Opposition Brief — Daboll v. National Labor Relations Board

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Statement:

I. The Board’s findings of fact, conclusions of

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CITATIONS

Cases:

Ray Brooks v. National Labor Relations Board,

ee: Tay WO TON 6 i aE ES.

Coca Cola Bottling Co., 110 NLRB No. 134, 35

SE SR eke Cl se Baca

International Brotherhood of Electrical Workers

v. National Labor Relations Board, 341 US.

“og RE Ne Saati Ma Seer a Saas EY

National Labor Relations Board v. Guy F. Atkin-

ON Si ee DU isk vs oh be ak be,

National Labor Relations Board v. Denver Bujild-

ing Council, 341 U.S. 675.............00c0005.

National Labor Relations Board v. Kobritz, 193 F.

sige nh Se PEO fe Reo e ONE ieee REMC TAT Gees

National Labor Relations Board v. National Gas

CG Bee We We SUR ei i ead ee.

National Labor Relations Board v. Pittsburgh

Steamship Company, 340 U.S. 498............

Radio Officers’ Union v. National Labor Relations

Pee OF CE Se

Statutes:

National Lebor Relations Act, as amended (61

Stat. 136, 29 U.S.C. 151, et seq.):

sc pte Re PEP OE Ee OE Oy wea etre

dhe tt he he ee Be ae ee ee

Statutes—Continued

Page

NOE cas dace da biker oe 12

| ISIE FELIS LE ATG IN Oat 14

MN NE oii cca ciic oss ee ecko. 14

ce. RELI SORE Ie AIRS. 14

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een cc, SERS RCE S ph aa srihgens a he 15

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—————

Gnthe Supreme Court of the Bnited States

OctToBER Term, 1954

No. 469

CuarRLes E. Dasoit, JR, AND OPERATIVE Puas-

TERERS’ AND CEMENT Masons’ INTERNATIONAL

Association, AFL, Locat Unron 797, PETITIONERS

Vv.

NationaL Lasor RELATIONS Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court below (Pet. App. A) is

reported at 216 F. 2d 143. The findings of fact,

conclusions of law, and order of the National Labor

Relations Board (R. 15-42, 44-53) are reported at

105 NLRB 311.

JURISDICTION

The judgment of the court below was entered on

September 17, 1954. The petition for certiorari

(1)

2

was filed on December 6, 1954. The jurisdiction of

this Court is invoked under 28 U. 8S. ©. 1254, and

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

as amended.

QUESTIONS PRESENTED

1. Whether the Board properly asserted juris-

diction over petitioners.

2. Whether the Board’s findings that petitioners,

in violation of the Act, discriminated against job

applicants pursuant to an illegal hiring agreement

are supported by substantial evidence on the record

considered as a whole.

3. Whether the immunity provided in Section

102 of the Act for the performances of any obliga-

tion under a collective bargaining agreement en-

tered into prior to the date of the enactment of the

amended Act extends to an agreement entered into

in 1952 between the union and the petitioner em-

ployer, which adopted the terms of a pre-amended

Act contract between the union and other em-

ployers.

STATUTE INVOLVED

The pertinent provisions of the National Labor

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

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

pp. 12-17.

STATEMENT

I. The Board’s findings of fact, conclusions of law, and

order

A. Petitioner Daboll’s business.—Petitioner Da-

boli is a plastering contractor. During the year

1952 (the period here involved) Daboll operated

ee

3

simultaneously in the States of Nevada and Cali-

fornia (R. 18-19; 94, 77, 371-372). He performed

services in California, for which he received in that

year more than $27,000, and services in Nevada

amounting to $323,000, almost all of which was

performed on the Federal Homes housing develop-

ment in Henderson, near Las Vegas, Nevada (R.

18-19, 21; 94, 371, 372). During the same period,

materials valued at more than $77,000 were shipped

from California to Daboll’s Nevada operations (R.

18-19; 97, 391, 422-423).

B. The unfair labor practices—On December

20, 1951, Daboll entered into a contract with Fed-

eral Homes to plaster 352 residential housing units

(R. 18; 321). Daboll had no individual contract

with petitioner Union. In J anuary 1952, prior to

commencing operations at the project, Daboll and

the Union agreed to adopt and be bound by a mas-

ter contract entered into between other contractors

in the Nevada area and the Union on J anuary 1,

1951 (R. 22; 103-107). Under the terms of this

contract, the contractors undertook to ‘require

that all Plasterers on the job shall be members in

good standing”’ of the Union, while the Union on

its part agreed to furnish competent men. The

agreement further provided that if the Union was

unable to furnish men within a stipulated period,

“‘the employer shall be free to request men himself

through other local unions provided the employer

abides’’ by the constitutions of the local and the

International ‘‘and the men have clearances from

[petitioner] Local No. 797 before going to work”’

a

4

(R. 23; 105-106). Under the constitutions of the

International and the Local, union men are pro-

hibited from working with nonmembers (R. 285-

287).

