Brief for the Respondents in Opposition — Subin v. National Labor Relations Board

VPI ARATE ew

TELS AG ABE eo bog OF RS aoe Me LTD aR Le UAT ate Se ate

INDEX

Page

Opinions below - - - - 1

ee 1

Questions presented _ - 2

Statute involved _ 2

Statement___ 3

Argument_-- - 9

Conclusion _ - - 14

CITATIONS

Cases:

Agwilines, Inc. v. National Labor Relations Board et al., 87

x Ge Bs acca re Re ee ues ea 10

Burlington Dyeing & Finishing Co. v. National Labor

Relations Board, 104 F. (2d) 736 10

Consolidated Edison Co. v. National Labor Relations Board,

95 F. (2d) 390, affirmed, 305 U. 8. 197 10

Hartsell Mills Corp. v. National Labor Relations Board,

11 F. (2d) 291- , 11

M. H. Ritzwoller Co. v. National Labor Relations Board

(C. C. A. 7th), July 16, 1940 13

Montgomery Ward & Co. v. National Labor Relations Board,

107 F. (2d) 555_- és : , 10

Mooresville Cotton Mills v. National Labor Relations Board,

110 F. (2d) 179_- 11

National Labor Relations Board vy. Bradford Dyeing Ass'n,

No. 588, October Term, 1939 9

National’ Labor Relations Board vy. Botany Worsted Mills,

106 F. (2d) 263_- 11

National Labor Relations Board v. Carlisle Lumber Co., 99

F. (2d) 533, certiorari denied, 306 U.S. 646 11

National Labor Relations Board v. J. Greenebaum Tanning

Co., 110 F. (2d) 984, pending on petition for certiorari,

J. Greenebaum Tanning Co. v. National Labor Relations

Board, No. 152, present Term_- 13

National Labor Relations Board v. Kentucky Pirebrick Co.,

99 F. (2d) 89-- 10

National Labor Relations Board vy. Leviton Mfg. Co., 111 F.

(2d) 619_--_- 12,13

National Labor Relations Board vy. Lightner Publishing

Corp. (C. C. A. 7th), July 1, 1940 13

National Labor Relations Board v. National Casket Co., 107

F. (2d) 992 13

National Labor Relations Board v. Remington Rand, Inc.,

94 F. (2d) 862, certiorari denied, 304 U.S. 576 10

(I)

254483—40

Il

Cases—Continued.

National Labor Relations Board v. Tovrea Packing Co., 111

FB. (9d) O86... 2-2 + - 5-25 2 2 on enn“

National Labor Relations Board v. Waterman S. S. Co., 309

8S oe en won wen oben = +s sn enn <=

New York Handkerchief M fg. Co. v. National Labor Relations

Board, decided July 11, 1940------------------------

North Whittier Heights Citrus Association v. National Labor

Relations Board, 109 F. (2d) 76, certiorari denied, No.

853, October Term, 1 RE ele Sie Renae ee se eet es

Phelps Dodge Corp. v- National Labor Relations Board

(C. C. A. 2), July 11, 19... ~~ ....<-s.5--+---------

Republic Steel Corp. v- National Labor Relations Board,

No. 14, present Term. -------------------------"--~"

Southern Colorado Power Co. Vv. National Labor Relations

Board, 111 F. (2d) 539------------------------~---""

Stewart Die Casting Corp. v. National Labor Relations

Board (C. C. A. 7th), July 3, RA i a ane

Statute:

National Labor Relations Act (Act of July 5, 1935, ¢. 372,

49 Stat. 449, 29 U. S. C. Supp. V, Sec. 151, et seq.) - ---

10

13

nthe Supreme Court of the Anited States

OcroBER TERM, 1940

No. 280

Davin SusiIn AND BENJAMIN SvuBIN, TRADING AS

ArcaptA Hostery COMPANY, PETITIONERS

v.

