Opposition Brief — Kalamazoo Stationery Co. v. National Labor Relations Board

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AUTHORITIES CITED

Cases:

Allen-Bradley Local v. Wisconsin Employment Relations

Board, 315 U.S. 740_______- < 19

American News Co., Inc., Matter of, 55 N. L. R. B. 1302... 18

Bethlehem Steel Co. v. New York State Labor Relations

Board, No. 55, October Term, 1946, decided April Zz

PEED. scion nkneuhns AeeRihbbhahon tine tx mekdaeekeunee 19

Hill vy. Florida, 325 U.S. 538 : me 19

National Labor Relations Board vy. Breshear Freight Lines,

119 F. 2d 379___- ze me mca 13

National Labor Relations Board vy. Draper Corn. 145 F. 2d

WO crane nes 6 cae a eek BES Eee Sewer ee eee 13,14

National Labor Relations Beard v. Fansteel Corp., 306 U.S.

eee eK i wee, WIGS. 18

National Labor Relations Board Vv. _ Mackay Radio & ‘Tele-

graph Co., 304 U. S. 383________ Pen Sted erg Stee a Ae 13

National Labor Relations Board v. Reed & oe Mfg. Co.,

118 F. 2d 874, certiorari denied, 313 U.S. 595._._____ 19

Southern Steamship Co. v. National Labor arash Board,

OR Gs Ge Mas tnnckndeud winds senior econ 17,18

Statutes:

Emergency Price Control Act of 1942 (56 Stat. 23, 50

U.S. C. App., Supp. V, 901 (a)...--....__..._..___.. 18

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

49 Stat. 449, 29 U.S. C. 151. et seq.):

Section 2 (3)... 22 _- ciceeinpaiseiae Goeee ees 13

Section 7__ : a 13

War Labor Disputes ‘Act (57 Stat. 163, 50 Uv. S.C. App. «

Supp. V, 1501 et seq.):

Section 8. : er.

Section 10. . = Sa RSD: 21

754555—47—1 «)

Miscellaneous: Page.

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DIODE, THOG, BRNO O0el oak vow eics ccna ccc ncenee cen 16

OO Comm: Res. GNS Gene... - 5 ns ws ence cece cenn 16

og eee 16

80 Cong. Ree. S700, S762, S788... ............-.---<.. 17

H. Rep. No. 440, 78th Cong., Ist Sess. ....-.-..-------- 15

H. Rep. No. 531, 78th Cong., Ist Sess., pp. 5, 9-..------- 16

PURINES THO: BEvG, 10 Fs Oe Lonescaccuciscccnscuus 15

AAATIAANwWN

Inthe Supreme Courtof the Winited States

OcTOBER T'ERM, 1947

No. 152

KaLaMAzoo STATIONERY COMPANY, DIVISION OF

WESTERN TABLET AND STATIONERY CORPORATION,

PETITIONER

Vv.

NaTIONAL Lasor RELATIONS Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court below (R. 478-487) is

reported at 160 F. 2d 465. The findings of fact,

conclusions of law, and order of the National

Labor Relations Board (R. 85-92, 46-79) are re-

ported in 66 N. L. R. B. 930,

JURISDICTION

The decree of the court below (R. 477) was

entered on March 31, 1947. The petition for a

writ of certiorari was filed on June 25, 1947.

The jurisdiction of this Court is invoked under

(1)

2

Section 240 (a) of the Judicial Code, as amended

by the Act of February 13, 1925, and under See-

tion 10 (e) of the National Labor Relations Act.

QUESTION PRESENTED

Whether the National Labor Relations Board

could properly find that petitioner violated See-

tion 8 (1) and (3) of the National Labor Relations

Act by discharging two employees because they

participated in a strike in protest against conduct

by petitioner which they believed discriminatory,

when—

(a) only a minority of the employees partici-

pated in the strike;

(b) no strike notice had been filed with Federal

authorities. pursuant to Section 8 of the War

Labor Disputes Act;

(c) the discharged employees failed to con-

tinue production under the conditions of Section

8 of that Act;

(d) no strike notice had been filed with State

authorities pursuant to Michigan law.

Another question urged by petitioner which we

do not believe is presented is whether the Board

could properly so find if the discharged employees

had been representatives of other employees and

had urged and incited other employees to strike.

