Amicus Curiae Brief — Nash v. Florida Industrial Commission

Supreme Court brief1967

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CITATIONS j

Cases: Bef et g ne te |

Auto Workers Vv. O’Brien, 389 U.S. 454 7 F

Bethlehem Steel Co. v. New York State Labor Re- ; :

lations Board, 330 U.S.:767 ae hain 7 ’

Cannery Workers Union, etc., 159 NLRB No. 47 .. 10 —

Gibbs Corp., 181 NLRB 955, enforced, 808 F. 2d \

EMTS SRR aie cee 9

Hercules Powder Co. Vv. National Lator Relations -

Board, 297 F. 2d 424.......... alsin. 9 '

Hill v. Florida, 325 U.S. 588 .....0.......0:.ccccleseseeee- Oa 7

‘ Industrial Union of Marine and Shipbuilding

' Workers v. National Labor Relations Board, 65

LRRM 2629, setting aside 159 NLRB No, 95 ...... “10.

_. John Hancock Mutual Life Insurance:Co. v. Na- ©

tional Labor Relations Board, 191 F. 2d 483 ....... .

Local 188, Operating Engineers (Skura),. 148 * &

| ___ RRAI A ir Se AEEEN S e N 8,10 4

Local 743, Int. Ass’n of Machinists v. United Air- 5

- eraft Corp., 887 F. 2d 5. —

Mortensen v. Board of Review, 21 N.J. 242, 121 :

i ARETE IEA NEA ERT a AA NRE 18 - 2

Moving Pictures Machine Oyivaiere v. National 1, .

: Labor Relations Board, 65 LRRM 3020 ................ 10 “

— National Labor Relations Board v. Clearfield

Cheese Co.,.213 F. 2d 70, anes 106 NLRB q

cu |" SERN qieibidiabuignichadbinaidiaasaalibscesbisiataneda cities 9 .

National Labor Relations Board Vv. Gullett Gin Co., | |

BD WI WUUED: - dan teteecheanacntanchsniopstieanienicinnn 15

National Labor Relations rece v. Lamar Cream-

ery Co., 246 F. 2d 8 ......::.............. a

National Labor. Relations Board v. Syracuse

>, if Rg TIES Ba MIE WW “ncn cnnintenencienteienmeyesanecans 9

National Licorice Co. V. National coher Relations

Board, 309 of Saas aoe pallies —

_ Cases—Continued ! ts ; Page

North River ices Co., In the Matter of, 15

Wash. 2d I I ic 13

Roberts Vv. National Labor Relations Board, 350

F.-2d 427, enforcing 148 NLRB 674 ..: . 9-10 ©

San Diego Building Trades Council v. ‘Garmon, —

I NS iat a ae

Sherbert v. Verner, 374 U.S. 398... | 7

Speiser Vv. Randall, 357 U.S. 518 7

Terral v. Burke Construction, Co., 257 USS. 529 ar 7,10

- Testa v. Katt, 330 U.S. 386 15

Unemployment Compensation Commission of Alas- ee

ka Vv. Aragon, 329 USS. 148 ... 13

Statutes:

National Labor ‘Relations Act, as amended (29 .

U.S.C. 151, et seq.) : | \

Sark SRM Rare aY Cote Gre Serta if

SII Recension sai

Section_ 8 (a) ERTS CARRE oth

Section 8(a) (8) ...0.....0:.00....

Section 8(a) (4) oc... aceite

Sédction S(a) (6). 2... .ccccccecccoceccces EAR ee .

Section 8(b) (1) (A) ou...

I es er

Section 10(a) ..... sntsnnsnipth peanceanianintvennssnniialbsendbann

‘Section 10(b) 00.1...

Florida Unemployment Compensation Law:

Section singe RURAL RMA ate dr one Me 4,6,12 -

§9 §9

Miscellaneous:

Lesser, Labor Disputes & Unemployment Compen-

sation, 55 Yale L. J. 167 (1945) 13

. . Lewis, The Concept of “Labor Dispites” in State

Unemployment Insurance Laws, 8 B.C. Ind. &

Comeaiy Rin. Bmw, CIGD i ceseccisinctisasteseesicenee 13

- Lewis, Unemployment Compensation in Labor Dis-

putes, (Upjohn ‘Institute for Employment Re-

Oeeren, BONG) oe 12 «

Note, Unconstitutional Conditions, 73. Harv. L.

