Opposition Brief — Weissman v. National Labor Relations Board

INDEX

EN SS 5) agaded daw the ehan chm aebasd re tech <> ;

at tiie k knot yh wy oe OG Gini eats cok Res oe

aoe skh nv 6.65 Riek SX SEER ROS ae Obes oak

EN Soo S Gero ce RS ea Soe mae OTe aly

EL A cy st hind cial cidn xe ai ee Wl wy Fk Re RRM

AUTHORITIES CITED

Cases:

National Labor Relations Board v. Donnelly Garment Co., 330

cathe Cat et Cann batty yh x Gina Gaeta ee wel

National Labor Relations Board v. Indiana ¢ Michigan Elec-

CMe. did waa EN esos hae wes We Nace C3

Statutes:

National Labor Relations Act (49 Stat. 449, 29 U. 8. C. 151,

et seq.):

ETE Lie can ad ee keke See Kee hear eta eee

ES Sk a's sy Salsa chew awn <ba vey as aOR ENS Ow ta

su diies & und vate went PAR ea ne WR’ Ue OA

RE TET Ee CUES OL eT Cre ee TERT Cee

National Labor Relations Act, as amended (61 Stat. 136, 29

U.S.C., Supp. I, 141, et seq.) :

he. eVarG eile karee ea des aks sh ect

(1)

i

KOoOONnN Nee

et

ll

ll

ll

ll

12

Ynthe Supreme Gourt of the Vinited States

Ocrosper TERM, 1948

No. 677

Frep P. WeissMAN, AN INpDIvIDUAL d/b/a FRED

P. WEISSMAN COMPANY AND FRED P. WEISSMAN

CoMPANY, A CORPORATION, PETITIONERS

Vv.

NaTIONAL LaBor RELATIONS Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINION BELOW

The opinion of the court below (R. 530-535) is

reported in 170 F. 2d 952. The findings of fact,

conclusions of law, and order of the National Labor

Relations Board (R. 40-78, 88-97) are reported in

69 N. L. R. B. 1002.

JURISDICTION

The decree of the court below was entered on

November 29, 1948 (R. 529). The Company’s peti-

(1)

2

tion for rehearing was denied on January 3, 1949

(R. 539). The jurisdiction of this Court was in-

voked under Section 1254 of 28 U.S. C., and Section

10 (e) of the National Labor Relations Act, as

amended.

QUESTIONS PRESENTED

1. Whether there is substantial evidence to sup-

port the Board’s finding that the Union’s efforts to

organize petitioners’ employees were peaceful and

bona fide.

2. If the above question is answered in the nega-

tive, whether the misconduct of the Union deprived

the Board of jurisdiction to remedy petitioners’

unfair labor practices.

STATUTES INVOLVED

The pertinent provisions of the National Labor

Relations Act (49 Stat. 449, 29 U.S. C. 151, et seq.),

and of the Labor Management Relations Act of

1947 (61 Stat. 136, 29 U. S. C. Supp. I, 141,

et seq.) are set forth in the Appendix, infra,

pp. 11-12.

STATEMENT

Upon the usual proceedings under Section 10

of the National Labor Relations Act, the Board,

on July 31, 1946, issued its findings of fact, con-

clusions of law, and order (R. 88-97). The per-

tinent facts, as found by the Board, may be sum-

marized as follows:

Fred P. Weissman was formerly engaged in

New York City in the manufacture of women’s

ae

3

coats (R. 45 ; 288, 352-353). While there engaged,

he was bound by the terms of a collective bargain-

ing agreement with the International Ladies’ Gar-

ment Workers Union, AFL, herein called the

Union (ibid.). In May or June of 1940, Weiss-

man moved to Cincinnati and there resumed manu-

facturing operations as Fred P. Weissman, d/b/a

Fred P. Weissman Company,’ herein called the

Company (R. 45; 290-291). Shortly thereafter, a

dispute developed between the Company and the

Union as to whether Weissman had fully dis-

charged his obligation to the Union pursuant to his

contract before leaving New York (R. 45-46; 479-

480). The Union sought to persuade the Company

to return to New York (R. 47-48; 288-290, 356).