STATUTES INVOLVED

Pertinent provisions of the National Labor

Relations Act, the War Labor Disputes Act, and

the Michigan State Labor Mediation Act are set

forth in the Appendix to the petition for a writ

3

of certiorari, pp. 20-25. An additional pertinent

provision of the War Labor Disputes Act, Section

10, 50 U. S. C. See. 1510, is set forth in the Ap-

pendix, infra, p. 21.

STATEMENT

Upon the usual proceedings under Section 10 of

the Act (R. 32-46), the Board, on March 20, 1946,

issued its findings of fact, conclusions of law and

order (R. 85-92, 46-80). The facts as found by

the Board and as shown by the evidence may be

summarized as follows: *

In June 1944, petitioner’s officials learned that

the employees were contemplating unionization

and immediately took steps to thwart such a

movement (R. 50-51; 170-171, 99, 100-104, 293-

294). On June 15, 1944, Plant Superintendent De

Leeuw (R. 50, 325) summoned employee Harold

Hamilton to his office and informed him that he

had learned ‘‘in a round-about way”’ that Hamil-

ton and employee Abraham were starting a union

in the plant (R. 50; 103, 293-294). <A few

moments later petitioner’s vice-president and gen-

eral manager, MeMahan (R. 51; 104), entered the

office and inquired ‘Harold, how many are tied

up in this thing ?’’, adding, “‘If I thought you

were alone I would fire you” (tbid.). When

Hamilton intimated that many employees were

‘In the following statement, record references preceding

the semicolon are to the Board’s findings, including findings

of the Trial Examiner which the Board adopted ; succeeding

references are to the supporting evidence.

4

interested in the union and that they had formed

an organizing committee, McMahan demanded

that Hamilton go out into the factory and “bring

the organizing committee in here’’ explaining

“‘when I get done maybe we won't need a union in

here’’ (R. 51; 104).

After consulting that afternoon with employee

Abraham and others, Hamilton learned that the

employees desired to be represented by the Amer-

ican Federation of Labor, and he thereupon told

first De Leeuw and then McMahan that the em-

ployees refused to deal individually with the

management because they wanted a union to rep-

resent them (R. 51-52; 105-106, 150-151, 433,

440). Upon hearing this MeMahan threatened

“You will be the sorriest guy on earth before I

am done”’ (R. 52; 106).

Hamilton nevertheless took steps to perfect

the organization of a union in the plant; he

requested local A. F. of L. headquarters to send

an organizer to the plant, and typed A. F. of L.

pledge forms which he distributed to interested

employees in various departments (R. 52; 107,

108, 152-153). Shortly after these forms were

circulated among the employees, Superintendent

De Leeuw approached Hamilton and announced,

“‘T have been all over the factory and so far as

I can learn it is you, you big bastard that

started it all. We have been good to you letting

you work all the overtime you pleased, but that

is out from now on. From now on remember

——

—_

5

you don’t get any more overtime. Don’t expect

any more favors’’ (R. 52; 108, 152). Thereafter,

Hamilton was not permitted to work overtime

on weekdays, or to come in and work on Satur-

days, although he had previously been authorized

.to do so whenever he desired (R. 52-53; 97, 99,

108, 117, 159, 163, 433-443).

In addition to depriving Hamilton of overtime

privileges, petitioner exacted further reprisal by

repeatedly diverting him from his regular work

as a skilled machinist and assigning him arduous,

menial and distasteful tasks (R. 53-54, 59-60, 85;

97, 99, 127, 146, 164-166, 224, 289, 379-380, 410-

412, 416-417, 420-421, 483-440). On one occasion

Hamilton was escorted to the pressroom by his

foreman Pritchard, who announced “I will make

you wish you never heard the word ‘Union’ or

else you quit, by God” (R. 54, 59-60 ; 108, 109, 154).

Pritchard thereupon told Hamilton to wash up

a press scheduled for overhaul by another em-

ployee, and, while Hamilton was engaged in this

task, Pritchard called the attention of the press-

room foreman to the spectacle of the ‘‘Union

big-shot over there, washing up the press”’ (R.

54, 59-60; 109, 374-379, 176-177).

On or about August 15, 1944, after Hamilton

had been subjected to a series of similar indig-

nities, employees Abraham and Commissaris in-

formed De Leeuw that the employees deeply re-

sented petitioner’s discriminatory treatment of

Hamilton, and that if it continued the employees

6

might strike, ‘‘most anything could happen” (R.