‘Rev. 1595 (1960) ‘ilibiaiuibidanddiaataad veohicdiel ' S.

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ihe . Sea ane ote MUR at Mayes

ab ASA MI ana on ma a te tne Ne nl ot eect athe 7 20 RRS Attn atti Deb lim .

| Iu-the Supreme Court of the United States

OCTOBER TERM, 1967

No. 48 .

‘MINNIE E. NASH, PETITIONER

Sen v..

_ FLORIDA INDUSTRIAL COMMISSION, ET AL. |

ON WRIT OF CERTIORARI TO THE DISTRICT COURT

OF sealed OF FLORIDA, THIRD DISTRICT

MEMORANDUM FOR THE NATIONAL LABOR

RELATIONS BOARD AS AMICUS CURIAE

Petitioner challenges the holding of the Flordia In-

dustrial Commission * that she was disqualified to re-

ceive State unemployment compensation, to which she

was otherwise entitled, solely because she had filed un-

fair labor practice charges with the National Labor

Relations Board contesting the lawfulness of her.dis-

1The decision of the Desssiniaston’ s Appeals Referee (R.

. 34-40) was affirmed without opinion by the -Commission’s

Board of Review. A petition for a writ of certiorari to the.

Commission. (R. 49- 50) ‘was denied by the Florida District

Court of Appeal (R. 58-59). This Court granted a writ of

certiorari to the Florida District Court of Appeal. (R. 61;

386 U.S. 990).

(1)

LEELELLIE, PEPE LOF

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alibi Bei ci EG 5 ces Ac hs 0 Me SOS

missal from employment. Because we believe that the

decision below conflicts with the National Labor Re-

lations Act (29 U.S.C. 151, et seg.) and. would seri-

ously impair the work of the National Labor Relations |

Board-in administering that Act, we file this memo-

randum, amicus curiae, urging reversal.

_ STATEMENT |

The relevant facts are not disputed. ‘Pétitioner, -

Minnie Nash, began working for respondent, Stanley

- Building Specialties Company, a division of respon-

dent Stanley Works, in 1961 or 1962 (R. 14, 35). On-

Januaty 31, 1965, she joined a strike against the Com-

pany called by the Steelworkers Union, the employ-

ees’ certified bargaining representative, in support of

its effort to negotiate a new contract (R. 11- 12, 14,

35). The strike failed to close down the Company’ S

operations, and, on March 30, the Union uncondition-

ally offered to return the strikers to their jobs (R. 12,

739). On April 5, the Company agreed to take back

some of the strikers, including Nash, and the picket-_

ing was terminated (R. 12, 15, 35). On. April 6, the

Union ° filed charges with the National Labor Rela-

tions Board, alleging that the Compaiiy’s refusal to,

reinstate the remaining strikers violated Section 8 (a)

(3) and (1) of the National Labor Relations Act.

(R. 12, 36). .

8 Section 8(a) (3) makes it an unfair labor practice for an

employer “by. discrimination in regard to hire or tenure of

employment or any term or condition of employment to en- .

courage or discourage membership in any labor organization

tals — 8(a) (1) makes it an unfair labor practice for

® : oe se ae Wat na i te AD

3 | |

Nash returned to work on April 14, 1965 (R. 15, ° f

36). On May 16, she. was laid off by the Company .

due to “slow production”, and she immediately applied |

to the Florida Industrial Commission for -unemploy-

ment compensation (R. 1, 13, 15, 26) and began -re-°

_ ceiving such benefits as of that date (R. 18). On June

_ 17, the Union filed charges with the Board on behalf ©

of Nash, alleging that her layoff violated Section 8(a) |

(3) and (1) of the Act (R. 18, 15, 36). Nash con. |

an employer “to interfere with, restrain, or coerce employees _

in the exercise of the rights guaranteed in section 7”, which |

includes the right to strike. The charges filed on April 6, 1965,

were subsequently sustained by the Board. See, infra, n. 3. j

On August 13, 1965, the Board’s General Counsel issued a

complaint incorporating the charges with respect to Nash and

other employees who had been laid-off, as well as the charges ;

previously filed on April 6 with respect to employees whom ;

the Company had refused to reinstate at.the end of the strike.

The complaint was sustained by the Board on August 8,

1967 (166 NLRB No. 110). The Board held that the strike

which had begun on January 31, 1965, was caused by the .

