corbin, Contracté, See. 1533 Or.

1054-55) (1951),

“Tf the bargain: is one that is capable of being

performed lawfully the court. will not assime a

purpose to perform it -in an unlawful’ manner;

proof of such a purpose would have to be made. ae

And,.in the 1958 Supplement at page 153, :

“Of course, the presumption is that purposes.

are lawful, atid the contract will be enforced unless:

@ defendant asserts and prov es..the cont¥ary.”’

a“

ee ae, : ; 7 .

/ % %

° .

ae sae

, F;

The rule is well settled that,

“The Durden of showing legality ix upon: the

party asserting it and it is not sufficient: merely

to create confusion and suggest doubts a: to

legality.”’

he

« “ \

Palmer vy. Chambeitain, 191 F. 2d 532, 539 (CA 5);

see als@%ases cited’ in Maile rs’ br. #339 at p. 20.

This practiéal experience demonstrates the fallacy

of the Board’s arguthent that an improper motive ‘ean

he found on the basis of ev erits occurring thirteen vears

ago; indeed, as we have pointed out ‘(Brief in No. 339,

pp. 7-8), the Board has. made no such finding. Even

had it been made, while motive ‘. . . is a persuasive

interpreter-of equivocal conduet” (Teras d N.O. Ry.

Co. V. Brotherhood, 281 U.S. 548, 459), where, as here,

the conduct is :neqnivocal ‘. .. the existence of a bad

_motive, in the case of an act whieh j is not itself illegal,

will not convert that-act into a civil wrong.” . Lord:

Watson in Allen v. Flood [1898] A. C. 1; Eastern |

R. Conf. v. Noerr' M. Freight, US. , 29 LW

4191, 4195, slip op. p. 12 (Feb. 20, 1961) ; U.S. v. Rock

Royal Co-op., 307 U. S. 533, 560.

PD. The Board returns 'to its argument that **the em-

plovees wold not undertake to decide for themselves

which of the laws were excluded as illegal but as a

practical matter, not being jndyes or lawyers, would

treat all of the laws as incorporated.’? (Bd. br, p. 23)

If employees would not undertake to make this deci-

sion—and we think sensible emplovees would not wish

to engage in this, academic speculation—then, ‘fas a

practical matter, * they would conclude that-the terms

of their employment were governed by the lawful pro-

visions of the agreement. As a condition of maintain-

—

ey

ing ldwful agreements, the parties.are not’ required to

write a treatise on labor law, setting forth the myriad

cirenmstances which can arise and providing ‘satisfae-

tory answers to all of them, with the Board grading the -

papers byway of a contempt proceeding, particularly

when the Board has so clearly denionstrated that it

does not itself know the answers. We cen not write

agreements in suéh form that thev will survive the

iNiteracies arid suspicions which.the Board so failely

attributes to employees. By this reasoning a contract

provision granting higher wages could be declared

illegal because of the Board’s assertion that some un-

identified nonunion employee might apprehend that the

‘ henefit would be extended onty to union members.

Tn its petition for certiorari ivy News Syndicate the

Board: stated that ‘‘the same technique” as the Laws’

Clause ‘‘was utilized in the National. Bituminous Coal _

Wage Agreement” of the United Mine Workers. Pet.

+339, text and note at p. 18, n.15. The Board’s deci#

sion in Perry Coal Co., 125 NLRB #110° was cited to

show that this clause was unlawful.’ That decision was .

reversed in Perry Coal Co. v. NLRB, 284 F. 2d 10.

®**Jr is well settled that where, as here, a contract, contains an

unlawful provision, a general ‘savings clanse’ that does not specify

to what extent the provision is inter.ded to be Hmited will not

purge such a provision of its illegal character. Thus, the qualify-

ing language ve provision—‘to the extent and in the manner

provided by law’ . . , fails to set forth in‘clear and unambiguous

terms limitations on ‘the requirement of union membership that

conform the provision to the union-security standards of Section

S(a)(3) of the Act. We do not believe that the burden of stat-

tery and judicial interpretation can reasonably be placed upon

an employee to be acted upen at his peril. In view of the vague

and general savings clause, we conclude that the’ union security

clause in the National contract provides for an unlawful closed

shop." 125 NLRB 1256, 1257. “ ‘

|

914, the Seventh Cireuit relying on and reaffirming

Lewis ¥. Quality Coal ¢ ‘or p., 270 F.2d 140, cert. denird,

361 °ULS. 929 (which was dlso cited = the Second

-Cireuit ‘in News Syndicate, 279 F.2d 323, 328).