59; 355, 178, 206-207).

Thereafter, Hamilton was reassigned to his

normal work in the maintenance department, but

was ordered not to leave the machine shop during

working hours (R. 60, 85; 118, 377). This order

climaxed a series of attempts by petitioner to

preclude Hamilton from soliciting union member-

ship in the plant. Although there was no rule

against solicitation and employees generally were

permitted to engage in conversations as long as

work was not interfered with (R. 58-59; 100,

118, 157-159, 163-164, 166, 385-386, 389, 407, 417),

petitioner’s foremen prevented Hamilton, after

his union activies became known, from speaking

to employees in other departments and from

soliciting union membership in the plant on non-

working time (R. 58-59; 115-116, 155-156, 401-

402, 405-406).

Petitioner also exerted pressure on other em-

ployees to induce them to withdraw from the

union movement. Employees were interrogated

about their union affiliations and their grievances

(R. 54-55, 56, 57-58, 85; 251-252, 254-255, 228-

230, 398-399, 174-176); employee Pelkey was

warned by his foreman that employees would

receive no help from him if the Union came in

and that improvements would not be made (R.

94-55; 252-254). Employee Abraham was told

by MeMahan that a union would do him no good;

that the Company could use a man of his ability

—

in a better job and that Abraham could be pro-

moted ‘‘a lot easier’’ if there were no union in

the plant (R. 58; 174-176).

On the basis of the foregoing findings the Board

eoncluded that petitioner had interfered with,

restrained and coerced its employees in the exer-

cise of their self-organizational rights and thereby

violated Section 8 (1) of the Act (R. 64-65,

85-86).

On September 1, 1944, in the course of a re-

duction in force, petitioner laid off employee

Hamilton (R. 61; 97, 120, 444-454, 462-463).

Hamilton was the only employee laid off from the

maintenance department (R. 62; 141, 293, 463,

120), and, of the permanent employees who were

laid off, Hamilton alone had been in petitioner’s

employ for a substantial period (R. 62; 463, 120).

* The evidence shows that these factors, combined with pe-

titioner’s demonstrated hostility to the Union in general and

to Hamilton’s activities on behalf of the Union in particular

(supra, pp. 3-7), hostility which had resulted in actual as

well as threatened discrimination against him (supra, pp.

3-5), and which had provoked a sharp protest from the

employees in August (supra, pp. 5-6), led the employees to

believe that the selection of Hamilton for lay-off was moti-

vated not by bona fide business considerations but rather by

petitioner’s desire to rid itself of the outstanding union

protagonist in the plant (R. 181-189, 123-124, cf. 86). As

the court below held (R. 479) “There is substantial evi-

dence that the [petitioner] discouraged the formation of the

union, that it discriminated against Hamilton because of his

union membership and activity, and that this attitude on its

part towards the union activities led to a proposal on the

part of the Union to call a strike.” The Board, reversing

the Trial Examiner, did not find that the lay-off of Hamilton

constituted illegal discrimination (R. 86, 61-64).

754555—47-_2

8

On the evening of September 1, following Ham-

ilton’s lay-off, the union members met, and, agree-

ing that petitioner’s attacks upon the Union had

finally become intolerable, voted to strike on the

next working day, September 5 (R. 65; 123-124,

181-182, 232-233). On Sunday, September 3,

however, several of the union members, among

them Hamilton, Abraham, and Smith, were in-

formed by a representative of another union

that, in his opinion, since no strike notice had been

filed, the projected strike would be illegal (R. 65;

124-125, 182). They immediately took steps to

prevent the strike from occurring. Union mem-

bers were notified personally and by telephone

that the strike would not take place, and on

Tuesday morning two union adherents stationed

themselves at the plant gates and told the em-

ployees to go in to work (R. 65-66; 125, 182-183,

232, 243, 282). Although the strike plan was

abandoned and the employees went in to work,

their basic grievance had not been eliminated, and

during the day rumors that a strike would occur

circulated throughout the plant (R. 65-66; 244-

245, 271, 281, 344).

That morning employee Abraham, a skilled prin-

ter who was normally not subjected to close su-

pervision, was watched and twice criticized for al-

leged defective workmanship by his foreman

George Nason (R. 66; 183-184, 187-188, ef. 232).