Company’s failure to bargain-in good faith as required by

Séction 8(a) (5) and (1) and was, therefore, an unfair labor

practice strike. The Board further held that the Company

was obliged to reinstate the strikers at the end of the strike

in April 1965 and that it was a violation of Sections 8(a) (3)

and (1) subsequently to lay-off reinstated strikers in prefer-

ence to employees hired as replacements during the strike. .

The Board ordered the Company to “offer all the strikers,

including those who were reinstated but subsequently laid off,

full.and immediate reinstatement to their prestrike or sub-

stantially equivalent. jobs with all the rights and benefits

they would have accumulated but for the discrimination

against them,” together with back pay (166 NLRB..No. 110,

p. 12). Petitions to review the Board’s. decision 4nd_order :

have been filed in the Courts of Appeals for the Sixth (18100) of

and the District of Columbia (21193) Circuits.

Pest ey ?

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Pri As Lovett!

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tinued to receive unemployment compensation. until

October 5, when the Company voluntarily ae .

her (R. 16, 21, 36).

On November 15, however, the Claims Examiner

for the Florida Industrial Commission notified Nash

that her claim for unemployment compensation had

been reexamined and that, under Section 443.06(4)

’ of the Florida Unemployment Compensation Law, she _

was “disqualified beginning January 31, 1965, and

for the duration of [her] unemployment which ‘is due

to the labor dispute at [the Company]. ” (R.. 3, 35.)

‘Section, 443.06 provides:

“® An individual shall be disqualified for [un-

employment] benefits * * * (4) For any week

_ with respect to which the commission finds that

his total or partial unemployment is due to a

labor dispute in active progress which ‘exists at

the factory, establishment or other premises at .

which he is or was last employed * * *.

Nash appealed to the Appeals Referee of the Flor-

‘ida Industrial Commission, who found that Nash was

entitled to unemployment compensation for: the pe-

riod starting-on May 16, when she had been laid off,

to.June 17, when she filed charges with the Board.

As to that period, the - Referee’s’ opinion states (R.

39): } |

| As [Nash] was separated from ‘her job on

May 16, 1965, due to “slow production” and did

not dispute’ such separation | until June 17, 1965,

it should be held that she is qualified for benefits

* * * for the period beginning May 16, 1965, to

June 17, 1965. Granted, there was a labor dis-

pute in active progress * * * on May 16,°1965,

‘(such dispute being the labor controversy mani-

. fested by the charges with the National Labér

Relations Board filed on April 6, 1965, by those.

workers who were not returned to their jobs and

those charges being unresolved and pending * ** .

on May 16, 1965). But [Nash’s] becoming un-

employed on May 16, 1965, was not due to this

dispute. bccn

On the other hand, the Referee found that Nash be-

came disqualified for compensation on June 17, when

she filed charges with the’ Board contesting her -lay-

off, and remained disqualified until she was reem- —

ployed on October 5, The Referee stated (R. 38):

* * * These charges being filed and being un-

resolved and pending as of the date [Nash] re-

‘ turned to work constitute a labor dispute in ac-.

ive progress at the premises at which she was

_ ht employed between Nash and the [Company].

| Consequently, here, it should be deemed that any

unemployment [Nash] experienced during the

/period beginning June 17, 1965, to October 5,

1965, is due to a labor dispute in active progress

at the premises at which she was last employed

and she participated in such dispute. * * ** ©

The Florida Industrial Commission summarily af-

_ firmed the Referee’s decision (R. 48), and the

* The Referee also found that Nash was disqualified for the

period January 31 to April 14, since her unemployment then

was due to a strike against the Company in. which she par-

ticipated (R. 36, 38). Nash had neither claimed nor received

benefits for that period. ‘ ih

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Florida District Court of Appeal denied review (BR.

58-59) .° .