‘The Board makes no effort to deal with these authori-

ties whose relevance it had asserted in its News Syndi-

cate petition. The Board's brief in that case, its main

diséussion of ‘the legal issue, attempts to brush them

aside (Br. 2329, p. 22. n.15). Its brief herein i ignores

them entirely, although our opening brief (p. 18) had

pointed ont that they (and the decisions of the. Sixth

Cirenit and varioits District Courts also upholding the

UMW contracts» repudiated the Board’? position, and

especially tts reliance on Red Star Express, which is

still the Board's sole prop. Though the Board bury

them, yet these decisions are still in the reports and

their reasoning, as well as that of the Second and Dis-

trict of Columbia Circuits, ‘is sounder than that of the

Court below.

The holding of the court below (See Bd. br. p. 25,

mn. 2) rests om its conelusion that “ITU's imsistence”

that ‘Union language must he taken with respect to

its general laws’ demonstrates that ITU would not

uppreve any contract provision substantially in confliet

With its laws’? (R. 523). But such a contliet is plainly

tpparent on the tae ‘eof tae language proposed; ie.

that aaifly General Law “in conflict with federal .

law’? was not teche incorporated, and any law walling

for closed shop conditions would therefore be excluded

in circumstances @ltre cnforcement would result. in

vw violation of Kederal law. The contract proposal

. itself thus demons rates on‘its face the willingness of

the ITU to approve y contract prov ‘ision substantially :

in contliet with [certain of] its laws.’’ coupled with

*

‘

hh

a clear recognition of the supremacy of Federal law

-over the General Laws. This is but another facet of

the ¢'ourt’s erroneous “incorporation - by reference”’

technique. *

_ E. The eve of the hurricane of this litigation, both

past and present, is to be found in the assertion (Bd.

br, p. 24) that the Union negotiators stafed that they

would not ‘take the book of laws and-sit down and

negotiate law No. 1, whether it applies to the contract

or not, we would not do that” (id., n. 8). This is true

enough, but it elides essential problems; it certainly

provides no ba:.s for an assertion that the publishers

thereby ‘in faet”’ understood that this ¢ alled for closed ;

-shop conditions.

As civil society is bound together. by its laws, so the

Laws of th ITU are the essential cement by which a

union is achieved, It is conceived that these Laws, for

the reasons set forth at pages 12-13 of our principal.

brief, when democratically adopted by majority vote

of the members, are binding on all local unions and ©

members (except, as they make clear on their face,

when their enforcenient might result in a violation of

law). The artful, and s emingly innocuous, attempt

_ of the employers here—to induce the Union representa- . -

tives’ to negotiate them one by one—is a traditional

technique. If accepted, it would require loeal unions

to assert a power and authority to set aside or modifv

the General Laws as they wished. contrary to this basi¢

compact. But if local unions have such power, the,

entire union structure crumbles; in negotiation after ;

negotiation, the substance of the General Laws could

' he frittered away, and instead of serving the function

of providing decent minimum standards, they would

¥

1 a

he merely precatory, if that. “This has been, for many

generations, the objective of the ANPA: to substitute

anarchy for the rule of law, to retrace the painful

steps by which the General.Laws have reached their

Sresent maturity, by picking off, one by one, the weak-

est local unions and thus debasing. working conditions

generally. The Board is entirely right'in stating that

on this issue the ITU has’ been une ompromisingly in- ~

transigeat, for what we conceive to be the most’ valid

reasons. This issue? woes: to the basis of union itself,”

is intimately entwined with internal union.democraey,

and represents an effort to ret ain the achievements

of generations of struggle.

Similar considerations apply to the Union's refusal

‘to-arbitrate the General. Laws, (Bd. br. p. 24). This

problem is developed in the record (R. 96, 977-278).

The position of the ITU has been that its General

Laws are not subject to arbitration, though the ‘facts

concerning: iy dispute; ‘whether. governed by the con- |

~ tract provision or governéd by a law effective through

a local commitment, is subject to arbitration and settle-

ment as a finality by the Joint Standing Commiitee”’

(R. 96).7 From 1901 to: 1922 they were arbitrable

(See Matter of ITV, 86 NLRB 951, 971). The prae-

. tical consequence wasy to give + hypothetical example,

that when ITU members adopted a General Law call-

ing for'a maximum 48 hour week, the matter could be °

taken before a board of arbitration. whi#h might decide

that. a 56 hour week was warranted. The adoption of

a General Low thereby became no more than a state--

. Randolph gave as an exaniple the General Law on reproduction

(see ANT A v. NLRB, 345 VS. 100, 104) under which there are

frequent arbitrations. See, e.g.-Philadelphia Daily News and ITU

Local #2, 33 LA 169 ‘Turkus, Arbitrator).

