Opposition Brief — Epstein v. National Labor Relations Board

INDEX

Page

Opinions below .... fiche Chena e crs Or etre Te 1

fs Skuse Fad Deely eV kes , hea 2

Statute involved 2

Questions presented . 2

Statement:

A. The Board’s findings of fact ; 2

1. The unfair labor practices committed prior to the

filing and service of the original charge .. 2

2. Petitioners continued anti-union campaign after

the filing of the original charge .. te 6

B. The Boards conclusions and order ee 7

C. The decision of the court below : 8

Argument irs: SLAG ae rome Are ET Reig s 10

Conclusion ad AP eee re AAS Ae ie 14

Appendix . re nee Fag tate teeta 15

CITATIONS

Cases:

Franks Bros. Co. v. National Labor Relations Board, 321

WETS WII ig 6 ts alta es a Ea ROSS uae bina 12

D. H. Holmes Co. v. National Labor Relations Board, 179

eC RE AS Reh An pere rae Bene e 12

Indiana Metal Products Corp. v. National Labor Relations

I ME I EUR 5-5 <>. s oe Conte MS ane a ek eee 9,10

Joy Silk Mills, Inc. v. National Labor Relations Board,

185 F. 2d 732, certiorari denied, 341 U.S. 914...... 12

May Dept. Stores Co. v. National Labor Relations Board,

326 U.S. 376 . CE ev erra gs cd Pi ge eS eR at eee 12

Medo Photo Supply Corp. v. National Labor Relations

Board, 321 U.S. 678 _. 12

National Labor Relations Board v. Mz A. Hanna Co., 125

ee RO Ae tot ee rc baleen: 12

National Labor Relations Board v. Harris, 200 F. 2d 656 10

National Labor Relations Board v. Minnesota Mining and

PEE 0s LEU By MEO ok he ea ae welts sees 12

National Labor Relations Board v. Newport News Ship-

building & Dry Dock Co., 308 U.S. 241 . ay 12

National Labor Relations Board v. Reed & Prince M fg.

Co., decided June 9, 1953, 32 LRRM 2225... ......... 12

National Labor Relations Board v. Van Kleeck, 189 F.

ARES leat ee ian bias taped ent Sah Ur rene hE wi 12

National Labor Relations Board v. ‘Yale ¢& Towne M fg.

Co., 114 F. 2d 376 . ERSTE ee ee OL eRe 12

National Licorice Co. v. . National Labor Relations Board,

SR OI, ho os drs cee ak ys Se Le oueee mee 9

Oughton v. National Labor Relations Board, 118 F. 2d 486 12

(1)

ul

Statutes :

Page

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

29 U.S.C., Supp. V, 151, et seq.):

Section 7 .. ar See Bak oe Sie 15

SS errs rar MR ee gem! 15

ee eee Nene 15

a i

Ynthe Supreme Court of the Wnited States

OcToBER TERM, 1953

No. 210

Harry Epsreix, Irnvina Epstein, AND LENA Ep-

sTEtN, Co-Partners, d/b/a Tor Mopr Manv-

i FACTURING Co., PETITIONERS

= NATIONAL LABOR RELATIONS BoArD

Md

; ON PETITION FOR A WRIT OF CERTIORARI TO THE

; UNITED STATES COURT OF 47PPEALS FOR THE THIRD

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

i The opinion of the court below (R. 412-416) is

§ reported at 203 F, 2d 482. The findings of fact, con-

clusions of law, and order of the National Labor

Relations Board (R. 4a-10a, 11a-75a) are reported

at 97 NLRB 1273.

(1)

2 }

JURISDICTION

The decree of the court below (R. 423-426) was

entered on May 19, 1953. The petition for a writ

of certiorari was filed on July 27, 1953. The juris-

diction of this Court is invoked under 28 U.S.C.

1254 (1).

STATUTE INVOLVED }

The pertinent provisions of the National Labor

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

Supp. V, 151, et seq.), are set forth in the Appen-

dix, infra, pp. 15-16.