Abraham, who believed and sought to demon-

strate to Nason that his work had not been in the

DDO ANE SS PE OG EPS OOS PRONE LION SRE REE IN VCE n _

EE

9

least deficient, inferred that Nason was “‘riding”’

him because of his prominence in the Union’s

activities, and at lunch time he so informed a

group of employees, among whom were Smith

and Commissaris (R. 66; 184, 185, 186, 224, 232).

After lunch, Nason continued to watch Abraham

and to find fault with him (R. 66-67; 187-188,

205-206). When Abraham finally challenged Na-

son to deny that he was ‘‘doing this because of

my union activities,’’ Nason replied that although

he was entirely neutral, ‘‘You boys have got your

neck out a mile’’ (R. 67; 188). Feeling that his

suspicions were confirmed by Nason’s pointed ref-

erence to the precarious status of union members

in the plant, Abraham decided to wash up his

press and go home (ibid.). Commissaris, who

worked near Abraham in the bindery and who

had lunched with Abraham that day, observed the

latter washing his press and asked where he was

going (R. 67; 184, 188-189). Abraham replied

that he was “‘fed up with it’? and was going home

(R. 67; 189). Commissaris turned to the other

employees in the department and called, ‘‘Come

on, folks, we are going out” (¢bid.). In response

to Commissaris’ call, the entire bindery depart-

ment walked out (R. 67; 189-191). Upon

leaving the bindery, Abraham went to the spiral

department to tell his sister that he was going

home and that the bindery had walked out (R. 67;

190, 218-219, 281). As Abraham passed through

the box department on his way out of the plant,

—_—

10

Smith saw him and asked where he was going (R.

67; 191, 219-220). Abraham explained that he

was going home and that the bindery had walked

out (ibid.). Smith thereupon punched out and

left the plant, as did several other box department

| employees who had learned by inquiring from

Smith the reason for the walk-out (R. 67; 191,

232-234).

Upon leaving the plant, the employees congre-

gated in groups on the parking lot. Shortly

thereafter, DeLeeuw and McMahan approached

the group in which Abraham and Smith were

standing, and DeLeeuw asked why the employees

had walked out (R. 68; 191, 233, 234, 310, 345-

346). Abraham replied that the employees would

return to work only when the Company reinstated

the union members who had been laid off (R. 68;

311, 346). McMahan countered ‘Well, Bill, you

aren’t coming back to work because you are all

through, and that goes for you, too, Smitty

[Smith]; you are the fellows who are responsible

for pulling these people out of the plant” (R. 68;

311, 346, 192). Abraham and Smith were then

told to get their pay checks and were given sepa-

ration slips, stating that they had been discharged

for “‘misconduct in connection with work”’ (R. 68;

346, 470, 471, 265). DeLeeuw told the other em-

ployees that unless they returned to work by

Thursday morning they, too, would be discharged

(R. 68; 192, 311, 346).

The strike continued until September 18 (R.

69 ; 131-132, 138, 139-140, 469). During the course

we i

SR EERO FER OIC LEIS a BED REGRET Se —

11

of the strike Hamilton, on behalf of the Union,

offered to have the employees return to work if

petitioner would reinstate Abraham, Smith, and

himself. (R. 68-69; 129-131). Petitioner refused

the offer. Finally, unable to hold out any longer,

the employees who had not been discharged or laid

off returned to work (R. 69; 120, 131-132, 140-

141, 469). .

Before the Board petitioner conceded, and the

Board found, that petitioner discharged Abraham

and Smith because they had engaged in concerted

activity for the purpose of mutual aid and protec-

tion (R. 43-45, 86-87, 65-71). Petitioner con-

tended that the discharges were justified, how-

ever, because a majority of the employees did not

participate in the strike; no strike notice was filed

pursuant to the War Labor Disputes Act; and no

notice was filed as required by the Michigan State

Labor Mediation Act (ibid.). The Board found

no basis in these objections for depriving Abra-

ham and Smith of the protection of the National

Labor Relations Act; it found that by discharging

these employees, petitioner violated Section 8 (1)

and (3) of the Act, and it ordered petitioner to

reinstate them with back pay (R. 86-88, 69-71).

On May 16, 1946, the Board filed in the court

below a petition to enforce the Board’s order (R.