NATIONAL LABOR RELATIONS Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE THIRD

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court below (R. 991-1001) is

reported in 112 F. (2d) 326. The findings of fact,

conclusions of law, and order of the National La-

bor Relations Board (R. 954-981) are reported in

12.N. L. R. B. 467.

JURISDICTION

The decree of the court below (R. 1001-1002)

was entered on March 30, 1940. A petition for re-

hearing (R. 1003-1026) was denied May 7, 1940

(1)

2

(R. 1039). The petition for a writ of certiorari was

filed on July 25, 1940. The jurisdiction of this

Court is invoked under Section 240 (a) of the Ju-

dicial Code, as amended by the Act of February 13,

1925, and under Section 10 (e) and (f) of the Na-

tional Labor Relations Act.

QUESTIONS PRESENTED

1. Whether there was substantial evidence to

support the Board’s findings that petitioners dom-

inated, interfered with, and supported a labor or-

ganization of their employees in violation of See-

tion 8 (1) and (2) of the Act and discriminatorily

discharged certain of their employees in violation

of Sections 8 (1) and (3) of the Act.

2. Whether, in the circumstances of this case, it

was permissable for the Board to require petition-

ers to offer reinstatement to Richard Craner, one

of the employees found to have been discrimina-

torily discharged.

3. A further question urged by petitioners, but

which we think is not properly presented in this

case, is whether the Board may require that an em-

ployer pay over to governmental relief agencies

sums equal to the amounts disbursed by those agen-

cies for the employment on work relief projects of

employees discharged by the employer in violation

of the Act.

STATUTE INVOLVED

The pertinent provisions of the National Labor

Relations Act (Act of July 5, 1935, ¢. 372, 49 Stat.

3

449, 29 U.S. C., Supp. V, See. 151, et seq.) are set

forth in the Appendix to the Petition (pp. 39-41).

STATEMENT

Upon the usual proceedings* the Board issued

its findings of fact, conclusions of law and order

(R. 954-981). The facts, as found by the Board

and as shown by the evidence, may be summarized

as follows: *

Beginning in July 1937, a substantial number of

petitioner’s employees joined the American Feder-

ation of Hosiery Workers, Branch No. 67, a labor

organization herein called the Union (R. 957; R.

95, 125, 127). Petitioners at first refused to meet

with the Union’s representatives, but the local

police chief finally succeeded in arranging a meet-

ing (R. 958; R. 56-58, 96, 114). At this meeting,

held August 9, 1937, petitioners would not read or

discuss a proposed contract which the Union sub-

mitted; instead they produced a notice announcing

liquidation of their business and advising their em-

ployees to seek employment elsewhere (R. 958; R.

1These, pursuant to Section 10 of the National Labor

Relations Act, were: charge and amended charge (R. 1-4),

complaint (R. 5-9), answer (R. 10-16), hearing before a

trial examiner at which the Shop Committee, a labor organi-

zation alleged in the complaint to be company-dominated,

intervened (R. 16-17, 23), intermediate report of the trial

examiner (R. 891-924), exceptions thereto by petitioners and

the Shop Committee (R. 925-953), oral argument ( R. 956),

and the filing of briefs before the Board (¢bid.).

2In the following statement, the references preceding the

semicolons are to the Board’s findings and the succeeding

references are to the supporting evidence.

does urls ie

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1

55, 98, 871). At the Union’s urging petitioners

agreed to withhold posting this notice, but warned

that they would post it if the Union caused

“trouble” (R. 958; R. 56, 98-99).

There were sporadic meetings between repre-

sentatives of petitioners and of the Union during

the following months (R. 958-959; R. 115-117).

About December 1, 1937, petitioners received from

the Union, for posting in the plant, a notice re-

questing union members to handle grievances

through the Union shop committee (R. 959; R.