8

W

©

.

ment of a desired objective, the possibility of effective

action was blunted, and the democratically expressed

desire of the members was defeated. For’ these -

reasons, action was taken to prechide the arbitration

of the General Laws. The problem is identical with

the relations between courts and legislatures. In

.performing their important function of: interpreting

and applying statutes, courts do not undertake te

decide what the action .of the legislature should

have been, but aecept the statute as written. So

here, boards ‘of arbitration may interpret and ap-

ply the General Laws when a problem arises, but

they are not to act as legislative bodies. We submit

that nothing in the Act requires the ,parties to agree

that partienlar matters must be arbitrated; the dis-

tinetion here is between arbitrating the terms of a new

agreement, .and arbitrating “ontroversies that arise ’

sg existing agreements. Compare Bus Employees

» Wisconsin Board, 340 U.S. 383,.394-95 with Steel-

" wastes American Manufacturing Co:, 363 CU. S. —_

a

The alternative ‘proposed by the Union ies

ators; Le. that the parties discuss the conditions

covered by the General Laws and negotiate about them

(See our principal brief, p. 16, n. 9), was and always

has been open. Indeed, contrary to its position here.

(Ba: br. p. 25, n. 9) the Board recognized that the

contract supersedes inconsistent provisions in the Laws,

(R. 451, 453)" For example, had the publishers had

a genuine belief that the Union proposals were intended

. he a eydalt, i Load was driven to tortuous argument ition to

avoid the thrust of the nondiscriminatory, definition of ** journey-

men” here (R- “ Apo the Honolulu case, 123 NLRB 395, 399,

reversed, 274 F. 2d 567.’ rs

oe 6.

e 4 W

to create closed-shop conditions, it was open to them

to propose the language contained in the agreement

in Monolula Stur-Bulketin v. NLRB, 274 F. 2d 567, 569,

‘that ‘The term *journevmen’ and ‘apprentices’ shall

In we Way be understood to apply exclusively to mem-

hers of the International Typographical. Union’’; as

the Court noted (at page 569), that -agreement had

been approved by the ITU. The General Laws clause

on its faceand the testimony in this case, clearly shows

that snch contract provisions, if agreed to, override any

specific General Law (See R. 210-212, 274-277, 279-280,

451, 453: Matter of ITU, 86. NLRB 951, 970; Honolulu

Star-Bulletin ¥. NURB, 274 F. 2d 567, 569). As we

have pointed out (Br. p. 279, the Union proposals, by

defining: journevmen and apprentices in. non-diserimi-

~natory terms, would override any closed shop provisious .

Cof the General Laws. :

The most glaring omission in the Board’s brief is

its failure to cite,any record evidence indicating that

the Unions intended that these proposals be unlawfully

applied; the contrary clearly appears (See Br., p. 16, —

n. 9). An asserted publishers’ “understanding”’, not -

found to exist by the Board, is not a substitute. Despite

— the elear language of the proposals and all the evidence

of record, the, Board and the eoyrt below nonetheless

adopt the technique of elaborate speculation as to what

Was probably intended, and this before any executed

agreement is available for analysis. The Bdard at-

tempts a strange tour de ferce in arguing (Bd. br. p.

24) that the Unions’ ‘intransigeance”™* in insisting on

the leg: ity of their conduct somehow demonstrates an

eval motivation, — ,

18 ,

In sum, **In the practical context which the Board”

_ Should have considered, its inability to read and under-

_ stand ‘the plain language of the proviso to the laws

clause’’ (Bd. br. P. 25) is not ‘‘academic’’; it is

sophomorie. ‘

II. THE FOREMAN CLAUSES ARE VALID.

The Board: meets our contention. that it must be

“presumed that foremen will act lawfully, rather than

the contrary, by stating that this could be trne ‘ ‘only

. Where, unlike here, the employer had not delegated

complete control over hiring to the foreman, but had

prescribed some standards for the discharge of that.

function or had otherwise reserved control over it’

(Ba. br. p. 28). As we demonstrated in or principal

brief (p. 31), the employers here had Union foremen,

‘by their voluntary choice and without the compulsion

of ‘an agreement or other Union action. The Unjon

proposals were that the status quo be ‘continued, and,

. = non- -diseriminatory standards of hiring, based on

ipetence and experience, be adopted (Br. p. 27).

It is ironic that the Board should insist that the Unions’

action (in seeking by agréement non-diseriminatory ;

standards for hite) constitutes a delegation of ‘‘com-

plete control to the foreman ;”’ if foremen are as Sed

on violating the Act as the Board wéuld have ‘this

Court betieve, the Unions’ proposals are clearly in aid

of the statutory purpose. ‘*Complete delegation” pre-

céded, but would not follow, acceptance of the proposals

here made. Essentially, the Board’s.argument is that

the publishers violated the Act by unilaterally engaging

a Union foreman.