6-13). On Mareh 31, 1947, the court entered its

opinion (R. 478-487) in which it enforced the

Board’s order in full. The court held that the

strike in which Abraham and Smith participated

12

in protest against petitioner’s anti-union tactics,

was concerted activity protected by Section 7 of

the Act. It further held that such protection was

not forfeited because only a minority of the em-

ployees participated in the strike, or because the

strike was not authorized by officials of the labor

organization to which the employees belonged (R.

479-482). The court construed Section 8 of the

War Labor Disputes Act as imposing a require-

ment upon employees to ‘‘continue production”’ for

thirty days after the inception of a labor dispute

and the filing of a notice thereof, but held that

the failure of Abraham and Smith to observe this

limitation did not warrant denial to them of the

benefits of the National Labor Relations Act since

the legislative history of the War Labor Disputes

Act discloses that Congress did not intend such

a result (R. 482-486). Finally, the court held

that in the absence of authoritative interpretation

of the Michigan State Labor Mediation Act by the

state courts it was unable to determine whether or

not that Act was intended to authorize the dis-

charge of employees who struck without observing

the designated cooling off period (R. 486). The

court noted, however, that if such a consequence

were intended the state law could not be given

effect since it would thereby subtract from the

protection accorded against employer reprisal by

the National Act to employees who engage in con-

certed activities (R. 486-487).

EE ET IS SEE I LEP BOOLEAN 2 IO ——

13

ARGUMENT

1. Petitioner’s contention (Pet. 10-11), that the

strikers were not entitled to the protection of the

National Labor Relations Act because only a min-

ority of petitioner’s employees were members of

the Union and because the strike had not been au-

thorized by an International Representative of the

Union, is entirely without merit. Section 2 (3)

of the Act preserves the status of ‘‘employee’”’ to

‘any individual whose work has ceased as a con-

sequence of, or in connection with, any current

labor dispute or because of any unfair labor prac-

tice." Section 7 protects the right of all “em-

ployees”’ “‘to engage in concerted activities, for

the purpose of * * * mutual aid or protec-

tion.”’ This statutory guarantee on its face ex-

tends to minorities as well as to majorities, and

applies whether or not particular concerted activi-

ties are authorized by officers of a labor organiza-

tion. Cf. National Labor Relations Board vy.

Mackay Radio & Telegraph Co., 304 U. S. 333,

345-347,

Petitioner’s claim of conflict with National La-

bor Relations Board v. Draper Corp., 145 F. 2d

199 (C. C. A. 4) and National Labor Relations

Board vy. Brashear Freight Lines, 119 F. 24 379

(C. C. A. 8) rests upon its erroneous assertion

that the objective of the strikers in the instant

case, as in those cases, was to usurp the position

and prerogatives of exclusive bargaining repre-

sentative. There is no evidence whatever in the

aA

14

record that the purpose of the strike was to induce

petitioner to recognize or bargain with the Union.

On the contrary, the undisputed evidence shows

(supra, pp. 7-8), as the court below found (R.

479-480), that the strike was provoked by peti-

tioner’s repeated acts of hostility toward union

members, and by the layoff of Hamilton and

others on September 1, an act which the em-

ployees believed discriminatory (supra, p. 7, n. 2).

The strikers demanded only that petitioner rein-

state the employees who they believed were being

discriminated against and from the very first they

offered to abandon the walkout on that condition

(supra, pp. 10-11). Under these circumstances the

cases cited by petitioner have no application. As

the Cireuit Court of Appeals for the Fourth Cir-

cuit itself noted in the Draper case (145 F. 2d at

205): ‘*We do not mean to say, of course, that a

strike can be called only by a bargaining union,

or that less than a majority of employees will not

be protected when they go on strike in protection

of their rights. See Firth Carpet Co. v. National

Labor Relations Board, 2 Cir., 129 F. 2d 633).”’

2. No question of importance to the future ad-

ministration of the National Labor Relations Act

is presented by petitioner’s contention (Pet. 12-

16) that Abraham and Smith should have been

denied relief under that Act because of their

alleged violation of the War Labor Disputes Act.

The latter Act, a temporary wartime measure, ex-

MNES EL ODI IG EF SBE EE EE STI LG TL IEE Ta ——

7"

15

pired, by its term, on July 1, 1947, six months after

the President, on December 31, 1946, proclaimed

the termination of hostilities. Proclamation No.