103-105, 283, 287-288, 872). A few days later

Plant Superintendent Weisbecker accosted Hol-

sopple, the Union representative who had delivered

the notice to petitioners, displayed the liquidation

notice which petitioners had shown the Union rep-

resentatives in August, and inquired whether the

liquidation notice ‘“‘would not be a better notice to

hang up than the one you put in the office?”’ (R.

959; R. 290, 700). On the same day the liquida-

tion notice was posted on the plant bulletin board

(R. 959; R. 207, 297). Petitioners did not go out

of business, and the Board found that they had no

intention of doing so, and that the threats of liqui-

dation were intended to frighten the employees

into abandoning the Union (R. 959-960).

During the preceding summer, when the Union

first became active in the plant, an attempt to form

an unaffiliated labor organization had failed for

lack of employee support (R. 960-961; R. 159-

176). Thereafter Minueci, an employee promi-

5

nent in this effort, aud some other employees, con-

sulted with petitioners concerning the desirability

of establishing a so-called ‘‘Nunn-Bush Plan’’ of

representation, of which one of the employees had

read in the newspaper ‘‘Social Justice”’; petition-

ers heartily endorsed this project and encouraged

its advocates (R. 961-962; R. 184-191, 194-195, 197,

201, 203, 666-667).

Shortly after the posting of the liquidation

notice on December 11, David Subin told Minucei

that the business would be liquidated ‘unless

some plan were arranged whereby he could op-

erate in a nice, peaceful way” (R. 963; R. 73-

74). Minucci, in collaboration with some local

businessmen, then prepared a letter for the em-

ployees to sign (R. 962-963 ; 207-211). The letter

stated that the signers were ‘‘sincerely loyal’’ to

petitioners and were attempting ‘‘to relieve condi-

tions which we assume have brought about” the

liquidation notice and that the signers were not

in accord with ‘‘any movement to bring about,

through outside action any labor trouble or disor-

ders which would tend to disrupt the present or

subsequent policy at the Plant’? (R. 962-963;

879). The letter also requested that petitioners

negotiate concerning the proposed liquidation, with

the signers ‘‘either in whole or through such in-

dividuals as you choose to designate”’ (R. 962-963 ;

879). The letter was circulated in the plant by

Minucci and some other employees during working

hours, and was signed by more than 200 employees

(R. 963 ; 211, 226). Minueci and another employee

in sa

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6

presented the signed letter to David Subin and

thereafter collaborated with Subin in drafting the

Shop Committee plan, a plan of employee organi-

zation based on the Nunn-Bush model (R. 963; R.

70, 211-212, 242-246). The resultant draft was

submitted to petitioners’ attorney for revision

(R. 963; R. 212-213, 245, 591).

On December 23, Minucci assembled about 395 se-

lected employees in the plant, calling some of them

from their work; David Subin read the Shop Com-

mittee plan to the gathering and stated that he

would recognize the Committee provided therein

(R. 963-964; R. 213-215, 220, 223, 230, 592). Mi-

nucci presented the names of the five men, includ-

ing himself, whom he had selected to serve as mem-

bers of the Shop Committee, and called for objec-

tions or additions; none were made (R. 964; 218).

On the same day, with petitioners’ permission, a

notice was posted in the plant announcing an em-

ployees’ meeting to be held on the following day at

a local hotel (R. 963; R. 216-217, 228-229). This

meeting was attended by approximately 139 em-

ployees, who voted to adopt the Shop Committee

plan (R. 964; R. 218, 41-42, 857). Under the plan

the five Committeemen were constituted the bar-

gaining agency for all the employees (ibid.).

The Board concluded that the Shop Committee

plan thus established had been foisted upon the

employees by petitioners ; that petitioners had par-

ticipated_in its or ganization “meetings and in the

formulation of its structure; that the employees

7

had not freely accepted the Shop Committee plan

but had submitted to it to avoid liquidation of peti-

tioners’ business and to obtain continued employ-

ment; and that petitioners had dominated, inter-

fered with, and supported the Shop Committee in

violation of Section 8 (1) and (2) of the Act

o. ae v8) a A Sat ont RN

The Board further found that petitioners dis-

criminatorily discharged ten active members of the

Union, including the chairman and vice chairman

of the plant committee (R. 965-976, 978-979).

