Amicus Curiae Brief — NLRB v. International Van Lines

IN THE ee

Court of the Anited States

Octoser TERM, 1971

No. 71-895

NATIONAL LABOR RELATIONS BOARD,

1 Petitioner,

INTERNATIONAL VAN LINES

5 eee

On Writ of Cortiorari te the United States Court of Appeals

5 for the Ninth Cireuit

5 BRIEF AMICUS CURIAE

o BEHALF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

MILTON SMITH

General Counsel

O. F. WENZLER

Labor Relations Counsel

Chamber of Commerce of the

United States of America

1615 H Street, N.W.

rest of the Amicus Curiae

Statement of the Case

Sammary of the Argument

A The Commission of Unfair Labor Practices Dur-

ing An Economic Strike Should Not Auto-

matically And Without Further Investigation

Convert The Strike Into An Unfair Labor Prac-

tice Strike

B, The Strike Herein Was Not Activity Protected

By The Act

Conclusion

CITATIONS

Cases

Alba-Waldensian, Inc. v. N.L.R.B., 404 F.2d 1870

(4th Cir. 1968) 11

‘Black Diamond S. S. Corp. v. N. L. R. B., 94 F.2d

875 (2d Cir.), cert. dened, 804 U.S. 579 (1988) 10

Boys Market, Inc. v. Retail Clerks, 398 U.S. 235

(1970) 8, 4, 14

Central Hardware Co. v. N. L. R. B., US. >

80 LRRM 2769 (1972) 8

General Drivers & Helpers Local 662 v. N. L. R. B.,

$02 F.2d 908 (D. C. Cir.), cert. denied, 371 U.S.

826 (1962)

Griffin Pipe Div. of Grin Wheel Co. v. NL. R. B.,

320 F.2d 656 (7th Cir. 1968)

H. X. Porter Co. v. N. L. R. B., 897 U.S. 99 (1970)

lies Cream Drivers v. Borden, Inc., 488 F.2d 41 (ad

Qir. 1970), cert. denied, 401 US. 940 (1971) —

International lectricul, Radio & Machine Workers,

Local 613 v. N. L. R. B., 328 F. 2d 723 (8d Cir.

1964)

11

CITATIONS—Continued

Page

Jeffery-DeWitt Insulator Co. v. N.L.R.B., 91 F.2d

184 (4th Cir.), cert. denied, 302 U.S. 731

(1987) 11

. Kansas Milling Co. v. N. L. R. B., 185 F.2d 413 (10th

Cir. 1950) 10

Laidlaw Corp. v. N. L. R. B., 414 F.2d 99 (7th Cir.

1969), cert. denied, 347 US. 958 (1954) . 9, 12, 15

Local 838, U. A. W. v. N. L. R. B., 300 F.2d 699 (D.C.

Cir. 1962), cert. denied, 382 U.S. 836 (1965) — 11

M. H. Ritewoller v. N. L. R. B., 144 F.2d 482 (1940)

Mastro Plastics Corp. v. N. L. R. B., 350 U.S. 270

(1956) 3, 8, 18, 14

N. L. R. B. v. Burne International Security Services,

Inc., US. , 80 LRRM 2225 (1972) — 4

N. L. R. B. v. Crowley's Milk Co., 208 F.2d 444 (8d

Cir. 1968;

N. L. R. B. v. Dubo Mfg. Corp., 358 F.2d 157 (6th

Cir. 1965)

N. L. R. B. v. Fansteel Metallurgical Corp., 306 U.S.

240 (1989)

N. L. R. B. v. Fleetwood Trailers Co., 389 U.S. 375

(1967) 2, 8, 8, 12

N. L. R. B. v. Flowers Baking Co., 418 F.2d 244 (5th

Cir. 1969) 10

N. L. R. B. v. Ford Radio & Mica Corp., 258 F.2d 457

(2d Cir. 1958) 3

N. L. R. B. v. Fotochrome, Inc., 343 F.2d 681 (2d

Cir.), cert. denied, 882 U.S. 883 (1965)