DISCUSSION

The Florida. unemployment compensation law dis-

qualifies an individyal for. compensation . for, any

week in which’ he was unemployed “due to a labor

dispute in active progress which exists at the factory

- * * * at which he * * * was last employed” (Section

448.06(4)). The Florida Industrial Commission has

held that the mere filing of unfair labor practice

charges with the Labor Board, alleging: that employ-

ment was terminated in violation of the National

Labor Relations Act, creates a disqualifying “labor

dispute” within the meaning of the statute.. The de-

cision below leaves no doubt that, but for the filing of

charges, petitioner would have been entitled to con-

tinue receiving benefits. Thus the referee explicitly

' found that petitioner was qualified for benefits at the

time she was laid off because the lay-off was not due

to a labor dispute, that she remained qualified up

to the date on which charges were filed, but that her - |

unemployment thereafter is “deemed” to -be due to

-.a labor dispute (R. 38-39). Although petitioner ~

urges, inter alia, that the decision below abridges the

privileges and immunities of national ctsenenip and,

5 At each stage of the suniiiiinalis below Nash urged that a

construction of the Florida Unemployment Compensation Act

that would deny her benefits because she authorized the filing ~

of charges with the Board would violate both the supremacy -

clause of the United States Constitution and the privileges

and immunities clause of the Fourteenth Amendment (R. 22-

_ 25, 41-42, 50).

hence, violates the Fourteenth Amendment ‘(Pet, 13-. °

15), we confine ourselves here to showing that the

decision must be set aside as inconsistent with the

National. Labor Relations Act.-

1. Within broad limits, Florida is unquestionably

free to prescribe the conditions: upon which employees.

are entitled to receive the benefits of ‘the State’s un- ©

— compensation. ‘system. Nevertheless, a

“state may not so deal with matters left to its control

as to stand ‘as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress.’” Bethlehem Steel Co. v. New York State

Labor Relations Board, 330 U.S.'767, 773, Thus, this

Court .has frequently set aside State - regulatory

schemes found to impair rights created by the Na-

tional Labor Relations Act. See Hill v. Florida, 325

U.S, 588;° Auto Workers v. O’Brien, 339.U.S. 454;

ef. San Diego Building Trades Council v. Garmon,

359 U.S. 236. And the conditions that a State may

impose upon a grant of benefits are likewise subject

to scrutiny to insure consistency with federal pol-

icy. It is quite clear a State cannot~condition

the grant of benefits in a manner that undermines

rights protected by the Constitution ‘or frustrates

federal legislation. See Sherbert v. Verner, 374 U.S.

898; Speiser v. Randall, 357 U.S. 513; Terral v.

_ Burke Construction Co., 257 U.S. 529; Note, Un-

In Hill, a Florida statute precluding persons from hota

as union business agents, unless they first obtained a license

from, and met certain qualifications imposed by, the State, was

struck down-as an undue interference with the employees’

right freely to choose their own bargaining representatives,

guaranteed by Section 7 of the National Labor Relations Act.

REPT ee ee eee

Se es

WB er 4 ‘ . we * . d

a sAhaia alah Rid lash aida aaeik G wl tear we in aos relat anni es

constitutional Conditions, 73 Harv. L. Rev. 1595

(1960).

In the: exercise of its powers com the Comimeree- 3

Clause, Congress has authorized the Labor Board to

serve as a. tribunal for the prevention of the unfair

labor practices proscribed in -Section’8 of the Na- °

“tional Labor Relations Act and the protection of the

rights’ guaranteed by Section 7 of the Act. The

Board’s adjudicatory function under Section 10 of

the Act is thus an integral part of the congressional

labor program. Section 10 presupposes that employees

and other individuals are free to file with the Board

charges that unions or employers have committed

unfair labor practices. Indeed, as the’ Board has

pointed out, the right to file such charges is “indis-

pens the administration of the Act.” Local

138,\Operating Engineers (Skura), 148 NLRB 679,

681. For, although Section 10(a) of the- Act em-

- powers the Board to prevent unfair labor practices,’

and thus to protect the employees’ Section- 7 rights,

Section 10(b) conditions the exercise of that power

on the filing of charges; * the Board cannot initiate its

7 Section 10(a) provides, in pertinent part: “The Board is

empowered, as hereinafter provided, to prevent any person

. from engaging in any unfair labor practice (listed in section

8) affecting commerce. This power shall not be affected by

any other means of. adjustment or prevention that has been

or may be established by ‘agreement, law, or otherwise: si ik

® Section 10 (b) provides, in pertinent part: “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 * * *.”

. ; rae

OWg processes. Hercules Powder Co. v. National La- .

- bor Relations Board, 297 F. 2d 424, 433 (C.A. 5).