Four of these were discharged on December 31,

allegedly for reporting late on that day to clean

their machines, a yearly task performed without

pay (R. 965-967; R. 298-300, 340, 391, 425-426,

635, 706-707, 889; 282-283, 336, 378, 384-385, 420-

421, 664). There was no specific hour for report-

ing for this purpose (R. 966; R. 296-297, 325, 327,

339, 352-353, 366, 385-387, 423, 707-708) ; the Su-

perintendent knew that the four employees arrived

at 12:30 p. m. because they had been attending a

Union meeting (R. 966-967; R. 711-712), and his

statement at the time that he intended to close the

plant within an hour, so that it was too late then

for them to clean their machines, was false (R. 967;

R. 300, 678, 682). Two other employees, both

active members and one the wife of the Union’s

committee chairman (R. 969; R. 444-449, 467468,

472, 662), were discharged on January 7, assertedly

for lack of work (R. 969; R. 671, 868) ; nevertheless

other employees of less seniority were retained at

8

the same work (R. 969-970; R. 443, 445, 466-467,

671, 868). A seventh employee, Jackson, vice

chairman of the Union committee (R. 972; R. 517-

518, 664) was laid off “until further notice’ but

was never recalled, although other employees of

lesser seniority doing the same work were retained,

and although two other employees were promoted

to that kind of work subsequent to Jackson’s lay-

off (R. 972-973; R. 524-525, 866). Farrell, too,

was laid off and never recalled, although he applied

and although two positions at his former work were

filled by promotion (R. 973-974; R. 532, 534, 539,

543-544, 658, 662-663, 866-868). Beluch also was

discharged, although he outranked in seniority all

other employees performing like tasks, and al-

though positions similar to his were thereafter

filled by promotion (R. 975-976; R. 563-564, 567,

574, 576, 656, 866-868). Similarly, Klebes was laid

off and was never recalled, although three posi-

tions similar to his were filled by promotion

(R. 974-975; R. 550, 553-554, 655-656, 866-868).

Upon these findings, the Board ordered peti-

tioners to cease and desist from the unfair labor

practices found ; to withdraw recognition from and

disestablish the Shop Committee; to offer rein-

statement with back pay to the ten employees dis-

criminatorily discharged; to pay over to govern-

mental relief agencies sums equal to the amounts

disbursed by those agencies for the employment of

the ten employees on work relief projects; and to

post appropriate notices (R. 979-981).

9

Thereafter, petitioners and the Shop Committee

filed separate petitions in the court below to review

and set aside the Board’s order (R. 982-983, 987-

990). The Board answered, requesting enforce-

ment of its order against petitioners (R. 983-987).

On March 12, 1940, the Court handed down its

opinion (R. 991-1001), enforcing the Board's

order except as to reinstatement and back pay for

one employee and as to back pay for one other

employee.’ A decree was entered accordingly on

March 30, 1940 (R. 1001-1002). A petition for re-

hearing filed by petitioners (R. 1003-1026) was

denied on May 7, 1940 (R. 1039).

ARGUMENT

1. Petitioners’ contention (Pet. 18-32, 34-35)

that the Board’s findings of unfair labor practices

are not supported by substantial evidence presents

no question of general importance. Compare Na-

tional Labor Relations Board v. Waterman S. S.

Co., 309 U. S. 206, 208; National Labor Relations

Board vy. Bradford Dyeing Ass’n, No, 588, last

Term, decided May 20, 1940. Further, the evi-

dence summarized in the Statement (supra, pp.

3-8) affords full support for the challenged find-

’The court found that Klebes was discharged because of

inefficiency and not because of his union activities (R. 999),

and held that Mrs. Holsopple should not be awarded back

pay because “her time following the lay-off was largely

occupied by family duties as a matter of her own choice”

(R. 997).