QUESTIONS PRESENTED

1. Whether the Board was precluded by the limi-

tations proviso in Section 10(b) of the Act from

making any findings with respect to unfair labor

practices committed by petitioners after the filing

of a charge against them and more than six months

prior to the filing of an amended charge, restating

and bringing up to date the averments of the orig-

inal charge, where the intervening unfair labor

practices were a continuation of, and of the same

class as, those timely averred in the original charge.

2. Whether, in any event, the unfair labor prac- Pe

tices to which the foregoing question is immaterial

are sufficient to sustain the Board’s order in its en-

tirety.

STATEMENT

A. The Board’s findings of fact

1. The unfair labor practices committed prior to

the filing and service of the original charge

On August 29, 1949 the Union (Local 108, Inter-

national Ladies’ Garment Workers Union, A. F.

PEREIRA NRRL HN SRM tH NEARY TN TF RINE aT PE RDTION TE GE NTRS

3

of L.), having in its possession authorization cards

signed by 14 of petitioners’ 27 employees constitut-

ing an appropriate unit, wrote to petitioners ad-

vising them of the Union’s majority status and

requesting petitioners to bargain collectively (R.

26a-27a ; 151a-152a, 365a, 369a-370a). As of Sep-

tember 4, a total of 24 of the employees had signed

cards designating the Union as their bargaining

representative (R. 27a; 369a-370a). On Septem-

ber 6, 1949, petitioners’ attorney, without question-

ing the Union’s majority status, replied to the

Union’s request for bargaining, stating in sub-

stance that petitioners would not recognize the

Union until it had been duly certified by the

Board, after an election, as bargaining represent-

ative of the employees (R. 29a; 366a-377a). On

September 7, the Union filed a petition for certifica-

tion with the Board (R. 29a; 134a-136a, 157a-158a).

On September 6, 1949, the same day that peti-

tioners’ counsel advised the Union that it would not

be recognized until certified by the Board, petition-

ers, as the Board found, set about to alienate the

employees from the Union and thereby destroy the

Union’s majority status. Thus, on the morning

of September 6, Harry Epstein, one of the firm

partners, accused employee Baker of organizing

the plant, and threatened that if the Union came

in he would reduce the workweek of the cutters and

shippers from fifty to forty hours (R. 42a;

263a-265a, 305a). Later that day, or the next,

Epstein told employees Yoder and Baker that

if the Union was successful he could cut their

work to 2 or 3 days per week, and could also close

— SEAR OEE LEE EL EL TTR IR III ER AEE SY I RE

= - See ree be Peeters

4

the plant (R. 48a; 248a-249a). On the afternoon

of September 6, Epstein assembled the employees

and delivered a speech about the Union, in the

course of which he promised that they would soon be

put on piece work rates, thereby earning more

money (R. 35a, 65a; Tr. 1014). After the meeting,

Epstein asked employee Gearheart how he and the

other employees felt about the Union and urged

him ‘‘to be for me”’ (R. 41a; 2138a-215a). Shortly

thereafter Epstein asked employee Yoder to in-

form him concerning the sentiment of other em-

ployees toward the Union, and the following morn-

ing demanded that Yoder report to him the names

of the employees who had attended a Union meet-

ing the previous evening and what had occurred.

In the course of the same conversations Epstein

requested that Yoder keep him advised concerning

the Union’s plans, and promised that Yoder would

not regret cooperating with him (R. 41a-42a; 241a-

245a).