The Union also asked the Company to hire workers

referred to it by the Cincinnati local of the Union

(R. 46; 478-479). When the Company refused to

accede to the Union’s requests, the Union picketed

the Company’s plant (R. 46; 479, 481-482). The

Company thereupon abandoned its Cincinnati

operations, and in August 1940 opened a plant in

Lawrenceburg, Indiana (R. 46; 317). The Union

then picketed the Lawrenceburg plant (R. 46;

1 References before the semicolon are to the Board's findings

as set forth in the Board’s decision; references after the semi-

colon are to the supporting evidence.

2 Fred P. Weissman operated the business as Fred P. Weiss-

man Company until December 1, 1945, when the Fred P.

Weissman Company, a corporation, organized by Fred P.

Weissman, took over the business (R. 42-43; 101, 114). The

Board found that all of the unfair labor practices herein oc-

curred before December 1, 1945 (R. 71), and, accordingly,

reference will be made exclusively to the Company.

4

317-318), and the Company moved its business to

Harrodsburg, Kentucky, where it began opera-

tions in June 1941 (R. 47; 109, 167-168, 175-178,

281-282).

In March 1945 the Union began a drive to or-

ganize the employees of the Harrodsburg plant

(R. 49; 132-134, 154-155). This drive was marked

by a heated campaign between the Union and anti-

Union employees in which Weissmaz and his Gen-

eral Manager, Drimmer, interrcgated employees

concerning their union affiliations and activities

(R. 49, 50; 127, 135-136, 267), and Company super-

visors discouraged membership in the Union (R.

55-56; 178-179, 200, 451), and warned employees

not to join any union if they wished to continue

working at the plant (R. 55; 488).

On September 19, 1945, a large number of anti-

Union employees assembled at the door of the

plant, and by threats and force excluded employees

Teater, Drury, and Springate, members of the

Union, from the plant (R. 59, 88-89; 139-142, 179-

182, 203-95, 221-222, 260-261, 396-397, 401, 418, 425-

426, 437-438). General Manager Drimmer was

present during this occurrence (R. 60-61; 185, 206,

222), and approved the conduct of the anti-Union

group (R. 60-62 ; 252, 254-256). Supervisors Rans-

dell, King, Watts, and Hellard were also present,

Hellard taking part in the scuffle with Teater,

one of the excluded employees (R. 60; 185-186, 204-

205, 223-224, 386-387, 395, 456-457, 461-462, 463-464,

Tr. 827). Employee Floyd Shirley, after witness-

5

ing the melee, took Teater, who was injured, to a

doctor (R. 59, 89; 142, 262). The following day,

when Shirley was checking out at noon for lunch, he

was told, in the presence of Supervisor Watts, by

employee Weldon, spokesman for a group of assem-

bled employees, that his services were no longer

needed, and he was ordered not to return to the

plant (R. 64; 264). Shirley did not attempt to

enter the plant on his return because he knew the

door was being held, and he wished to avoid trouble

and the use of force (R. 90-91 ; 273-275).

On the morning of October 29, employee Sallee,

a member of the Union, while at work was accused

of engaging in union activities by a group of em-

ployees. When Sallee left the plant for lunch,

the same group warned her not to return that

afternoon ‘‘because the doors will be locked’”’ (R.

65-66 ; 231-232). Sallee immediately advised Gen-

eral Manager Drimmer about her threatened ex-

clusion, and was instructed by him to return to

work after lunch, at which time he promised to

meet her at the plant (ibid.). Sallee, after return-

ing to the plant as instructed, found the door

locked, and was again informed by the employees

that she could not work at the plant because she

was‘ or the Union” (R. 66; 232, 420, 428). When

Drimmer arrived, Sallee explained to him that

she was being denied the right to enter the plant

(R. 66; 232). Drimmer advised Sallee there was

nothing he could do for her and that she should

go home (ibid.).