Bene

10

ings. Petitioners also contend (Pet. 21-28, 30-

31) that in holding that the Board’s findings have

the requisite support the decision below is in con-

flict with other decisions in other circuits ; however,

each of those cases turned upon its own particular

facts.

* Petitioners contend (Pet. 84-35) that the court below

erred in taking into account the seniority status of five of the

employees (R. 997-1000) in approving the Board’s findings

that the purported layoffs of these employees were in fact

discharges because of their union activities. Petitioners as-

sert that there is no evidence that seniority rights were pro-

vided in the “contract of employment” and that “courts are

not permitted to read terms into a contract of employment”

(Pet. 35). The court below, of course, did nothing of the

kind: petitioners conceded that they follow seniority in re-

calling laid off employees (R. 14) and both the Board and

the court considered the failure to observe seniority in regard

to these five employees as evidence that they were in fact dis-

charged, not laid off, and that the discharges were discrimina-

tory. The relevance of noncontractual seniority rights in sit-

uations of this kind has been repeatedly recognized by the

courts. Southern Colorado Power Co. v. National Labor Re-

lations Board, 111 F. (2d) 589, 544 (C. C. A. 10); Burling-

ton Dyeing & Finishing Co. v. National Labor Relations

Board, 104 F. (2d) 736, 739 (C. C. A. 4). Compare Consoli-

dated Edison Co. v. National Labor Relations Board, 95 ¥.

(2d) 390, 396 (C. C. A. 2), modified and affirmed, 305 U. S.

197; New York Handkerchief Mfg. Co. v. National Labor Re-

lations Board, decided July 11, 1940 (C. C. A. 7): Agwilines,

Inc. v. National Labor Relations Board et al., 87 F. (2d)

146, 154 (C. C. A. 5); National Labor Relations Board v.

Kentucky Firebrick Co., 99 F. (2d) 89, 93 (C. C. A. 6);

National Labor Relations Board vy. Remington Rand, Inc.,

$4 F. (2d) 862, 871 (C. C. A. 2), certiorari denied, 304 U. S.

576: Montgomery Ward & Co, v. National Labor Relations

Board, 107 F. (2d) 555, 561 (C. C. A. 7).

ll

2. The claim (Pet. 32-34) that the order rein-

stating Craner is invalid because he obtained other

“regular and substantially equivalent employ-

ment’? subsequent to his discharge by petitioners,

is plainly without merit. The subsequent employ-

ment yielded a substantially smaller wage and was

at a considerable distance from Craner’s home (R.

970; 482-483) ; the decisions are uniform that such

considerations adequately support a determination

by the Board that the new employment is not

equivalent to the old. Mooresville Cotton Mills v.

National Labor Relations Board, 110 F. (2d) 179,

97 F. (2d) 959 (C. C. A. 4); National Labor Rela-

tions Board v. Carlisle Lumber Co., 99 F. (2d) 583

(C. C. A. 9), certiorari denied, 306 U. S. 646;

National Labor Relations Board vy. Botany Wor-

sted Mills, 106 F. (2d) 263 (C. C. A. 3); Hartsell

Mills Corp. v. National Labor Relations Board,

111 F. (2d) 291 (C. C. A. 4); Phelps Dodge Corp.

v. National Labor Relations Board, decided July

11, 1940 (C. C. A. 2). Petitioners’ contention (Pet.

33) that any new employment “‘permanent in char-

acter’? must be held to be “‘substartially equiva-

lent” to the former position, is supported by no

authority and is contrary to the cases cited above.