The issuance of work clearances by the Union

was controlled by its Working Rules, which, ac-

cording to Business Agent Berry, were rigidly

enforced (R. 310-311). Section 16 of those rules

directs the business agent ‘‘not [to] issue a permit

to anyone not a member of Plasterers and Cement

Finishers without consent of the body at a regular

meeting when there are members of the craft in

question out of work’’ (R. 285).

In mid-September 1951, Clarence B. Sells and

Wesley Sinclair, both experienced plasterers but

members of another local, went together to the

office of petitioner Union to apply for work (R. 24;

153, 156, 215-217). Jerry Berry, the Union’s busi-

ness agent, told them that no plastering work was

available in the area (R. 24; 157-160, 218-219). In

the ensuing months, both employees kept in touch

with the Union in the hope of procuring work, but

each time Berry advised them that none was avail-

able (R. 24; 160-161, 187-191, 220-222).

On March 10, 1952, Sells and Sinclair went di-

rectly to Daboll’s Federal Homes project in search

of work. They sought out Fred Longstreet, Da-

boll’s foreman on the job (R. 24-25; 88, 90, 170,

227). Longstreet informed them that he needed

plasterers, that he could give them jobs “‘in a min-

ute’’ but that his hands ‘‘are tied.”’ He told them

to secure “‘clearance”’ from Berry, remarking that

—_

5

Berry was the ‘“‘boss’’ who ran things around the

project and if he hired anyone without prior clear-

ance from him the job would be “tied up” by a

work stoppage (R. 25; 171, 227-228).

Thereafter, on several occasions, Sells and Sin-

clair renewed their attempts to secure clearance

from Berry, but to no avail (R. 25, 26; 172-173,

175-177, 180-183, 228-229). On each occasion,

Berry informed them that no work was available

(ibid.).

On April 29, 1952, Sells in behalf of himself and

Sinclair filed unfair labor practice charges against

both the Union and Daboll (R. 26; 1-4, 183). Sub-

sequently, Sells and Sinclair saw Daboll and de-

scribed their inability to obtain employment with

his company (R. 26; 182-184, 230-231, 265-268).

Daboll replied, ‘‘ Well, personally I would give you

a job if I could. Up here I can’t do it. The union

* * * has got my hands tied” (R. 26 ; 184-185).

At the hearing before the Board, Union Business

Agent Berry testified that he had not referred Sells

and Sinclair to any plastering jobs because no such

jobs were open at any time when they were seeking

work (R. 28; 283, 293, 298-300). However, the

records of employment at Daboll in evidence estab-

lish that between March 5, 1952, and April 30, 1952,

the period here in question, Daboll himself, exclud-

ing other contractors in the area, hired at least 30

plasterers through the Union (R. 28; 331-348).

Berry also testified that in referring employees to

jobs, preference was given to permanent residents

of Las Vegas, practically all of whom are members

6

of petitioner local over ‘‘floaters’’ from out of town,

practically all of whom, like Sells and Sinclair, are

members of foreign locals (R. 28; 311-312, 323-

324).

C. The Board’s conclusions and order—The

Board concluded that Daboll was engaged in com-

merce within the meaning of the Act and that, in

view of the fact that he conducted a multi-state

enterprise or performed out-of-state services

valued in excess of $25,000, he satisfied the Board’s

administrative criteria for the exercise of its statu-

tory jurisdiction (R. 21, 45). The Board further

concluded that Daboll violated Section 8(a)(1)

and (3) of the Act by adopting, entering into, and

giving effect to an illegal union-security agreement

with the Union and by refusing to employ Sells and

Sinclair because they had not obtained work clear-

ances from the Union (R. 31-32). The Board also

concluded that the Union violated Section 8(b) (1)

(A) and (2) of the Act by executing and giving

effect to the illegal union-security agreement and

by causing Daboll illegally to refuse to employ Sells

and Sinclair (R. 31-32). The Board rejected peti-

tioners’ claim of immunity based upon Section 102

of the Act which provides that it shall not be an

unfair labor practice under the amended Act to

carry out ‘‘any obligation under a collective bar-

gaining agreement entered into prior to the date

of the enactment of this Act [June 23, 1947] if the

performance of such obligation would not have

constituted an unfair labor practice under Section

8(3) of the National Labor Relations Act prior to

7

the effective date of this title [August 22, 1947],

unless such agreement was renewed or extended

subsequent thereto.’’ Petitioners asserted that the

1951 agreement between the Union and the con-

tractors in the Nevada area, with which petitioner

Daboll agreed in 1952 to comply, was a continuation

of a 1946 agreement between the Union and the

Master Plumbers of Las Vegas, and hence within

the protection of Section 102. The Board rejected

this claim as unsupported by any reliable evidence ?

and for the further reason that, in any event,

Daboll did not become a party to the agreement

until 1952 (R. 29-30, 44-45), and therefore the con-

tract between him and the Union did not fall within

the exception of Section 102. Accordingly, the

Board ordered petitioners to cease and desist from

the unfair labor practices found; to jointly and

severally make Sells and Sinclair whole for any

loss of pay suffered by them as a result of the dis-

crimination against them; and to post appropriate

notices (R. 46-53).