N. L. R. B. v. Gissell Packing Co., 895 U.S. 575

(1969) 7h

N. L. R. B. v. Great Dane Trailers, Inc., 388 U.S. 26

(1967) 2,8

N. L. R. B. v. Industrial Union of Marine and Ship-

building Workers, 391 U.S. 418 (1968) 7, 17, 18

N. L. R. B. v. Jackson Press Inc., 201 F.2d 541 (7th

Cir. 1958) 10

N. L. R. B. v. James Thompeon E Co., 208 F.2d 743

(2d Cir. 1958) 10,

iii

CITATIONS—Continued

N. L. R. B. v. Johnson Sheet Metal, Inc., 442 F. 2d

7775 1056 (10th Cir. 1971) 10

VM. L. R. B. v. Katz, 369 U.S. 736 (1972) 8

, N. L. R. B. v. Mackay Radio & Telegraph Co., 304

U.S. 333 (1938) 3, 8, 12

VN. L. R. B. v. Pecheur Lozenge Co., 209 F.2d 398

eed (2d Cir. 1953), cert. denied, 347 U.S. 579

: (1954) 10

N. L. R. B. v. Pittsburgh Plate Glass Co.. U.S.

— 80 L.Ed.2d 341 (1971) 4

NL. R. B. v. Reliance Clay Products Co., 245 F.2d

599 (5th Cir. 1957) 10

; N.L.R.B. v. Remington Rand, Inc., 130 F.2d 919

ry (2d Cir. 1942) 10

N.L.R.B. v. Scott & Scott, 245 F.2d 926 (9th Cir.

1957) 11

N. L. R. B. v. Southern Beverage Co., 423 F.2d 720

(5th Cir. 1970) 10

' NLRB. v. Supreme Dyeing & Finishing Corp.,

; 340 F.2d 493 (Ist Cir. 1965) 9

N.L.R.B. v. Thayer Co., 218 F.2d 748 (1st Cir.

1954) 9, 18, 18

N. L. R. B. v. Tom Joyce Floors, Ino. 353 F. 2d 768

(9th Cir. 1958) 11¹

N. L. R. B. v. Trinity Valley Iron & Steel Co., 290

F. 2d 47 (5th Cir. 1961) 10

N. L. R. B. v. Waukesha Lime & Stone Co., 343 F. 2d

504 (7th Cir. 1965) 10

N. L. R. B. v. Wooster Div. of 5 Corp.,

236 F. 2d 898 (6th Cir. 1956), aff’d in part, rev’d

in part and remanded in part on other issues,

856 U.S. 842 (1958) 11

New Orleans Roosevelt, Corp., 132 NLRB 248 — 16

Philanz Oldsmobile, Inc., 137 NLRB 8677 16

Phillip Carey Myg. Co. v. N. L. R. B., 381 F.2d 720

(6th Cir.), cert. denied, 879 U.S. 888 (1964) 1

Radio Officers’ Union v. N. L. R. B., 347 U.S. 17

(1954) 12

iv

CITATIONS—Continued

Retail, Wholesale and Department Store Union v.

N. L. R. B., F. 2d , 80 LRRM 8244 (D.C.

Cir. 1972)

Southwestern Pipe, Inc. v. N. L. R. B., 444 F.2d 840

[ch Cir. 1971)

Minn Dirie Stores, Inc. v. N. L. R. B.. F. 2d

(4th Cir. 1971)

Statutes

National Labor Relations Act, as amended (61 Stat.

186, 78 Stat. 519, 29 U.S.C. 151, et geg.):

Section 7 : ; 7, 17, 18, 19

Section 8 (b) (1) (A)

Section 8(d) (4)

Section 9

Section 9(c)

Section 9(c) (1)

Section 10(c)

Miscellaneous

H.R. Conf. Rep. No. 510, 80th Cong., Ist Sess.

(1947)

Martin, Rights of Economic Strikers to Reinstate-

ment: A Search for Certainty, 1970 Wis.L.Rev.

1062

me ; IN THE

Supreme Court of the United States

Oro TERM, 1971

No. 71-895

NATIONAL LABOR RELATIONS BOARD,

15 Petitioner,

INTERNATIONAL VAN LINES

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA .

AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE *

The Chamber of Commerce of the United States of

America is a federation consisting of a membership of

over 3,700 state and local chambers of commerce and

trade and professional associations, a direct business

membership in excess of 38,000 and an underlying mem-

ership of approximately 5,000,000 business firms and

individuals. It is the largest association of business and

professional organizations in the United States.