The Board's argument is summarized in its statement

(Bad.{br. p. 28) that ‘‘if, as here, the foreman were given

the power (over hire) without more, there would be

rt

: cee 19

ne reason for him to assume that he did not remain free

to exercise it In accord with his obligations as-a union -

79

member’... .’’ There are compelling reasons for

assuming the opposite. :

First is the presumption that the citizen will obey

the law. Since the Act forbids discrimination in hire,

the presumption is that the foreman woyld not dis-

eriminate. ‘‘But a mere power to discrininate ip not

illegal as even the Board appears to recognize’? News

' Syndicate, at age 330.°

Second is the agreement. As we have shown in our

principal brief (p. 27) the contract proposals made

by the Unions plainly stated on their face that hire

was to be based on competence and experience, not

Union ‘membership or non-mémbershfp. For reasons .

-Which are obseure, the Board asserts (Bd. br. p. 30)

that ‘‘the foreman clause was coupled with the General

Laws clanse’’, The Board made no such finding, but

assuming its correctness, the foreman would be aware,

from the form of that’ clause, that any General. Law

calling for discrimination in hire was suspended. The

foreman would be bound to the agreement above, any

Union obligations. * % }

® é

Third,-foremen have no such ‘obligation’? as Union

members. As early as 1948, the Court in Evans v. ITU,

“81 F. Supp. 675,. 681, 683-685, (N.D. Ind.)' noted that.

a then-existing oath of meinbership which, it was

claimed, required foment

***Potentiality to commit an act cannot be used as a substitute

for proof of the act itself. While it has been said that every person

has a little larceny in b‘§ heart, not even a cynié would attempt to

procure a conviction on that ground alone.’’ Anheuser-Busch,

Inc. v. Federal Trade Commission, F. 2d Sli Op. p. 18

(CA 7, Jan.-25, 1961) (on remand fron 363 U.S. 536)

™

°

Reena 2

/

» discriminate had been |

20 toe >

abrogated. And see Matter of ITU, 86 NLRB 951,

1020, n. 60. Articie XII-of the Constitution which

required members to prefey’ other members in hire was

repealed in 1953 (R: 270). We have already sufficiently

discussed the proviso to the General Laws clausé which

also makes it clear that discrimination in hirg is not —

required, and the amendment of the General, ‘Laws,

hy the addition of Article XIV, which makes clear.

that any General Law which may be interpreted to

require discrimination in hire, where such action would

be unlawful, is suspended. How often will the Board.

require that this be made clear? If saying it:in four

different ways is insufficient, what will satisfy the

Board? Or are we to. assume’ that only a declaration

compelled by a Board Order is enough? = *

-

And the fourth is demonstrated experience. Hono-

lulu Star-Bulletin (atypage 57%) and News Syndicate

(at pages 331-334) Doth show. that Union foremen do,

in fact, perform their duties Wu_ non-diseriminatory

_ fashion.. The Board’s speculativé \vpothesis assumes.

that foremen would disregard th quirements of law,

the agreement between the parties, the oft- -repeated

position of the ITU, and practical industrial experi-

ence in order to discriminate in hire. This per se rule.

is yet another instance of the Board’s ‘‘mental pole

vaulting with only a presumption as a pole’. NLRB

v. Insurance Agents, 361 U.S. 477, 482-83, -n. 4 & 5:

Since the presumption: here is that a citizen will violate

vw law (Enterprise Industrial Piping, 117 ana ji

») it is doubly offensive.”

a as

The cases cited at Bd..br. pp. 29- 31, .,14, are not contrary

to Honolulu Star-Bulletin and News Syadicaté, which we have

shown (Br. p. 34) reject the Enterprise ‘‘principle.’’ In United

States Steel Corp. v. NLRB, No. 311, this Term, petitioners ey 7

on Honolulu as establishing a conflict. (Pet. for cert. pp. 12-13).

‘ v

_

~~”

91

Par

The Board ig Ariat (p. 32) now embraces the ground

of decision adopted by the court below (R. 522) (but

not relied on by the Board theretofore) that the ‘‘etfect

of the (foreman) clause would be to cause the. employ-

ers to discriminate in favor of union men thereby

éncouraging aspirants for that position to join the

union’? (See our principal brief, pp. 36. 37). This

was not put in issue by the complaint (Morgan v. U. S..

304 U.S. 1; Consolidated Edison v. NLRB, 305 U.S.

197, 238); was not found b, the Trial Examiner (R.

449) ; and no party excepted to the failure to so find.

See § 102.46(b) of t oard’s Rules and Regulatiens

by which the Board is, Nef-course, bound. Vitarelli vy.

Seaton, 359 US, 535° This policy is embodied in

§10(e). NLRB v. Cheney Cal. Lumber Co., 327°US.