2714, 12 F. R. 1. A determination of the impact

of such wartime legislation upon the administra-

tion of the National Labor Relations Act would

therefore have no widespread significance.

In any event, the Board and the court below

correctly deemed controlling on this issue the Con-

gressional judgment that employee violations of

Section 8 of the War Labor Disputes Act should

not be punished by forfeiture of rights or remedies

available under the National Labor Relations Act.

The War Labor Disputes Act contains no pro-

vision authorizing the withholding of such rights

or remedies from employees found to have violated

Section 8 of that Act: The legislative history,

moreover, indicates that Congress considered and

rejected a proposal which would have denied to

violators of Section 8 the benefits of the National

Labor Relations Act.®

*The provisions of the War Labor Disputes Act dealing

with strikes in privately operated plants (subsequently en-

acted as Section 8), were introduced into the legislation by

the House of Representatives (H. Rep. No. 440, 78th Cong.,

Ist Sess.). As proposed by the House Committee on Military

Affairs and passed by the House, three penalties were to be

provided in the case of strikes which occurred prior to the

filing of a strike notice. The first rendered any person who

violated the section liable for damages in a civil suit to any

person injured as a result of violation. The second, which

ultimately failed of passage in the Senate, empowered federal

district courts to enjoin violations or threatened violations.

16

The legislative history further establishes that

this proposal was rejected because Congress de-

sired to preserve to employees all of their pre-

existing rights and remedies under the National

Labor Relations Act, and did not deem denial of

such rights or remedies an appropriate method of

insuring compliance with the provisions of Sec-

tion 8.‘ Members of the conference committee

The third, which was also rejected by the Senate, provided

that violators should forfeit their rights under the National

Labor Relations Act. (89 Cong. Rec. 5328-5329, 5382.)

Congressman Smith of Virginia, the sponsor of these pro-

visions (89 Cong. Rec. 5326-5327), explained that their pur-

pose was to remove the advantages and protection accorded

concerted activities under the Norris-LaGuardia Act and the

National Labor Relations Act in cases where such activities

occurred in violation ef the War Labor Disputes Act (89

Cong. Rec. 5304-5305). Following disagreement by the Sen-

ate to the amendments of the House (89 Cong. Rec. 5382),

a conference committee of both houses met, revised the bill

and recommended its adoption in the form in which it ulti-

mately became law (H. Rep. No. 531, 78th Cong., 1st Sess.).

The conferees eliminated those provisions of the House bill

which would have deprived violators of Section 8 of their

rights and remedies under the National Labor Relations Act

and the Norris-LaGuardia Act. H. Rep. No. 531, 78th Cong.,

Ist Sess., pp. 5, 9. The only enforcement provision which

the conferees retained in the War Labor Disputes Act was that

subjecting violators to civil liability for damages resulting

from wilful failure to perform acts required by Section 8 (c).

* There is no basis whatever in the legislative history for

petitioner's suggestion (Pet. 14-15) that Congress may have

rejected the forfeiture provision merely because it was too

broad. If Congress had desired to withdraw any protection

under the National Labor Relations Act from violators of the

War Labor Disputes Act it would not have lacked apt lan-

guage to accomplish its precise objective.

17

which struck the forfeiture provision from the

House bill made it clear that the reason for doing

so was that the provision would have impinged

upon rights and remedies available under the

National Labor Relations Act and that Congress

wanted no ‘‘impairment whatever of those rights”’

(89 Cong. Ree. 5730, 5732, 5733). After the

forfeiture provision was stricken, Congressman

Thomason explained on the floor of the House that

“Whatever rights the laboring man or the labor

unions now have under the National Labor Rela-

tions Act, they still have them under this bill”’

(89 Cong. Ree. 5733).

In refusing to consider the fact of violation of

Section 8 of the War Labor Disputes Act as justi-

fication for withholding the benefits of the Na-

tional Labor Relations Act from strikers, the

Board and the court below heeded the Congres-

sional determination that such violations should

have no impact upon administration of the Na-

tional Labor Relations Act. They clearly ob-

served the mandate of this Court that ‘“When the

legislative purpose is so plain,’’ administrative

and judicial bodies ‘“‘cannot assume to do that

which Congress has refused to do” Southern

Steamship Co. v. National Labor Relations Board,

316 U. S. 31, 43-44. There are no contrary

decisions.