3 f N

This brief is filed with the express written consent of counsel

This brief amicus curiae supports the position of the

respondent in urging affirmance of the decision below

holding that the commission of unfair labor practices

during an economic strike does not automatically and

mechanically convert the strike into an unfair labor prac-

tice strike. The amicus believes, with the court below,

that a finding of conversion should result only where

evidence establishes that the commission of such unfair

labor practices did, in fact, alter the strikers’ purpose

and prolong the strike,—a conclusion which need not

follow from the occurrance, after the inception of a

strike, of certain prohibited practices. The amicus further

supports respondent’s request for corrective clarification

of the decision below insofar as it provides tacit judicial

acceptance of petitioner’s efforts unduly to expand the

concept of “protected, concerted activity“.

The interest of the amicus is predicated upon the

significance of this case to- that complex body of law

which has been structured through the accommodation

of the need for reasonable “striker protection” with those

practical operating necessities encompassed within the

concept of “legitimate and substantial business justifica-

tions“. N. L. R. B. v. Fleetwood Trailers Co., 389 U.S. 375

(1967); N. L. R. B. v. Great Dane Trailers, Inc., 388 U.S.

26 (1967). That body of law, and the very balancing

process upon which it is premised, will be undermined

if. this Court rules, as petitioner seeks, that the mere

1 The court below specifically refrained from passing on the

question of whether a strike to force immediate recognition absent

any prior demand therefor is lawful (App. A, p. 24, note 4). In

its Petition For A Writ of Certiorari (pp. 11-12, 18-21), petitioner

treats the legal principles to be derived as equally applicable whether

the strike be considered one to pressure consent to an election

or to force immediate recognition without any prior demand.

(App. D, pps. 89-40). Under such circumstances, and for the

reasons specified by respondent earlier, such effort disproportionately

to expand the concept of “protected, concerted activity” must be dealt

pig Brno pag within * limits (Respondent’s Answer

to

of an unfair labor practice during the course

strike, without evidence or analysis of its effect, if

‘on the strikers, automatically converts the purpose

objective of the strike activity.

The “mechanical rule“ of “automatic conversion” for

which petitioner seeks this Court’s approval would eradi-

cate the finely drawn distinctions between the economic-

occurrence

of a

any,

and

carry with them important practical remedial consequences

and are of substantive import in the accommodation or

balancing process which is the fabric of federal labor

law.“ The determination as to which of these rules ap-

plies in a given case should not therefor depend on mere

assumption which has no necessary logical predicate.

Petitioner’s affirmative assertion of its “mechanical” rule

under the strike circumstances present here “would, far

from promoting the peaceful settlement of labor disputes,

inject a judicially fashioned element of chaos into the

field of labor relations” (N.L.R.B. v. Ford Radio & Mica

Corp., 258 F. 2d 457, 465 (2d Cir. 1958) ).

The importance to the Chamber of a resolution of the

issue presented traces to the continuing need to illuminate

the balance which the National Labor Relations Act effects

between the protection of strikers’ rights and the recogni-

tion of employers’ legitimate needs.

N. L. R. B. v. Fleetwood Trailers Co., supra; N.L.R.B. v. Mackay

Radio & Telegraph Co., 304 U.S. 333 (1988).

Mastro Plastics Corp. v. N. L. R. B., 350 U.S. 270 (1986).

Retail, Wholesale and Department Store Union v. N. L. R. B.,

— F. 2d —, 80 LRRM 8244 (D.C. Cir. 1972).

The Court has affirmed the fact that the Act’s purpose to

N labor stability and industrial peace and order is of equi va-

significance with its protection of strike or other union ac-

Boy’s Market, Inc. v. Retail Clerks, 398 U.S. 235 (1970);

_— Company V. N.L.R.B., —— U.S. ——, 80 LRRM

The es instant effort is similarly motivated.