385 and other a cited in pet. for cert. in NLRB v.-

Brandman Iron Co., #646, this Term, p. 6. And the

Board did not so find (See R. 480-481). An examina-

.tion of Pacitie Shipowners Association, 98 NLRB 582,

demonstrates that the Board has rejected-this ground,

of decision, as we said. in our prineipal (brief (p. 36).

The Board’s reliance on a dictum therein 1. br. p. 32,

n. 16),.dealing with an entirely different Set of facts,

to support the decision’ of the court below does no

more than indicate the Board’s eagerness to show that

-the conduct here complained of was unlawful. by any

_ means." Indeed, is. Shipowners additionally re-

The Board, however, says that it does ‘‘not conflict in spineishe

with decision here’’ (in U.S. Steel) but is ‘‘distinguishable on

its facts."" (Memorandum for NLRB in Opposition, p. 3, n. 2).

In each of the oiher cases cited here by the Board: there were

findings. of actual discrimination. ;

" Since. our principal ‘brief was filed, the Court of Appeals for

the District of Columbia Cireuit enforced, with modifications, the

Soard’s order i in Detroit Assoc iation of Plumbing Contractors, 127

_. restatement of the Questions Preserited (Bd. “br. pp.

fie ; | 22

futes the Board’s metaphysical contention (critical to

its 8(b) (2) and 8(b) (1) (B) arguments) that the

foreman clause would limit the dmployer’s choice of.

supervisors in a sense cognizable hy the statute. (Bd.

br. p. 33, n..17; pp. 39-40, 'n. 22).' The opinion made

clear that the statutory exclusion involved both being

and becoming a ‘‘supervigor’’. 98 NLRB at 596-97.

ee . © ha 7 : :

Ill, THE STATUTORY OBLIGATION TO BARGAIN

. WAS FULFILLED.

While the demonstrated legality of ‘the Laws and

foreman clauses disposes of the case, as the Board’s

4-5) correctly recognizes,a few words on the —_ S

discussion .of the refusal to bargain issue (which’ is

not inyolyed in #339) will not be amiss. os

". Most significant is what the Board. does not say.:

_Its brief makes no mention of NZRB v.. Insurance

Agents, 361 U.S. 477, this Court’s recent and thorough

NLRB No. 28, cited at p..35. Local 636, Plumbers, v. NLRB, |...

F.2d ....,47 LRRM 2757 (January 19, 1961). The Board has not

cited this case in its subsequently-filed brief, though we concede

that the opinion is in certain respects at variance with our argu-

ment herein. We shall not therefore undértake to démonstrate

what we feel to be ‘the numerous errors in that opinion, thé most

serious of which is the holding that Section 14 (a) of the Act

limits supervisors to non-participating membership in unions. -Id.

at 2762. This is not ‘‘the basis which they enjoyed before passage

of the Wagner Act’’ (See our principa] brief, pp. 31,33). The

Board fails‘even to mention in its brief the impact of the amend-

‘ments to Sections 2(3), 2(11) and 14 (a) of the Act in 1947.

‘Indeed, the Board seeks to establish infringement of employees’

. Section 7 rights on the authority of a case decided before these

_ amendments removed supervisors from the definition of .employee.

(Bd. br. p. 33, n..18). : This silence almost of necessity precludes

further discussion of this issue. : i

2

, analysis 6f the obligation to bargain. We think this

. case is deéisive ; it holds that the Board may not intrude

itself into the ‘substantive aspects of the bargaining

process”’ (id. at 498). (Br. pp. 29, 39, 48). And: it~

definés a union’s obligation to bargain in terms which |

were seek satisfied here. For it is. conceded by the

d and the Court bélow that the unions ‘‘ap-

hed the bargaining table with [an] attitude of

ates to reach agreemeut.’’ (id. 487).% = «sit

The Board’s sole citation (Bd. br. p. 34) of the othes

leading..case, NLRB v. American National Ins. Co.,

- 343 U.S. 395, is in support of a proposition which this

Court expressly ‘‘put aside’? and which is therefore

not ‘‘settled:’’* (Bd. br. p. 35)’ We reassert that the

Board’s approach here\and.the standard applied by the

Court below (R. 522)" cannot be squared with that

decision. ;

= There is no finding here, as in the ANPA case (to which ref-

erence is made at 361 U.S. “487, n. 13) that the union entered

inte ‘‘negotiations with a fixed and determined purpose of avojd-

. ing the making of an agreement.’’ 193 F. 2d 782, 804.