Accordingly, protection of the right to file charges |

' with the Board is a critical prerequisite to the pro-. , °° §f

tection of other fights under Section 7 and to the ~

_ effective discharge of the Board’s statutory responsi-

bilities, u cere ne

The importance to the congressional scheme of ‘pro-

- tecting employees’ freedom of access to the Board’s.

processes is manifested by Section ’8(a) (4) of the Act

which expressly makes it an unfair labor gactice for 4

an employer to discriminate ‘against an employee be-

cause he has filed cHarges.’ Funthermore, it has been .

held_that the right/to file-charges with the Board is. m

encompassed within—the ‘rights guaranteed to em--

ployees by Section 7 of the National Labor Relations ©.

‘’ Act—so that an employer violates Section 8(a) (1), -

= and a‘ union Section 8(b) (1) (A), if eitHler restrains

‘an employee in the exercise of his right to file such

charges.” oO, a :

* John Hancock Mutual Life Insurance Co. v. Nattonal Labor

Relations Board, 191 F.2d 483, 485-486 (C.A.D.C.) ; National

Labor Rylations Board v. Lamar Creamery. Co.; 246 F. 2&

8, 9-10 (C.A. 5) ; National Labor Relations Board v. Syracuse

Stamping Co.,:208 F. 24.77, 80 (C.A. 2). See also Local 743,

Int. Ass’n of Machinists v. United Aircraft Corp., 337 F. 2d:

5, 8-9 (C.A. 2) (right to file charges with the Board cannot

be contracted away). ,* ‘

"National Labor Relations Board v. Clearfield Cheese Co.

.213 F, 2d 70 (C.A. 8), enforcing 106 NLRB. 417, 418 (em-

ployer promise of benefit to.induce withdrawal,of charges) ; ,

Gibbs Corp., 181 NLRB 955, 956, n. 1, 963, enforced, 308 F.2d. -

247 (C.A. 5) (discharge of employee believed to have filed

charges) ; Roberts v. National Labor Relations Board, 350.

“ ‘ ; r

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-- 2. The right to file charges, which has thus been

* protected against pressure from employers and unions,

is here gravely prejudiced by the ruling ef the Florida

Industrial Commission. Respondent employer" urges -

; that Florida has “merely put Petitioner .to an

. election of rights, ‘remedies and forums” (Stanley Br.

in Opp. 23; R. 27). Accepting that characterization,

- we deny that a State can force such an election where,

as here, to do so is to exact a heavy price for the as-

~ sertion of a federally created right. Terral v. Burke

Constr. Co., 257 U.S. 529. We think that this is par--

. ticularly clear where,. contrary: to the Commission’s

F. 2d 427 (C. A.D.C.), enforcing 148 NLRB 674 (union: fine

for filing charges) ; Local 138, Operating Engineers (Skura), . :

' 148 NLRB 679. (union fine); Cannery Workers Union, ete. —

159 NLRB No. 47, enforcement _— (C. * 9)- (union

pxpulsion).-

Cf. Fadusiriat Palen of Marine ‘oa Shipbuilding Workers. .

v. National Labor. Relations Board (C.A. 3), June 22, 1967,

65 LRRM 2629. Although the court there set aside the Board’s:

finding (see 159 NLRB No. 95) that the union violated Sec-

tion 8(b) (1) (A) of the Act by expelling an employee for

filing chaYges with the Board without first exhausting internal

-union ffrocedures, we believe that the court’s decision is

erroneops and in conflict with Roberts, supra. In any event,

the cou recognized that, in some instances at least, the right

to file a charge with the Board is protected by Section 7:of the

Act (see 65 LRRM at 2630-2631, 2632). See, also, Moving

Picture Machine Operators v. National Labor Relations Board,

'(C.A. 3) Anges 1, 1967, 65 LRRM 3020.

“1 Stanley Building Specialties and its parent firm; The

Stanley Works, were parties to the proceedings below. Their

interest in the cases lies in the fact that their experience rat-

ing under the Florida unemployment compensation system

would be adversely affectéd .if petitioner’s on, is allowed.