3. Finally, petitioners assert (Pet. 35-37) that

the decree below, insofar as it enforces the pro-

vision (R. 981) of the Board’s order which requires

petitioners to pay over to governmental relief agen-

cies sums equal to the amounts disbursed by those

he a eae RE:

a EO PA, Ne NS gE

12

agencies for the employment on work relief proj-

ects of the employees discriminatorily discharged

by petitioners, is in conflict with National Labor

Relations Board v. Leviton Mfg. Co., 111 F. (2d)

619 (C. C. A. 2), and National Labor Relations

Board v. Tovrea Packing Co., 111 F. (2d) 626

(C. C. A. 9). In the cited cases similar work relief

agency provisions were disapproved and denied

enforcement, and in Republic Steel Corp. v. Na-

tional Labor Relations Board, No. 14, this Term,

this Court granted certiorari, limited to the work

relief agency question. But in the present case peti-

tioners raised no question in the court below con-

cerning the “‘work relief’’ provision ; that provision

was not specifically challenged either in the petition

for review (R. 982-983) or in petitioners’ brief.’

The court below made no mention of the provision,

even in its summary of the Board’s order (R. 992),

and the point was not raised in the petition for

rehearing (R. 1007-1025). Under these circum-

stances, the decision below cannot be taken as an

> Petitioners’ brief below attacked the Board’s findings and

order as not supported by substantial evidence, and asserted

that the disestablishment, reinstatement, and back pay, and

cease and desist portions of the order constituted an abuse

of discretion. It made no mention of the work relief pro-

vision. Brief for petitioners, No. 7092, October Term, 1938,

Circuit Court of Appeals for the Third Circuit.

15

adjudication upon the validity of the ‘‘work relief %

provision, and is not in conflict with the Leviton

and Tovrea cases.

6 Prior to their decisions in the Leviton and Tovrea cases,

both the Second and the Ninth Circuits enforced the work-

relief provision in cases where its validity was not chal-

lenged. National Labor Relations Board v. National Casket

Co. 107 F. (2d) 992 (C. C. A. 2) (see 12 N. L. R. B., at

175-176) ; North Whittier Heights Citrus Association v. Na-

tional Labor Relations Board, 109 F. (2d) 76 (C. C. A. 9),

certiorari denied. No. 853, last Term (see 10 N. L. R. B.,

at 1297-1298). In the National Casket case the court said,

“The validity of this provision has not been argued, and we

express no opinion on the point” (107 F. (2d) 998).

The Seventh Cireuit also enforced the work relief provi-

sion in cases where its validity was not challenged, although

it has since, upon specific challenge, held the provision in-

valid. Stewart Die Casting Corp. v. National Labor Rela-

tions Board, decided July 3, 1940 (provision denied enforce-

ment); M. H. Ritewoller Co. v. National Labor Relations

Board, decision upon rehearing, July 16, 1940 (provision

denied enforcement): National Labor Relations Board v.

Lightner Publishing Corp. decided July 1, 1940 ( provision

enforced without discussion); National Labor Relations

Poard v. J. Greenebaum Tanning Co., 110 F. (2d) 984 (pro-

vision enforced without discussion). See also the Brief in

Opposition and the Supplemental Memorandum for the

Board in J. Greenebaum Tanning Co. vy. National Labor

Relations Board, supra, pending on petition for certiorari.

No. 152, this Term.

The normal practice of the circuit courts of appeals is to

enforce provisions of Board orders which are not chal-

lenged, even though their validity has not been specifically

upheld.

14

CONCLUSION

The petition presents no question of general im-

portance, and there is no conflict of decisions. The

petition should therefore be denied.

Respectfully submitted.

Francis BIppLe,

Solicitor General.

Tuomas KE. Harris,

Special Attorney.

CHARLES Faby,

General Counsel,

Rosert B. WATTs,

Associate General Counsel,

LAURENCE A. KNAPP,

Assistant General Counsel,

MortiMer B. WoLr,

FREDERICK M. DAVENPORT,

Attorneys,

National Labor Relations Board.

Avaust 1940.

U.S. GOVERNMENT PRINTING OFFICE: 1940