‘NLRB v. National Maritime Union, 78 NLRB 971, enf’d 175

F. 2d 686, (CA 2) cert. denied, 338 U.S. 954, (Bd: br. p. 34) is

“ not, in any event, in point-since the Board found that the NMU_

insisted on the perpetuation of an ilegal hiring arrangement with

the intention that it continue to be applied discriminatorily. 78

NLRB at 977, 978, 982. The Court of Appeals did pat discuss |

this issue,

4 Indeeds we suggest that the ‘theciiaata at R. 522-23.and R:

525-26 is inconsistent with the Court's own analysis of the duty

to bargain in connection with the jurisdiction clause. (R. 520)

And since the clauses were concededly of ‘‘honestly disputable

‘validity ’’ (R. 525, Bd. br. P. 15), and ‘‘good faith’’ is the statutory |

standard, we think there is more eloquence than reason in the

statement that ‘‘to hold that good faith is a defense to the charge

of refusal to bargain when the contract provision insisted on is

illegal per se is to put a premium on ignorance of the law or blind

intransigency.’’ (R. 522-23).

24

The Yeach of thc Board's argument from NLRB

_¥. Wooster. Division of Borg-Warner, 356°U.S. 342

(Bd. br: pp. 35-36) is not clear. If it is intended to

' suggest that the matters here in issue were not subjects .

of “‘mandatory bargaining’’ within the meaning of that:

ease (356 U.S. at 349) the argument is not open on

this record. The Trial Examiner made no such finding ;

the General Counsel specifically excepted to his failure

to do so (See Exceptions to Intermediate Report of

(ieneral Counsel, No, 5), but the Board made no such -

finding. In any event, it is clear that matters such as

upprenticeships, priority, hire, discharge and the other .

areas covered by the General Laws and the duties of

the foreman are embraced within ‘other terms and

conditions of employment,’’ as set forth in Section

-8(d). Thus as to these matters, while bargaining is

required, agreement is not, and either party may in-

' sist upon its version of the substantive bargain, includ-

-ing adherence to the General Laws upon any subject

* not covered by the agreement, at least so long as it has

been made clear. that no General Law is to apply where

its enforcement might result in a violation of law.

Agreement upon these subject matters as proposed by

the Unions does not detract from an obligation imposed

by. the statute, as was true ‘of the recognition clause

‘in Borg-Warner, nor does it interfere with representa-

tion rights, as this Court said of the ‘‘ballot”’ clause in

that case (See p. 350). They are ‘the tratfional stuff

of collective bargaining. As the Court made plain in

NLRB vy. Insurance Agents, 361 U.S. 477, at 487, Borg-*

Warner still is based on the principle ‘that the obliga- .

tion under Section 8 (b)(3) is to bargain in “* good

faith.” Here ‘‘good faith’? was expressly found. (R.

256; 517, 525). | ;

ae

_ Iv. THE ITU 18 NOT A BARGAINING REPRESENTATIVE OF

‘THESE EMPLOYEES.

The Board declares that its ‘holding in this case”

does not mean “that an international will always be

held responsible for the acts of its locals, notwithstand-

ing that its constitution and by -laws disélaim such re-

sponsibility’’ (Bd. br. pp. 42-43, n. 24). We are pleased

to learn this, but are puzzled what the criteria for

decision are, since the Board. adheres to its view that

the ITU is responsible. It cannot be that ITU officials

‘pursuant to authority vested in them by the ITU,

ealled strikés,’’ (Bd. br. p. 42). We have shown that

they had no such:authority, Br. p. 44, par. (g), and

while they sanctioned, did'not call, the strikes for whic

the members of the locals had voted in both instances.

(R. 100, 224). Nor can it be because ‘‘Lyon and La

Mothe participated in the negotiations mainly to fur-

’ ther’? these [allegedly illegal] policies. (Bd. br. p. 42,

emphasis supplied). The Board did not so fiftd (See

R. 459), and their actual role was as set forth at p.

44, par. (f) of our brief. Indeed, to the extent that.

illegality is sought to be predicated on thé foreman

clause, it may be noted that the approved contract in

the Honolulu case did not require the union member _

to be a foreman.”

SE

3 See Joint Appendix, Honolulu Star-Bulletin v. NLRB, CADC

315,044, p. 159. The amicus brief in this case relies also on

.the communications sent by the President of JTU advising that

the foreman clause was not an issue in the strike at Worcester.

(Br. amicus, p. 23). Since the Board would have instituted con-

tempt p ings if they had not been sent it would have been

**the most indefensible sort of entrapment™ for the Board to draw

any inference of ITU responsibility from them. Compare Raley v.

Ohio,.360 U.S, 423, 438.. The Board properly @id not do so.

oO

Ff

26

The cases cited. by the Board (Bd. br. p. 42, n. 24)

do not shake our conviction that an international and

one of its locals cannot both be the exclusive bargaining’

agent of the same employees. (Br. pp. 44-48). We.

have previously discussed ANP A (Br. p. 46). In May .