Denial of the benefits of the National Labor

Relations Act to persons whose concerted activ-

18

ities either in manner or purpose violate other

laws is, of course, proper only where Congress has

left the Board fre> to accommodate application

of the National Labor Relations Act to protection

of another public interest which employees have

infringed. Thus, in the Southern Steamship

case, because the impact of preexisting mutiny

laws upon the National Labor Relations Act had

never been considered by Congress, the Board was

held bound to accommodate its policies to the

Congressional objectives embodied in those laws. !

Again, Congress had never had oceasion to con-

sider the impact of age-old policies against violent

seizure of property upon the Act’s protection of

concerted activities. This, therefore, in National

Labor Relations Board vy. Fansteel Corp., 306

U. S. 240, was held to be a task for the Board.

Where, on the other hand, Congress enacts legis-

lation with the National Labor Relations Act in

mind, as it did in the case of the Emergency Price

Control Act of 1942 (56 Stat. 23, 24, 50 U.S. ¢.

App., Supp. V, 901 (a), and the War Labor Dis-

putes Act, the Board is bound to give to the new

legislation the effect intended by Congress. Com-

pare, Matter of American News Co., Inc., 55 N. L.

R. B. 1302, 1308-1309. The refusal of Congress,

after due consideration, to provide in the War

Labor Disputes Act that the Board’s administra-

tion of the National Labor Relations Act should

be affected by the newly adopted policies stands in

ee eee

19

sharp contrast to the express provision to that

effect in the Emergency Price Control Act, and

demonstrates the propriety of the Board’s refusal

to restrict the benefits of the National Labor Re-

lations Act contrary to the intention of Congress.

3. Petitioner’s contention (Pet. 18-19), that

an application of the Michigan State Labor Medi-

ation Act which would deny to employees who

engaged in concerted activities during the cooling-

off period the protection against employer reprisal

accorded under the National Labor Relations Act

would not be in conflict with that Act, is frivolous.

As the court below pointed out (R. 487), “The

Federal Act does not require the giving of notice

of a pending dispute followed by a cooling-off

period.” Clearly the imposition of such a re-

quirement as a condition to the exercise of rights

conferred under the National Act would subtract

from the protection accorded concerted activities

by Congress. In refusing so to apply the Michi-

gan Act, the Board and the court below followed

the controlling decisions of this Court. Hill vy.

Florida, 325 U. S8. 538, 539; Allen-Bradley Local

Vv. Wisconsin Employment Relations Board, 315

U. S. 740, 750-751. Cf. Bethlehem Steel Co. v.

New York State Labor Relations Board, No. 55,

October Term, 1946, decided April 7, 1947;

National Labor Relations Board v. Reed & Prince

Mfg. Co., 118 F. 2a 874, 885-886 (C. CL A. 1),

certiorari denied, 313 U. S. 595. There are no

contrary holdings.

20

4. As the facts set forth in the Statement show

(supra, pp. 8-11), and as the Board found (R.

70), Abraham and Smith did not urge or incite

other employees to strike. Petitioner neither con-

tended nor established before the Board that they

were representatives of other employees. There-

fore, the question urged by petitioner (Pet. 8), in-

sofar as it assumes that Abraham and Smith urged

and incited other employees to strike, and were

representatives of other employees, is not presented.

CONCLUSION

The decision below is clearly correct in all

respects here challenged, and presents no conflict

of decisions. Moreover, since the War Labor

Disputes Act has expired, the question concerning

the applicability of that Act in such circumstances

as here presented has no importance for the

future. The petition for a writ of certiorari

should, therefore, be denied.

« GrorceE T. WasHINGTON,

| Acting Solicitor General.

Y GERHARD P, Van ARKEL,

General Counsel,

Morris P. GLUSHIEN,

Associate General Counsel,

_ Rutu Weyanp,

/ Mozart G. Ratner,

Attorneys,

National Labor Relations Board.

JuLY 1947.

APPENDIX

Section 10 of the War Labor Disputes Act,

(57 Stat. 163, 50 U. S. C. App., Supp. V, 1501,

et seq.) provides as follows:

Except as to offenses committed prior

to such date, the provisions of this

Act * * * shall cease to be effective

at the end of six months following the ter-

mination of hostilities in the present war,

as proclaimed by the President * * *

(21)

©. 8, COVERNMENT PRINTING OFFICE: i947