STATEMENT OF THE CASE

The full import of the strike-conversion rule which

the Board would have this Court adopt can best be ap-

preciated when applied to the facts presented in this case,

The record reveals that neither the respondent-employer

nor, more significantly, the employees whose rights are

involved. were informed or knew the purpose or causes

for the union’s picketing activity when such activity began

at the respondent-employer’s business premises on October

4, 1967. The union, which had never demanded recogni-

tion from the respondent-employer either at the time it

filed its petition for recognition or when it began picket-

ing, gave varying “reasons” for the direction of economic

pressures against this respondent-employer; thus, accord-

ing to the union, the “object” of the picketing was either

to force agreement to a consent election which the union

inaccurately informed respondent’s employees had been

withdrawn by respondent, or to force recognition without

an election, or to “protest” the discharges of employees

employed by other van and storage companies the union

was concurrently attempting to organize, or for other

purposes still undisclosed. Regardless of the multiple

“causes” the union attributed to the commencement of

picketing activities against the respondent-employer, the

strikers’ purpose or motivation in striking is revealed by

For example, H. K. Porter Co. v. N. L. R. B., 897 U.S. 99 (1970);

Boy's Market, Inc. v. Retail Union, 898 U.S. 285 (1970);

N. L. R. B. v. Pittsburgh Plate Glass Co., US. —— 30 L. Ed.

2d 341 (1971); N.L. R. B. v. Burns International Security Services,

Ine., —— US. ——, 80 LRRM 2225 (1972).

5

the following: first, the employees of the respondent-em-

participate in the picketing activity when

id not know it would occur when it did and

what it was about when it started in the

October 4; second, respondent’s employees re-

fused to come to work by crossing the “stranger” picket

because of their confusion with regard to the

of October 5, 1967 notifying employees that

to directed at 7 a.m. on Wednesday,

rmanently replaced.” Had the tele-

cn

15 Ff]

i

117

2 it did, the facts set out

set out in the petitioner's

Fact (Petitioner’s Brief, pps. 3-7)

“Statement of the Case” (Re-

That these facts were deemed by the Board to constitute

an appropriate vehicle for the application of its rule

effecting an automatic conversion of an economic to an

unfair labor practice strike demonstrates the need to

affirm the decision below. For the combination of the

strikers’ total confusion as to the purpose for the strike,

the unions’ multiple and inconsistent subsequent explana-

tions of its objective, the likelihood that different em-

ployees would therefore have different: views as to the

strike’s goal, and the evidence afforded by the nature of

the qualified applications for reinstatement—cumulatively

negative the probability that these strikers changed “the”

object of the strike or that they “prolonged” their activity

as a consequence of unlawful conduct as to which their

reinstatement applications made no express mention.

SUMMARY OF ARGUMENT

1.) The rules relating to the reinstatement rights of

economic strikers were created to achieve different ob-

jectives, to effect a differing balance between employees’

and employers’ needs and to afford a different level of

relief than rules relating to the reinstatement rights of

unfair labor practice strikers. The latter rules are de

signed not merely to protect strikers’ status as “em-

ployees”, but affirmatively to protect their right to protest

and seek relief through self-help against unlawful con-

duct whose impact consciously leads the strikers to pro-

long their strike in specific protest against such conduct.

The Circuit Courts of Appeals, including the court

below, have held that the commission by an employer

of unlawful acts during an economic strike does not con-

spondent’s Brief, pps. 7-8). The facts reflecting the lack of

knowledge by respondent’s employees with respect to the reasons

or timing of the union’s picketing activity on October 4 are

and set out in Pet. Appendix D, pps. 88-42 and Pet

D, pps. 52-60.) f

7

yert the status of economic strikers to those of unfair

labor practice strikers absent proof that the strikers

altered their strike purpose and prolonged their strike

as a direct result of such improper conduct. The Board’s

‘contrary view that unfair labor practices automatically

or necessarily convert the nature of an economic strike,

‘without any need for specific evidence or proof, fails to

‘ ‘preserve the distinctions between these categories of

‘strikers, fails to give effect to the logic of the unfair-

‘Jabor-practice-striker rule, and constitutes a conflict with

the Circuit Courts which requires resolution by this Court

in the interest of a uniform and predictable application

of the labor laws.

2.) A strike whose purpose is to prohibit or impede

any person’s access to the processes of the Board is con-

trary to sound policy and to Congress’ intent in creating

a guaranteed statutory framework for the resolution of

disputes. Those who participate in such a strike do not

engage in activity which is protected by Section 7 of the

National Labor Relations Act. (N.L.R.B. v. Industrial

Union of Marine and Shipbuilding Workers, 391 U.S.