Board consisting of several unjons, had -been certified

as the..single bargaining representative. In NLRB

v. E. A. Laboratories, 188 F. 2d 885, 888 the Board

ordered the employer to bargain with the International

alone, the Local being defunct." . |

Vv. THE BOARD’S ‘UNLAWFULLY BROAD ORDER COMPOUNDS

AND REFLECTS ITS ERRORS ON THE MERITS.

_ Department Stores v. NLRB, ‘. U.S. 376, 381 a Joint.

The Board says that its Order is *‘well adapted to |

the situation which calls for redress” (Br. 40).. The

Board throughout insists that the “situation which -.

calls for redress” is that some unidentified employees

might mis-read the plain language of the agreement, If

these employees cannot read ‘an agreement, what war-

rant is there for assuming that they can read an Order?

The Order (R. 482, 484) proposes. that these em-

ployees are to be told in four separate paragraphs

A1(a) (2), (3); 1I(a) (2), (3)) that the.petitioners are

; not to violate ‘Section 8(a)(3) of the Act”. Will

‘this give them the blissful reassurance which “not in

conflict with law’’’ does not? The Order is, indeed, ies

' Nor is it relevant that in the E. A. case the local and inter-

national liad originally both been parties to the agreement, by their,

own choice. Compare Borg-Warner, 113 NLRB 1288, aff’d 356

U.S. 342: “The Respondent recognized that the Local and the

International were, in fact, separate entities . . ” the recognition

clause originally proposed by the International inclided the name

of the Local as a separate party wherefs.the certification did not

do so.’’ 113 NLRB at 1292-93. ¢emphasis supplied) '-

27

woefully inadequate to the “situation which galls for

redress’’; the only appropriate -rémedy in th um-

stances would be the establishment of labor liw insti-

tutes at which all present and potential employees in

this industry could be taught that language means what

it says and that, under the Aét, the contract proposals

here in issue can be, and have been, lawfully applied.

It might, of course, be diffigult to staff. such schools,

when the instructors would be aware that any misstate-

ment of applicable precedents would bring “‘the swift

‘retribution of. contempt”. NLRB v. Stowe ‘Spinning

Co., 336 U.S. 226, 233; but many hours of gainful

euxployment would be created by interesting discus-

sions as to which of the General Laws might.be law-

' fully or unlawfully — and under what cireum-

stances.

The Board’s discussion rather artfully poaeee. a

‘only a stubborn refusal of the ITU to modify certain

language in its General Laws is involved, and that if it

would be complaisant and undertake this simple task,

all would be well. But we have shown that this mas- .

- sive assault on the General ‘Laws involves '‘basie and

important questions. (pp.-14-16, supra.)

a. First, and perbaps most important, is the extent

of the Board’s power to supervise the collective bar-

' gaining process. By insisting that the proposed Gen-

eral Laws clause incorporates i in the agreement matters

specifically excluded thetefrom, contrary to the rule in

Guerini Stone Co. v. P. J. Carlin Construction Co., 240

U.S. 264, 277, the Board is asserting a general ‘power

to intermeddle in the negotiation of agreements, con-

trary, we assert, to the rule iaid down by this Court in

28

‘NLRB vy. American Insurance Co., 343 U.S. 395, 404;

———._ Carperiters’ Union—+._NLRB, 337 U.S. -93, 108;—

Teamsters Union v. Oliver, 358 U.S. 283, 295; NLRB

v. Insurance Agents, 361 U.S, 477, 490, 498. We have

discussed this issue passim in our. principal brief.

b. Of substantially equal importance is the power of

the Board to interfere in internal Union affairs, a

matter which the Congress expressly left untouched by

the statiite (See our principal brief, p. 21, n. 12). It is

not disputed that all General Laws can-be- validly ap-

plied under certain circumstances. If, and when, (as

has not yet occurred), some General Law is illegally

applied, the sanctions of the Act will be available. We

assert that:the democratic right of Union members to .

‘adopt such rules for thetr governance as they choose;

‘ of Government supervision, is a weightier eonsid-

tion than the: slight chance that such freedom may

: aa in a-violation of law. When one recalls the

critical importance of the issue of Governmental con-_

+ trol of the internal affairs of-trade unions in the com-

‘ paratively recent history of Soviet Russia, Fascist

Italy, Nazi Germany and other countries, the Board’s

insensitivity to the problems with which it deals is

. revealed by its dismissal ofthis subject as ‘‘somewhat

academic’”’ (Bd. br. p. 25).

¢. The Board suggests that its concern '3 with the

language, not the substance, of the General Laws. (Bd.

br. p. 41). Nothing could be further from the truth.