During this period Epstein also urged Baker to

induce the employees to vote against the Union

in the election; stated to Gearheart that he, Ep-

stein, could. control the hours the plant would

operate ; a after questioning three employees,

Gruver, Singer, and Spangler, about their feel-

ings toward the Union, threatened to close the

plant if the Union was successful (R. 42a-44a;

221a-222a, 227a-229a, 275a). On September 19,

petitioners put into effect the changeover from the

hourly rates to the piece work rates which Epstein

had promised on September 6, and on the following

———E eer

4)

day, September 20, Epstein attempted to have the

election postponed so that the employees would

have ‘‘full opportunity’”’ to realize the improve-

ment he had made in their wages, and ‘‘ would know

exactly what they were voting for’”’ (R. 35a, 37a;

140a, 144a-146a, 163a). During the following week

Epstein promised employees Yoder, Gearheart,

Baker, and Snow that he would ‘‘bend over back-

wards”’ for them if they ‘‘stuck with him”’ and give

them a raise ‘‘when this thing blows over’’ (R. 7a,

44a; 217a-219a, 242a-243a, 271a-272a, 315a-317a).

On September 28, the Union, after investigating

reports concerning the above-described conduct,

withdrew its petition for certification and filed a

charge’ against petitioners averring in substance

that petitioners had violated Section 8(a)(5) and

(1) of the Act by refusing to bargain with the Un-

ion and Section 8(a)(1) ‘‘by other acts and con-

duct extending over a period from August 31, 1949

to the date hereof, including but not limited to in-

terrogation of employees concerning their union

membership, solicitation of employees to act as

informers on union activities, promises of benefits

to employees, threats of reprisal if the Union

should win an election, misrepresentations con-

cerning Union wages, hours and working condi-

tions and other similar acts and conduct too nu-

merous to detail herein * * *.”? (R.45a; 148a,

168a-169a, 350a-352a).

1 The petition (p. 5) states that this charge was served on

the employers on October 3, 1949.

6

2. Petitioners’ continued anti-union campaign

after the filing of the original charge

Following the filing of the charge, petitioners

continued, by an almost identical course of conduct,

to undermine the Union’s status. Thus, about Oc-

tober 21, 1949, Epstein told employee Yoder that

he would be rewarded ‘‘in the end’”’ if he remained

‘‘loyal’’ to his employers, and at about the same

time interrogated employees Baddorf, Bellman,

Freeland, and Jacobs as to whether they had re-

ceived any recent communications from the Union

(R. 45a ; 233a-234a, 246a-247a, 312a-313a). Shortly

thereafter Epstein participated in the preparation

of a petition disavowing the Union, which was then

circulated among the employees and signed by all

of them (R. 46a-47a; 51a; 276a-299a, 371a). And,

during a Christmas party held in the plant in De-

cember, Epstein told employee Baker that if they

had not ‘‘done something to stop the Union,’’ the

plant would have been closed (R. 5la-52a; 302a- .

303a). During this period petitioners, in order to | )

keep abreast of the gains won by the Union in other )

plants, also instituted unilaterally a noncontribu- |

tory sick benefit plan and a program of paid vaca-

tions (R. 52a; 104a-106a; 276a). In February,

1951, petitioners unilaterally granted a general

wage increase of 6 percent (R. 52a; 105a-107a).

On April 2, 1951, the Union filed an amended

charge which repeated the allegations of the orig-

inal charge and extended them ‘‘to the date hereof”’

(R. 353a-355a).

PE LR I SE IR RRL AEE RAN ANEN Si ite SA at ET eT BMT TARE PCE CSL Ni PAT TIT CU mb By rae oa i ea WT

7

B. The Board’s conclusions and order

Upon the foregoing findings of fact, the Board

concluded that petitioners had violated Section

8(a)(1) and (5) of the Act during the period im-

mediately preceding the filing of the original

charge by refusing to bargain collectively with the

Union on and after September 6, 1949,* interro-

gating their employees concerning their union ac-

tivity, threatening to curtail work and to close

the plant if the Union was successful, promising

benefits to employees if they would cooperate to

keep the Union out of the plant, and unilaterally

instituting wage increases and improved working

conditions (R. 5a-8a, 40a-44a, 56a, 67a-68a). The

Board further found that after the filing of the

original charge petitioners had persisted in their

misconduct violative of Section 8(a)(1) and (5)

of the Act by continuing to interrogate emnloyees

concerning their union activities, by prom. .ng and

granting benefits to employees for opposing the

Union, and by unilaterally instituting changes in

working conditions (R. 68a-69a, 7a).