418 (1968)). The strike in this case was designed, ac-

cording to the Board’s findings, to compel the employer’s

consent to an election despite the pendency of representa-

tion proceedings before the Board or to compel immediate

recognition of the union absent an election. The success

of either purpose would force the employer to forego the

rights and protections guaranteed in the statute to a full

hearing (Section 9 (e)) and an election in which to de-

termine the employees’ union preferences (N. L. R. B. v.

Gissell Packing Co., 395 U.S. 575 (1969)).’ Since in

either event the strikers’ object was to coerce the em-

ployer's abandonment of a statutory right to access to

roy processes, the conduct of the strikers was not pro-

ar Section 7 of the Act.

8

ARGUMENT 1

A. The Commission Of Unfair Labor Practices During

An Economic Strike Should Not Automatically And

Without Further Investigation Convert The cle

Into An Unfair Labor Practice Strike.

This Court and the Courts of Appeal, with rare excep-

tions (eg., N. L. R. B. v. Katz, 369 U.S. 786 (1962) ), have

refused to sanction the automatic application of mechani-

cal rules by the petitioner-Board in the complex socio-

- economic area of labor law. Such a refusal is the sub-

stance of the. rejection by the court below of the Board’s

finding, without analysis or evidence, that the “natural

effect” of “discharge” of the economic strikers converted

the economic walkout into an unfair labor practice strike

(Appendix D, p. 41). The court below properly found

that absence of any evidence in support of that supposed

“necessary” effect precluded enforcement of such an easy

finding of “conversion” e

Note 5).

The insistence of the court below upon proof of con-

version of the strike activity is the only proper approach

to. preservation of the substantial distinctions flowing

from the economic-striker-reinstatement and unfair-labor-

practice striker reinstatement rules.“ g

Each rule, with the panoply of rights and obligations

attendant to it contains strong protections for the right to

strike balanced against the employers need to operate

their business enterprises.’ Since each rule represents a

N. L. R. B. Fleetwood Trailers Co., 889 US. 875 (1967);

N. L. R. B. v. Great Dane Treilers, Ine., 888 U.S 26 (1967) ; Mastro

Plastics Corp. v. N. L. R. B., 850 U.S. 270 (1956) ; N. L. R. B. v. Mackay

Radio & Telegraph Co., 304 US. 888 (1988).

*The operation of these rules involves variables which affect

the result in each case and seek to conform the operations of the

rules to the equity of the situations they govern. These variables in-

clude, for example, for example, the nature of the strikers’ conduct

9

‘remedial need, to apply one where the other is

te adversely affects the statutory scheme labor-

iously fashioned by Congress and the courts.

J) Courts Have Not Approved The Board’s Theory

f “Automatic Conversion” Of Strike Objectives.

The very nature of the economic-striker and unfair-

‘ labor-practice striker rules, and the substantial difference

in the degree of protection which each affords has con-

sistently led courts to an avoidance of mechanical rules

in determining which rule applies in a given case.

With the exception of those cases where the unfair

labor practices committed are so “flagrant” that the only

rational inference is that strike activity must have been

prolonged as a result, (N.L.R.B. v. Supreme Dyeing &

Finishing Corp., 340 F. 2d 498 (1965)), all the Cir

cuits require analysis of the initial “cause” or “causes”

ests for reinstatement (N.L.R.B. v. Fansteel Metal-

806 U.S. 240 (1989) ; the permanency of replacement

and Department Store Union v. N.L.R.B., ——

2d LRRM 3244 (DC Cir. 1972), Laidlaw Corp. v.

„414 F. 2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920

parties’ competing needs. Laidlaw,

problems to an employer’s efficient

tion of his business in seekin

10

- strike * each of those cases involved specific evidence of

anti-union motivation underlying the unfair practices in-

volved. Where, however, the unfair practices are not of

such “flagrant” and “ongoing” character, the Second Cir

cuit requires analysis and evidentiary proof of causal

relationship between the employer unfair conduct and

strike prolongation.* The same distinction between

“flagrant, ongoing” unfair practices which do nof re

quire specific evidence of prolongation and those case

where strike conversion must be proven by specific eyi-

dence of causal relationship is reflected in the decisions

of the Third Circuit;* the Fifth Circuit, the Seventh

Circuit,“ and the Tenth Circuit.* The District of Co.

lumbia Circuit regularly demands analysis of the strikes

1° N.L.R.B. v. Pecheur Lozenge Co., 209 F. 2d 898, 404 (1958),

cert. denied, 847 U.S. 958 (1954); N. L. R. B. v. Remington Rand,

Inc., 130 F. 2d 919, 928 (1942); Black Diamond SS. Corp. v.