The excluded employees subsequently received

termination notices stating that they had ‘*volun-

tarily’’ quit their employment with the Company

(R. 64; 120-124, 147-148, 190, 209, 235, 266, 505-508).

Each of them replied to the Company by letter,

denying having voluntarily quit their employment

and explaining that each of them had been pre-

vented from entering the plant. The replies stated

further that they were ready, able, and willing to

continue their employment. Weissman did not

answer them, and these employees were never rein-

stated. (R. 65, 68; 347.)

Upon the basis of the foregoing facts, the Board

found (R. 52, 56) that the conduct of the Com-

pany’s officials and supervisors, ranging from the

questioning of employees as to their union activi-

ties to outright threats of discharge because of

their union affiliations and their failure to sign a

petition renouncing the Union, constituted inter-

ference and coercion in derogation of the em-

ployees’ statutory right to full freedom of organiza-

tion, in violation of Section 8 (1) of the Act. The

Board further found (R. 68-70, 91) that the Com-

pany, in violation of Section 8 (3) and (1) of the

Act, discriminated against the excluded employees

by acquiescing and participating in their exclusion

from the plant and by refusing to remedy the dis-

crimination by denying them reinstatement despite

their request therefor, because of their activity

and membership in the Union.

7

The Board rejected the Company’s contention

that the Union’s efforts to organize its employees

were not bona fide but merely part of an unlawful

scheme to drive the Company out of business (R.

47-49; 288-290). It considered the evidence ad-

duced by the Company to show violence and fraud

on the part of the Union, but found it insufficient

to establish such conduct (R. 48; 301, 307-308, 310,

317-318, 356, 358). The Board also pointed out

that the evidence of such conduct related only to the

years 1940 and 1941 at Cincinnati and Lawrence-

burg and had no direct relationship to the organiz--

ing campaign in Harrodsburg in 1945 (R. 48-49).

Accordingly, the Board determined that this evi-

dence was insufficient to cause the Board to decline

consideration of the case (R. 47-49).

The Board ordered the Company: to cease and

desist from such unfair labor practices ; to instruct

their employees that they will not permit any em-

ployees to exclude other employees from the plant

or to permit or threaten violence for such pur-

poses ; to offer reinstatement with back pay to the

five employees discriminated against; and to post

appropriate notices (R. 92-97).

On August 28, 1947, the Board filed a petition

for enforcement of its order in the court below

(R. 1-6), and on November 29, 1948, the court

handed down its opinion sustaining the Board’s

order in full, and entered its decree of enforce-

ment (R. 529-535).

8

ARGUMENT

1. The petition for certiorari is based on the as-

sumption that the Union was using the Board’s

processes as part of an effort by the Union to drive

the Company out of business by the use of fraud

and violence (Pet. 3, 5-6, 8, 10). The Board per-

mitted the Company to adduce whatever evidence

it wished in support of its contention (R. 291-323,

352-363). The evidence adduced was all the most

remote hearsay and related only to events occurring

in Cincinnati and Lawrenceburg in 1940 and 1941

(ibid.), while the case before the Board related to

events occurring in Harrodsburg in 1945. The

Board accordingly rejected the Company’s conten-

tion as lacking in evidential support.

The Board found that ‘‘on this record * * * the

Union did not engage in fraud and violence”’ (R.