The Board’s order requires petitioners to cease

and desist from (R. 8a-9a) :

2 The Board found that petitioners’ insistence upon a Board

election to determine the Union’s majority status was not

prompted by any good faith doubt as to that status but, as

petitioners’ subsequent illegal conduct demonstrated, by a pur-

pose to take advantage of the intervening time prior to the

election to dissipate the Union’s majority. The Board accord-

ingly concluded that petitioners’ refusal to bargain with the

Union on and after September 6, 1949 was violative of the

Act (R. 5a-6a, 57a-67a).

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8

Interrogating their employees concerning

their union activities ; threatening to cut down

their work or shut down the plant, and prom-

ising them economic benefits, to discourage

their union affiliations and activities; taking

unilateral action apart from the statutory bar-

gaining representative of their employees af-

fecting the working conditions of their em-

ployees, and in any other manner interfering

with, restraining or coercing their employees

in the exercise of the rights of self-organiza-

wae,

The order also requires petitioners to cease and

desist from refusing to bargain with the Union

upon request, and affirmatively, to bargain when

requested to do so (tbid.).

C. The decision of the court below

Upon proceedings to enforce the Board’s order,

the court below granted enforcement in full. It

agreed with the Board that petitioners had by their

anti-union activities prior to the filing of the orig-

inal charge engaged in unfair labor practices in

violation of Section 8(a)(1) and (5) of the Act

and, further, that petitioners had continued to

engage in similar misconduct after the filing of

that charge (R. 413-415). The court rejected pe-

titioners’ contention that the limitations proviso to

Section 10(b) of the Act precluded the Board from

making any findings with respect to the unfair

labor practices occurring after the filing of the

original charge (September 28, 1949) and more

than six months prior to the filing of the amended

NT i es ag 2s

-

9

charge (April 2, 1951) (R. 414-415). The court

stated that ‘‘the complaint in this case could have

properly included the matters occurring subse-

quent to the filing of the charge, for the original

charge was of a continuing violation and the sub-

sequent acts were of the same class and were con-

tinuations of it and in pursuance of the same ob-

jects’ (R. 416). Relying upon this Court’s hold-

ing in National Licorice Co. v. National Labor Re-

lations Board, 309 U.S. 350, 369, ‘‘that the Board

was empowered to redress ‘unfair labor practices

which are related to those alleged in the charge and

which grow out of them while the proceeding is

pending before the Board,’ ’’ the court below con-

cluded that the ‘‘amendment to the Act does not

change that holding”’ (ibid.).

Alternatively, the court held that since the

‘Camended charge alleged acts and conduct similar

to those complained of in the original charge

* * * Tit was] a verbatim restatement of the orig-

inalcharge * * * extended ‘to the date hereof’ ”’

(R. 415). Applying the settled rule that a charge

is not a pleading, but ‘‘merely sets the Board’s

investigatory powers in motion,’’ the court held

that Section 10(b) permits inclusion within the

complaint of amended charges—filed after the six-

month limitation period—which ‘‘relate back’’ to

or ‘‘define more precisely”’ the charges enumerated

within the original and timely charge (R. 415-416).

The court noted that in this respect its decision

differed from that of the Court of Appeals for the

Seventh Circuit in Indiana Metal Products Corp.

10

v. National Labor Relations Board, 202 F. 2d 613,

619 (R. 415, n. 5).

ARGUMENT

The Board concedes that the ruling below, in

sustaining the Board’s power to make findings with

respect to the unfair labor practices committed

after the filing of the original charge and more than

six months prior to the filing of the amended

charge, is in conflict with the decision of the Court

of Appeals for the Seventh Circuit in the Indiana

Metal case. Although since the enactment of the

limitations proviso to Section 10(b) the precise

point presented here has been urged before the

courts only in these two cases,*® the issue is a re-

curring one before the Board and hence of im-

portance in the administration of the Act. Never-

theless, the Board believes that the instant case

is inappropriate for the resolution of this question

and that the writ should therefore be denied.