view (Commission Br. in ‘Opp. 14- 15), publicrather

~ than “purely private” rights are at stake. See Nat- |

ional Licori¢ge:Co, v. National Labor barnascaied Board,

309 U.S. 350, 362-363.2 :

Where a wage-earner has been laid off for reasons’

he believes 'to be invalid under the National Labor

Relations Act, the practical significance of the choice «

with which Florida confronts ‘him is obvious. On the

‘one hand, he can promptl ‘Pbtain unemployment com- __

pensation payments which may tide him over until, |

forégo such payments and file charges with the Labor

he find other employment... Alternatively, he can

ing in the hope that, after perhaps protracted liti-

gation, he will be awarded reinstatement with back

pay. The choice is thus between the immediate and the

eventual, the certain and the conjectural. We cannot

doubt that those alternatives are likely to‘deter resort

to the Labor Board. Even though an award of back

pay is potentially greater than the payments available -

under unemployment compensation, unemployed work- -

ers of modest means will be hard pYessed to pursue the |

_ remedy supplied by Congress if the State can require

them. to forego a present income as the price of doing.

so.

We note also that the Florida Hethitans provides a

potent weapon for combating unionization. An em- |

; 2 In National Licorice, supra, this Court Ghoarved: “The

' proceeding authorized to be taken by the Board .under the

National Labor Relations Act is not for the adjudication of

private rights. * * * Tlie Board acts in a public capacity to

give effect to the declared public ‘policy of the Act to eliminate

and prevent. obstructions to interstate commerce soo” S09

U.S. at 362.

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“~conclusign that the decision Below seriously impedes -.

= freedom of access to the Board, that it materially im-

ployer desirous of defeating a union drive might well

be encouraged to discharge union adherents, in the ex- ~

pectation that the discharged employee would be more

+ likely to collect unemployment compensation than to

file-charges with the Board, and that the cost of in-

_ creased contributions to the State unemployment in- |

surance fund would be small in comparison ad the

cost of haying to deal with a union.” -

In the circumstances, we sée no escape from the

pairs the capacity of the Board to vindicate important

' public rights, and’ that. it therefore subverts the poli-_

‘cles announeed by Congress in the National Labor Re-

- lation Act. oy

_° 8. Finally, we do not believe that the decision below

ean be justified as necessary for the protection of any’

State interest of compelling importance to which the

federal law must. or should defer. Petitioner was de-

nied benefits under a provision of the Florida statute

that disqualifies persons whose unemployment is “due

to a labor dispute.” This statutory disqualification,

which appears in the unemployment, compensation

laws of all the States, has been thought to take account ~

of the voluntary character of unemployment resulting

18 Numerous states have statutory provisions substantially ;

identical to those of Florida. See Lewis, Unemployment Com-

: pensation in Labor Disputes, 34-85, 37-38 (Upjohn Institute, -

for Employment Research, 1964). If the Florida -interpreta-

tion of its law is allowed to stand, theré is a danger that these -

other States will adopt a similar interpretation of their

laws. _ ,

a et Sain : | aS

from labor disputes and the desire-of States to remain ”

neutral and refraiif from subsidizing either side in la- °

_ bor-management controversies, especially where the

payment of benefits’ to strikers might tend to pro-

long the work stoppage. | See Lewis, The Concept of

“Labor Dis a im tate Unémployment Insurance ~°

Laws, 8 .B. Comm. L. Rev. 29 (1966) ;-

Lesser, itor pe utes and Unemployment Com-

pensation, 55 Yale LJ. 167 (1945); cf. Unem-

», ployment, Compensation Commission of Alaska v.°.:

~ Aragon, 329 U.S.- 148: We recognize that the

3 application of these principles may raise extremely — :

’ difficult questions in particular cases. Thus, when em-

ployees are thrown out of work through an anticipa-

tory shut down (see Mortensen v. Board of Review, 21

N.J. 242, 121 A.2d 539) or a lockout (see In the Mat-

ter of North River Logging Ca, 15 Wash. 2d 204, 130

P.2d 64), it may be doubted that they are voluntarily

_ unemployed, although there may be an element of vol-

untariness in the underlying controversy. Neverthe-

less, a State may reasonably determine to provide in-

Surance against unemployment that results from _

relatively impersonal, cycli¢al economic forces but. not

from the intentional use-of work ‘stoppages as a

, Weapon in labor-management warfare.

_ In all events, the resolution of these difficult ques- |

‘tions and their bearing on the National Labor Rela-

tions Act need,not be reached here because the Florida .

Commission found that petitioner’s unemployment *

was not caused by the strike or the controversy

that .led to’ the’ strike. The Appeals. Referee

‘rejected : the contention, . advanced by’ respond-

= .