NL. R. B., 94 F. 2d 875, 879, cert. denied, 804 U.S. 579 (1988).

NLRB. v. James Thompson & Co., 208 F. 2d 748, 749 (1958).

12 International Electrical, Radio & Machine Workers, Local 618,

v. NLRB., 828 F. 2d 728, 725-726 (1964) requiring specific

evidence of prolongation; N.L.R.B. v. Crowley’s Milk Co., 208 F. 2d

444, 445 (1958).

* Southwestern Pipe, Inc. v. N.L.R.B., 444 F. 2d 340 (1971),

becavse of absence of proof of causal con-

599

Griffin Wheel Co. v. N.L.R.B, 320 F. 2%

656, 659 (1968), N.L.R.B. v. Jackson Press Inc., 201 F. 2d 54l,

546 (1958) and M. H. Ritewoller v. N.L. R. B., 114 F. 2d 482, 488

(1940), all requiring specific evidence and findings of “prolonga-

ek NLRB. v. Waukesha Lime & Stone Co., 343 F. 2d 504

1965).

“Griffin Pipe Div. of

* Kansas Milling Co. v..N.L.R.B., 185 F. 2d 418, 420 (1950)

requiring proof of causal connection; N.L.R.B. v. Johnson Sheet

Metal, Inc., 442 F. 2d 1056 (1971).

2 act Ne

11

initial causes and specific evidence of prolongation in

“conversion” cases.“ The Sixth Circuit, although recogniz-

ing the proof of “prolongation” requirement, holds that

once employer unfair practices are proven, the burden

of showing absence of causal connection falls upon the

employer.” Similarly, the Fourth Circuit demands proof

of causal connection between the unfair practice and the

strike’s prolongation, but imposes the duty upon the

‘ Board’s General Counsel to carry the burden of produc-

ing evidence showing prolongation before any finding of

“conversion” will be upheld.* The court below, although

on occasion finding conversion absent proof of causal

connection and prolongation,” has acknowledged that the

other Circuits require a causal relationship between em-

ployer unfair labor practices and the prolongation of a

strike,“ and imposed that requirement in the case at

bar (App. A, pp. 27 and 28 and Note 5).

Thus, absent at least some probative evidence to de-

termine that employees engaged in an economic strike did

in fact alter and prolong their activity in view of the

commission of some unlawful acts during a strike, the

Circuit Courts have not permitted speculation to deter-

mine the parties’ rights and duties.

1 Local 888, U.A.W. v. N.L.R.B., 300 F. 2d 699 (1962), cert.

denied, 382 U.S. 886 (1965); General Drivers & Helpers Local

662 v. N. L. R. B., 302 F. 2d 908, 911, cert. denied, 371 U.S. 826

(1962).

u Phillip Carey Mfg. Co. v. N.L. R. B., 381 F. 2d 720, 728-729

cert, denied, 879 U.S. 888 (1964); N. L. R. B. v. Wooster Div. of

Borg-Warner Corp., 236 F. 2d 898, 907 (1956), aff’d. in part, re-

teen) in part and remanded in part on other issues, 856 U.S. 342

Mun. Dirie Stores, Inc. v. N.L.R.B., —— F. 24 —— (1971) ;

Alba-Waldensian, Inc. v. N. L. R. B., 404 F. 2d 1870, 1871 (1968) ;

defery-DeWitt Insulator Co. v. N.L. R. B., 91 F. 2d 184, 139, cert.

denied, 302 U.S. 731 (1987).

— v. Tom Joyce Floors, Inc., 858 F. 2d 768, 772 (9th

ia? NLRB. v. Scott & Scott, 245 F. 2d 926, 929 (9th Cir. 1957).

That the Board nonetheless persists in asserting as

it does here, that conversion of the strike is automatic

2) The Courts’ Approach To The Analysis Of Strike.

Conversion Is Correct.