For even if the decision below were incorrect on

the ‘‘narrow ground”’ (Pet. 5) petitioners urge, the

validity of the Board’s order as enforced by the

court below would remain unimpaired. The

Board’s findings, approved by the court below,

3In National Labor Relations Board v. Harris, 200 F. 2d

656, 658 (C.A. 5) the court raised the question sua sponte and

resolved it in accord with the decision below. In Gaynor

News Co. v. National Labor Relations Board, pending reargu-

ment, No. 7, this Term, a related question is presented, namely,

whether the General Counsel of the Board, consistent with the

limitations proviso, may, upon a charge filed by an employee

alleging unlawful employer discrimination against him, prop-

erly include in the complaint other employees on whose behalf

no charges have been filed but who are in a situation similar

to that of the charging employee.

11

with respect to the unfair labor practices com-

mitted by petitioners within the six months prior

to the filing of the original charge and within the

six months prior to the filing of the amended charge

fully suffice, we believe, to support the order in its

entirety without regard to those findings based

upon conduct which may be affected by the limita-

tions proviso. Indeed, the major portion of peti-

tioners’ acts and statements found to be violative

of_the statute occurred immediately prior to the

filing of the origina] charge. As the Board found

(supra, pp. 2-5, 7), within the six months prior

to the filing of the original charge, petitioners,

in violation of the Act, refused to bargain col-

lectively with the Union which a majority of the

employees had chosen as their bargaining repre-

sentative ; interrogated employees concerning their

union activities; threatened economic reprisals if

the Union was successful; promised economic

benefits to the employees in order to keep the Union

out of the plant; and after the Union’s request for

bargaining, unilaterally instituted changes in

employment conditions. Within the six months

prior to the filing of the amended charge peti-

tioners, again acting unilaterally, put into effect a

general wage increase (supra, p. 6).

Except for a passing challenge to the ‘‘factual

foundation” for these findings (Pet. 9), petitioners

; do not, and indeed could not, question that these

unfair labor practices alone, which were timely

charged, constitute sufficient support for the

SR G3 CRE ca FEELERS SIE IM

12

Board’s order in its entirety.‘ The unfair labor

practices which occurred after the filing of the

original charge and more than six months prior

to the filing of the amended charge were merely

cumulative or, as the court below observed (R.

416), of the ‘‘same class’’ and ‘‘continuations’’ of

the unfair labor practices which were timely

averred in the original charge. And, we think, it

can be fairly implied from the decisions below (R.

67a-69a, Ta, 414, 416), that both the Board and the

Court of Appeals were of the view that the unfair

labor practices timely charged by the original and

amended charges alone constituted sufficient bases

for the order issued by the Board and enforced by

the court below.’ Thus, the court below, making :

it clear that petitioners had committed all of the Hl

Dy Lk CRETE CRUEL

* Franks Bros. Co. v. National Labor Relations Board, 321

U.S. 702, 704-705; May Dept. Stores Co. vy. National Labor Re-

lations Board, 326 U.S. 376, 385; Medo Photo Supply Corp. v.

National Labor Relations Board, 321 U.S. 678, 686; Joy Silk

Mills, Inc.. v. National Labor Relations Board, 185 F. 2d 732,

739 (C.A.D.C.), certiorari denied, 341 U.S. 914; Oughton v. Na-

tional Labor Relations Board, 118 F. 2d 486, 498-499 (C.A. 3);

National Labor Relations Board vy. Van Kleeck, 189 F. 2d 516,

517 (C.A. 2).