‘ Pursuant to a decree of a District Court, (Alpert v:

» ITU, 161 F. Supp. 427), revised General Laws, ¢on-

‘ taining no requirements of union membership, for em- -

“ployment,” were ‘submitted. —— were referred by the

29

Court to the Board’s General Counsel for_comment."

and as the Court noted thereafter,

. the number of items which petitioner (Gien--

sal r ‘ounsel) still contests are ext@hsive; indeed,

' petitioner now objects to more thin he did origi-

nally, T will not, and in my opinion could not,

_ revise and rewrite the General Laws into some new

form that might or —, not meet the future ap-

proval of the parties .. .”” (at page 432, emphasis

- supplied). °

Concluding that it was impossible to satisfy the Board”

on this issue, the Court thereypon relieved the union

of a stipulation that it attempt to do so, in order that

collective bargaining to settle a strike might proceed.

This is the ‘‘definite standard’’ which the Board has

provided (Bd. br. p. 41). ‘See also Appendix B to our

principal brief whose significance the Board entirely

ignores. It is entirely plain that contempt action will

follow if this task is attempted. . The impossibility

of compliance is neatly illustrated by y last two

eases set forth in Appendix B: Tribune Spreng

Co., et al., 20-CA-1983, ete., Newspaper Agenéy Corp.,

et al., 20-CA-1556, ete. The eomplaints.in those eases

were issued .on the same day, by the same Regional

Office, and were signed by the same person. - Fach

attacks a different set of laws.

'? These comments attacked thirty-seven of the General Laws as.

revised, including Article ‘I, Section 1 which, as we noted in our

main brief (pp: 25-26), was ‘designed to prevent the exploitation

of child labor, The General Counsel appended these comments

to his brief to the Board in this case, on file with the clerk of this

Court. They are instructive as th est reach to date of the

_ Board's technique of surmise aan suspicion. Yet the ingenuity

of the Board and its agents .is such that we may expect even

‘wilder flights of faney if this Court d not call a halt in the

ITU cases and in Local 357, IBF v. NLRB, No. 64, this Term.

' 1875 Cong. Ree. 4918. (1932) :

‘The Board’s Mountain Pacific, 119 NLRB 883 and

Pacific Intermountain Express, 107 NLRB-837 doc-

trines, and its conduct in these cases, demonstrate a

consistent effort to drive unions from any meaningful

participation in decisions affecting indu@rial enter-

prises. It is our view that the national labor policy—

the encouragement-of collective bargaining—looks in

an exactly opposite direction, to greater sharing

in the making of such decisions. Under such a policy -

the dignity of workers is enhanced, industrial strife is

avoided, and responsible citizenship is encouraged. At

bottom, the Board embraces ‘the feudal concept. of.

master and serf. It attempts. to achieve these results

by mis-reading the decisions of this Court in Radio °

Officers and in Borg-Warner; the former as eliminat-

ing the words “‘by discrimination” in Section 8(a) (3)

and the latter as curtailing the freedom to bargain,

when: that case dealt solely with the Board’s power to

compel bargaining in aid of the statutory: — ( See

Bd. br. pp. 35-36).

The architect of the national. labor poliey, Senator -

Wagner, set forth its true goal — the tated on

the N orris-LaGuardia Act :"*

“We can raise a race oft men who are economically

as well as politically free. By permitting labor to

organize freely and effectively we can convert the

relation of master and servant into an equal and

co-operative partnership, shouldering alike the r -

sponsibilities of management -and sharing-alike iu

the rewards of increasing production.

‘“To me the organization of labor holds forth far

greater possibilities than shorter hours and better -

wages, Organization plants:in the heart of every

worker a sense of power and naty viduality, a feel-

—— a° :

b

31

83 at as

ing of freedom and security, which are the charac-. -

teristics of the kind-of men Divine Prov idence in-

tended us to be.”’

‘CONCLUSION

te de reasons stated in our principal brief and

herein, we submit that the answer to the Board 'p prin-*

cipal question (Bd. br. p. 4), ‘‘Whether the Board

properly concluded that acceptance of the proposed -

_ Laws and foreman clauses would have established. an

employment system which conditioned employment

2 upon union membership, in violation of Section 8(a)

(3) and 8(b) (2) of the National Labor Relations Act”’ °

is ‘‘No.”’ Our principal ground is the demonstration,

which is not and: cannot be challenged here, that such

agreements can be and have been lawfully applied. and

that speculation concerning the manner in which they

might be administered is therefore entirely inappro-

priate. ‘We agree with the Board that the remaining

questions presented (Bd. br. p. 5) are reached only if

the principal. question is answered in the affirmative;

the answer to them is also ‘‘No,”’ ©

Respectfully submitted,

GERHARD VAN ARKEI.

HENRY KalIserR

GEoRGE KAUFMANN

1730 “K Street, N.W.

Washington 6, D.C.

_ Rosert M. Seca

ARTHUR J. FLAMM

‘11 Beacon Street.

Boston 8, Massachusetts.

- Attorneys for Petitioners.