The necessity for proof of strike “causation” and “moe

tivation”, both from the standpoint of the strike’s initis-

potential for back pay and the reasoning behind shelter-

n An economic striker may be permanently replaced at any time

prior to his unconditional application for reinstatement (NLRB.

v. Mackay Radio & Tel. Co., 304 U.S. 888, 845-846 (1938) ) although

retaining certain as yet not fully defined (See, eg., Martin,

Rights of Economic Strikers to Reinstatement: A Search for

Certainty, 1970 Wis. L. Rev. 1062) preferential rehire rights after

permanent replacement (N.L.R.B. v. Fleetwood Trailer Co., 389 US.

875, 880-881 (1967); Laidlaw Corp. v. NL.RB., 414 F. 2d 99

( Ith Cir. 1969), cert. denied, 897 US. 920 (1970)). By com

parison, an unfair labor practice striker is entitled to immediate

upon unconditional application therefor and cannot

permanently replaced either before or after such application

(N.L.RB. v. Fotochrome, Inc., 848 F. 2d 681 (2d Cir.), cert. denied,

882 U.S. 888 (1965); N.L.R.B. v. Dubo Mfg. Corp., 358 F. 2d 157

(6th Cir. 1965). .

* Coincident with the greater reinstatement rights of unfair

supra, the unfair

Te

rests upon a need to encourage activities de-

ged to “protest” and “remedy” the commission of un-

while denying such shelter to the same activity

fair labor practices. ‘Similarly, the release of unfair

‘of economic strikers (N.L.R.B. v. Thayer, supra.) pur-

“practice strikers from the contractual restraints

ae

re

:

1

8

1

14

applicable to economic strikers and the exemption of

unfair labor practice strikers from the provision of

Section 8 (d) (4) of the Act involving strikers’ loss of

their status as “employees”.—which provision remains

applicable to economic strikers,—are premised upon an

alleged necessity to effectuate remedial self-help by

strikers who feel their rights jeopardized by specific

unlawful conduct.”

However, the need for effective means to protest or

remedy another’s unlawful acts must presuppose both

knowledge of such acts and a concern as to their impact

sufficient to motivate a specific exercise of protest. Em-

ployees not so motivated, whether through lack of in-

formation, lack of concern because the unlawful acts are

in their view minor or otherwise subject to correction in

arbitration or NLRB proceedings, because of their con-

suming concern for their economic objectives, or other-

wise, do not fall within the class of persons for whom the

protections of the unfair-labor-practice-striker rule were

created. The requirement of this rule that the alleged

unfair practices “prolong” the strike emphasizes the re-

quirement that for its operation those practices must

constitute a specific, serious and independent focus of the

strikers’ protest.

2 For example, the operation of contractual “no-strike” clauses.

Mastro Plastics Corp. v. N. L. R. B., supra. The effect of this Court’s

decision in this context of Boy’s Markets, Inc. v. Retail Clerks Union,

898 U.S. 235 (1970) is perhaps open to doubt. This Court was not

presented with and did not decide the question whether an injunc-

tion would lie against an unfair labor practice strike during the

term of a labor agreement containing a general“ no-strike clause

and provisions for arbitration. Subsequent cases appear to have

applied Boys Markets to economic strike situations only.” Eg.

Ice Cream Drivers v. Borden, Inc., 483 F. 2d 41 (2d Cir. 1970),

cert. denied, 401 U.S. 940 (1971).

28 The concept of encouraging self-help remedies in the contest

of a statutory scheme which itself affords remedies for unfair labor

practices warrants a re-examination of the continuing validity

of the unfair-labor-practice-striker rule.

15

It should be emphasized that it is entirely reasonable

that the employer’s commission of unlawful acts, even

when known, may be deemed by the strikers to be minor

or @ predictable outgrowth of the strike, and not en-

the concern leading to a prolongation or altera-

: tion of that strike. To an increasingly sophisticated labor

movement the availability of arbitration and the NLRB

as forums for the resolution of alleged unfair labor prac-

tices cannot be discounted; their availability may well

induce strikers to rely on such formal procedures, es-

pecially since resulting decisions have prospective value

> ame which would be lacking in a particular

capitulation on the same issue. And the

imputation to economic strikers of knowledge of the

commission of unfair labor practices following the incep-

tion of the strike may well be unwarranted. For example,

an employer’s refusal to provide the union with certain

requested information unrelated to a then-current eco-

nomic strike may constitute an unfair labor practice,

but it is not likely that such a statutory violation would

become known to employees then striking for economic

benefits. Similarly, an employer’s unilateral adoption of

a new work rule enforced against unit employees work-

ing in the plant may not reliably be expected to come to

the attention of other unit employees then engaged in an

economic strike. In neither case is the nature of the

violative conduct likely to result in a change in the focus

of ane or to prolong it.“

35 question of strikers’ knowledge of the occurrence of un-

awit is presented in an aggravated form in cases where

employer’s unfair labor practice is a result of a

16

It follows, therefore, that the reinstatement and back.