48); that the Union’s objective in attempting to

organize the Company’s Harrodsburg plant was

the normal one of establishing bargaining rela-

tions (R. 49, n. 12; 485); and that the Union’s

organizing activities were not in any manner at

variance with the usual, lawful activities of labor

organizations (R. 48-49). The court below in rul-

ing upon this aspect of the case stated (R. 534) :

The Board considered the evidence in the

aggregate, i.e., that relating to the enforcement

of its order, as well as respondents’ contention

that the action of the Union was unlawful, and

arrived at a well sustained inference contrary

to respondents’ claim. We are not authorized

to nullify its decision. Labor Board v. Link-

9

Belt Co., 311 U. 8. 584; Nat. Labor Relations

Board v. Nevada Consol. Copper Corp., 316

U. S. 105.

The petition thus presents solely a question of evi-

dence. No issue justifying review by this Court

is raised.

2. The cases of National Labor Relations Board

v. Donnelly Garment Co., 330 U. S. 219, and Na-

tional Labor Relations Board v. Indiana & Michi-

gan Electric Co., 318 U. 8. 9, upon which the Com-

pany relies (Pet. 7), hold only that the Board must

receive and consider evidence of unlawful conduct

by the charging union in determining whether to

lend its administrative processes to remedy unfair

labor practices. Here the Board did receive and

consider such evidence (R. 47-49; 291-323, 352-

363). As the court below pointed out, the Donnelly

and Indiana & Michigan cases establish that once

the Board has received and considered such evi-

dence, the decision as to whether to entertain and

proceed upon the charges rests ‘‘within the discre-

tion of the Board’’ (R. 534).

10

CONCLUSION

The decision below, sustaining the Board’s find-

ings and order, is correct. No conflict of decisions

is presented. The petition for a writ of certiorari

should be denied.

Respectfully submitted,

/ Pup B. PERLMAN,

Solicitor General.

J Rosert N. DENHAM,

General Counsel,

v Davin P. FINDLING,

Associate General Counsel,

RutH WEYAND,

J Assistant General Counsel,

WituiaM W. KaAPELL,

Attorney, National Labor Relations Board.

Apri 1949.

Bs

11

APPENDIX

1. The relevant provisions of the National Labor

Relations Act (Act of July 5, 1935, 49 Stat. 449,

29 U.S. C. 151, et seq.) are as follows:

* * * * *

RicHTs OF EMPLOYEES

Sec. 7. Employees shall have the right to

self-organization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to

engage in concerted activities, for the purpose

of collective bargaining or other mutual aid

or protection.

Sec. 8. It shall be an unfair labor practice

for an employer—

(1) To interfere with, restrain, or coerce

employees in the exercise of the rights guaran-

teed in section 7.

* *” * * *

(3) By discrimination in regard to hire or

tenure of employment or any term or condition

of employment to encourage or discourage

membership in any labor organization: * * *

* * * * *

PREVENTION OF UNFaIR LaBor PRACTICES

Sec. 10. (a) The Board is empowered, as

hereinafter provided, to prevent any person

from engaging in any unfair labor practice

(listed in section 8) affecting commerce. * * *

12

The relevant provisions of the National Labor

Relations Act, as amended (61 Stat. 136,29 U.S.C.,

Supp. I, 141, et seg.) are as follows:

* * * * *

a we. * * *

* * * * *

(e) The Board shall have power to petition

any circuit court of appeals of the United

States * * * within any circuit or district,

respectively, wherein the unfair labor practice

in question occurred or wherein such person

resides or transacts business, for the enforce-

ment of such order * * * and shall certify

and file in the court a transcript of the entire

record in the proceedings, including the plead-

ings and testimony upon which such order

was entered and the findings and order of the

Board. Upon such filing, the court shall cause

notice thereof to be served upon such person,

and thereupon shall have jurisdiction of the

proceeding and of the question determined

therein, and shall have power * * * to make

and enter upon the pleadings, testimony, and

proceedings set forth in such transcript a de-

eree enforcing, modifying, and enforcing as

so modified, or setting aside in whole or in

part the order of the Board. * * * The find-

ings of the Board with respect to questions of

fact if supported by substantial evidence on

the record considered as a whole shall be con-

clusive. * * *

* * * * *

Wu. &. GOVERNMENT PRINTING OFFICE: 1949 e13440 sea