5 To uphold a Board order it is not necessary, of course, for

a reviewing court to sustain each and every one of the Board's

subsidiary findings. It is enough if the findings which are 4

sustained afford an otherwise adequate basis for the order in x

its entirety. National Labor Relations Board v. Newport 5

News Shipbuilding & Dry Dock Co., 308 U.S. 241, 247; Na- &

tional Labor Relations Board v. M. A. Hanna Co., 125 F. 2d

786, 789 (C.A. 6); National Labor Relations Board v. Yale &

Towne Mfg. Co., 114 F. 2d 376, 379 (C.A. 2); D. H. Holmes

Co. v. National Labor Relations Board, 179 F. 2d 876, 879- »

880 (C.A. 5); National Labor Relations Board v. Minnesota d

Mining and Mfg. Co., 179 F. 2d 323, 326 (C.A. 8); National ie

Labor Relations Board v. Reed & Prince Mfg. Co., decided

June 9, 1953, 32 IRRM 2225, 2232 (C.A. 1).

WATE ONES ERIE

13

unfair labor practices in question prior to the orig-

inal charge, declared (R. 414):

* * * The record here is replete with sub-

stantial evidence to support the finding of a

lack of bona fide doubt lof the Union’s ma-

jority]. The time gained by the insistence

upon an election was immediately put to use

by Epstein to undermine the union. Em-

ployees were threatened with economic re-

prisals, interrogated concerning the union ac-

tivity, solicited to report union affairs and

sentiments, importuned to induce other em-

ployees to abandon the union, and promised

and granted economic benefits. After the un-

fair labor practice charge was filed, the con-

duct was continued * * *, [Emphasis added. ]

The question of which petitioners seek review, af-

fecting only the continuation of these practices,

would, however answered, leave the Board’s order

intact. The Court, in short, would be unlikely to

reach the question as to which a conflict is pre-

sented.

OF AEE PELE BRE i ARR:

14

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied,

Roserr L, STERN,

Acting Solicitor General.

Gerorak J. Bort,

General Counsel,

Davip P. Funviina,

Associate General Counsel,

Dominick L. MANOLA,

Assistant General Counsel,

Harvey B. Diamonp,

Attorney,

National Labor Relations Board.

Avavust, 1953.

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15

APPENDIX

The relevant provisions of the National Labor

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

Supp. V, 151, e¢ seq.), are as follows:

SP eee. ee

a

Mase cacnV SEAS

—"

49;

Riauts 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 other concerted activities for

the purpose of collective bargaining or other

mutual aid or protection, and shall also have

the right to refrain from any or all of such ac-

tivities except to the extent that such right may

be affected by an agreement requiring mem-

bership in a labor organization as a condition

of employment as authorized in section 8

(a) (3).

Unrarr LABOR PRACTICES

Section 8 (a) It shall be an unfair labor

practice for an employer—

(1) To interfere with, restrain, or coerce

employees in the exercise of the rights guar-

anteed in section 7;

* = * * ”

(5) to refuse to bargain collectively with

the representatives of his employees, sub-

ject to the provisions of section 9(a).

os * * * *

eS Le ae ee

16

PREVENTION OF UNFAIR LABOR PRACTICES

Sec. 10.

* * * * *

(b) Whenever it is charged that any person

has engaged in or is engaging in any such

unfair labor practice, the Board, or any agent

or agency designated by the Board for such

purposes, shall have power to issue and cause

to be served upon such person a complaint

stating the charges in that respect, and con-

taining a notice of hearing before the Board

or a member thereof, or before a designated

agent or agency, at a place therein fixed, not

less than fjye days after the serving of said

complaint: Provided, That no complaint shall

issue based upon any unfair labor practice oc-

curring more than six months prior to the fil-

ing of the charge with the Board and the serv-

ice of a copy thereof upaqn the person against

whom such charge is made,\ unless the person

aggrieved thereby was prevented from filing

such charge by reason of service in the armed

forces, in which event the six-month period

shall be computed from the day of his dis-

charge. Any such complaint may be amended

by the member, agent, or agency conducting

the hearing or the Board in its discretion at

any time prior to the issuance of an order

based thereon. * * *

* U. S. GOVERNMENT PRINTING OFFICE: 1983 268728 222