Reet, ns i4

ent employer (R. 25-26), that petitioner’s ‘unemploy- —

‘ment .was caused by the underlyirig labor dispute:

“Granted, there was a dabor dispute in active progress -

at the employer’s. premises when claimant: was sep-

arated from her job'* * *. But appellant’s becoming"

_ unemployed on May 16, 1965, was not“due to this dis-

¢. pute” (R. 39). On the contrary, the referee found . *

that petitioner’s separation: from her job was due. to

. “slow production” and that she was erititled to benefits

up to Juné 17, 1965, because she “did not dispute such

_ separation” until that date (R. 39)."* In short, the:

a ., elreumstance which was deemed to constitute-the-dis-

ac & qualifying’ “labor dispute” was the result rather than

_ the cause of hér unemployment.” :

** While the statute on its face would seem to contemplate

disqualification only where a labor dispute causes unemploy-

‘ment, the referee appears to have applied an irrebutable pre- .

sumption to bring the facts found within the Statutory lan- _

guage, for he stated that “it should be deemed that-any unem-_

ployment . [petitioner] experienced during the period be-

ginning June .17, 1965 .*.* * is due to a labor dispute * * *”

(R. 38), ese |

ee Re ** As we have notéd above (p. 3, n. 3), the Labor - .

° Board recently sustained the unfair labor practice charges

that had been filed on behalf of Nash and a number of

her co-workers. 166 NLRB No. 110 (August 8, 1967). The —

Board held that it was incumbent upon the employer to lay off

of employees hired as strike replacements before laying off rein-

stated strikers and that, had the employer discharged the re- .

placement workers, he would not have had occasion to lay off —

any-of the reinstated strikers. The Board’s decision is, of |

course, irrelevant to the prior decision of the Florida Indus-

trial Commission, which must be evaluated in terms of its own

- findings of fact. .In any event, although the Board, in resolv-

. ing the dispute that caused ‘the strike, found that Nash was

s ‘ .

;

—

“9 r)

We submit that, whatever reasons a State may have

for denying compensation when unemployment results

from a dispute, no reason for disqualification has been ;

suggested—and none can be readily imagined—where

the dispute results from the unemployment. The ar-

-gument presented by the employer (R. 27) that peti-

tioner might enjoy a windfall if she was paid compen-.

sation and was subsequently awarded back pay by the’

Labor Board is wholly without merit since the State is

free to ‘recoup compensation payments made during

any period covered by a back pay award. See National

"Labor Relations Board v. Gullett Gin Co., 340 U.S.

361, 365 n.1. Nor can it be supposed that the State -

has any valid policy of discouraging the assertion of

Act. As this Court said in a different context, “the :

_ policy of the federal Act. is the prevailing policy in [ }

"every state.” Testa v. Katt, 330 U.S. 386, 393. Wes

conclude that the denial of unemployment compenga- |

tion to those who challenge the validity of their dis-

missal from work (here y filing charges with the Na-

tional Labor Relations Board) cannot serve any .le-

gitimate State interest; it can only penalize employees

..- for the exercise of rights Congress determined to

protect. | : | is

improperly laid off, it was not that dispute, but ‘the one that

began with the filing of Nash’s charge with the Board, that

.the Florida Industrial Commission found disqualifying. The

Board’s adjudication of Nash’s charge does not distinguish it, -

‘in any relevant’sense, from the perfectly common situation

of his seniority rights or on some mistaken factual premise,

such as poor health or absentéeism.

CONCLUSION

For the foregoing. réasons, the order-of the court .

below should be reversed, and the-case should be re-.

manded. to it with instructions to set aside the deci-

sion of the Florida Industrial Commission insofar as

it denies unemployment compensation. to petitioner —

for filing a charge with the National L r Relations

Board. |

plas Dioectins . (. :

_ ‘THURGOOD MARSHALL,

Solicitor General.

ROBERT S. RIFKIND,

Assistant to the Solicitor General.

ARNOLD ORDMAN,

General Counsel,

-DomInick L; MANOLI,

Associate General Counsel,

_ Norton J. ComE,

Assistant General Counsel,

MALCOLM D. SCHULTZ, es Sone

Riporney, . .

N ational Labor Relations Board.

6: - ~-

oe . . . ° /

e -

AUGUST 1967.

‘ re a

FY UV. S. GOVERNMENT PRINTING OFFICE; 1967 273686 6152

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.