not be governed by the Board’s view that the c-

of any unfair labor practices by the employer

the strike automatically converts such striker

labor practice strikers on the asswmption that

practices necessarily changed the purpose of and

prolonged the strike. Rather, as the rationale for th

B. The Strike Herein Was Not Activity Protected By

The Act.

The goal of the union’s strike activity in this case was

out prior demand and without an election, or both. It is

submitted that a union’s strike to achieve either ob-

jective should be considered unprotected activity under

the Act.“ This is an issue to which the Court has not

yet specifically addressed itself.

Section 9 (e) (1) of the Act provides that:

“Whenever a petition shall have been filed. . . the

Board shall investigate such petition and if it has

reasonable cause to believe that a question of rep-

resentation affecting commerce exists shall provide

* The Board’s view is, and has been, to the contrary. Phileas

Oldemobile, Inc., 187 NLRB 867; New Orleans Roosevelt Corp., 182

NLRB 248. However, apart from the absence of judicial support for

the Board’s position, subsequent decisions of this Court would sem

to compel a contrary view, as noted infra.

2333 8888

1

35

15 a 8.4 E

111

11

8

(196

Co., 395 U.S.

recognized by

(b) (1

objective do Lee

a

vely protected by Section 7 of

Workers, 391 1 8 7 418

Gat hid to be violative of Section 8

i

d

5

8

1

5

2

5

At a minimum, it

strike for such an

prohibiting or

Board

FY to

t to

wi

rt to dep

in

18

575 (1969). It was held there that in the absence 1

unfair labor practices by the employer which would

prevent the holding of a fair election, an employer was

entitled, as of right, to access to the Board’s representa-

tion machinery in order to determine the union prefer.

ences of his employees.* The rationale of Shipbuilding

Workers also applies to such an effort to force employers

to forego their statutory rights and access to the Board

And, similarly, the activities of the strikers should not be

deemed to be protected by Section 7.

In N.L.R.B. v. Thayer, supra, the First Circuit es-

tablished certain accepted ground rules for the analysis

of these matters. If an economic strike is not within the

protection conferred by Section 7, the employer may

terminate the employment of the strikers without violat-

ing the Act; that is, such terminations would not restrain

or coerce employees in the exercise of their Section 7

rights. Since the Board’s authority to order reinstate

ment derives from Section 10(c) and is dependent upon

the commission of an unfair labor practice, therefore

the reinstatement of an economic striker cannot be or-

dered by the Board unless the failure to reinstate would

constitute an unfair labor practice; if the economic strike

is not protected by Section 7, therefore, the discharge or

failure to reinstate any of the strikers would not be

remedied by the Board.

In the instant case, even assuming, arguendo, that the

economic strikers had been discharged by the employer

and had not been merely permanently replaced, since 3

strike to obtain recognition or to compel agreement to a

consent election should not be viewed as protected by |

Section 7 (Shipbuilding Workers, supra), such “dis-

charges” would not be prohibited by the Act.

20 In the instant ease the alleged unfair labor practices of the

employer occurred after the commencement of the strike in which

the union sought to compel recognition or a consent election.

19

CONCLUSION

ns stated herein, together with those

ied ty the respondent, it is urged that the decision

r

ts for conversion of an economic strike to an un-

fair labor practice strike, but that the Court should also

, declare that “economic” strikes to compel recognition or

to force agreements to consent election, are not protected

activities under Section 7 of the Act.

Respectfully submitted,

MILTON SMITH

General Counsel

O. F. WENZLER :

Labor Relations Counsel

Chamber of Commerce of the

- United States of America

1615 H Street, N.W.

Washington, D.C.

925 South Homan Avenue

Chicago, Illinois 60607

Attorneys for the Amicus Curiae