II. The decision of the court below

The court below enforced the Board’s order

(Pet. App. 1-3). It upheld as proper the Board’s

exercise of jurisdiction over petitioners and af-

firmed as “‘clearly correct” the Board’s finding

that petitioners had engaged in unfair labor prac-

tices as set forth above. The court also rejected

1 The 1946 contract was not introduced in evidence. The

Board found that the credited testimony did not establish

that the 1951 agreement was a continuation of a contract

executed in 1946 (R. 30),

8

petitioners’ defense based upon Section 102, point-

ing out that even if the 1951 agreement between the

Union and the contractors in the Nevada area was

but a continuation of a 1946 agreement as con-

tended by petitioners, Daboll did not become a

party thereto until 1952 when the parties adopted

it ‘‘in an independent agreement”’ and that agree-

ment could not have ‘“‘such retroactive effect as to

bring it within the protection of § 102.”

ARGUMENT

Petitioners’ contention (Pet. 7-11) that the

Board in exercising its statutory jurisdiction in the

instant case misapplied or departed from its ad-

ministrative jurisdictional policy is insubstantial

and presents no question warranting certiorari.”

As the court below correctly held (Pet. App. 2),

since Daboll operated simultaneously in two states

during 1952, that sufficed to bring him within the

Board’s ‘‘multi-state” administrative criteria for

the exercise of its statutory power and petitioners

have made no showing that the Board exceeded the

permissible limits of its discretion in relying upon

this test here.* Furthermore, in view of the cir-

* The parenthetical suggestion in petitioners’ question No. 1

that Daboll’s operations are de minimis and hence do not fall

within the coverage of the Act overlooks the Court’s decisions

in International Brotherhood of Electrical Workers v. Na-

tional Labor Relations Board, 341 US. 694, 696, 699; and

National Labor Relations Board v. Denver Building Council,

341 U.S. 675, 683-685.

* Since the “multi-state” character of Daboll’s operations

alone suffices to bring Daboll within the Board’s administra-

tive criteria governing the exercise of its statutory jurisdiction,

9

cumstance that the administrative criteria relied

on by the Board were adopted prior to petitioners’

unfair labor practices, the court below also cor-

rectly ruled (Pet. App. 2) that petitioners cannot

validly claim that ‘the Board has acted in violation

of previously prescribed standards upon which

[petitioners] had a right to rely and the disregard

of which would lead to an injustice.”” Cf. National

Labor Relations Board v. Kobritz, 193 F. 2d 8, 13

(C. A. 1); National Labor Relations Board v. Guy

F. Atkinson Co., 195 F. 24 141, 144-150 (C. A. 9).*

it is unnecessary to deal with petitioners’ contention (Pet. 7-9)

that the record fails to establish that Daboll performed “out-

of-state” services in 1952 in California sufficient to satisfy

the Board’s out-of-state service criteria on which the Board

also relied, in the alternative, in exercising jurisdiction in the

instant case. In any event, even if, as petitioners assert, there

is no such showing with respect to California, it is clear that

while Daboll was still operating in that state, he performed

out-of-state services in 1952 in Nevada sufficient to satisfy the

Board’s administrative yardstick. From January to October

1952 Daboll performed services on the Federal Homes Project

in Nevada for which he received $323,000 (R. 371-372; supra,

p. 3). It is a fair inference that at least $25,000 worth of

these services were performed between January and June 1952,

during which time Daboll was stil] operating in California.

‘ National Labor Relations Board v. National Gas Co., 215

F. 2d 160 (C.A. 8), cited by petitioners (Pet. p. 10), is not

in point. There the court declined to enforce a Board order

because in its view the Board had subsequently “expressly

overruled” the decision in which the order had issued as an

“unwarranted extension” of its then controlling jurisdictional

policy. Although the Board has recently modified its juris-

dictional policy, and under its current policy might not now

assert jurisdiction over Daboll, there is no suggestion that it

has “overruled” the instant case as an “unwarranted exten-

sion” of the standards applicable when the case was decided.

See Coca Cola Bottling Co., 110 NLRB No. 134, 35 LRRM

1131. Cf. Ray Brooks v. National Labor Relations Board, No.

21, this Term, slip op. p. 8, n. 16.

10

Petitioners’ challenge (Pet. 12-15) to the sub-

stantiality of the evidence supporting the Board’s

unfair labor practice findings likewise raises no

issue warranting review by this Court. National

Labor Relations Board v. Pittsburgh Steamship

Company, 340 U. S. 498, 503. Moreover, as the

Statement shows (supra, pp. 3-6), and as the

court below found (Pet. App. 3), the Board’s find-

ing that petitioners entered into an illegal union

security agreement pursuant to which the two job

applicants were illegally denied employment ‘‘is

clearly correct.’’ See also Radio Officers’ Union v.

National Labor Relations Board, 347 U. S. 17.

Finally, contrary to petitioners’ assertion (Pet.

11-12), the court below correctly ruled that Section

102 of the Act afforded no defense to petitioners.

Even assuming that the 1951 contract between the

Union and the contractors in the Nevada area was

but a continuation of a 1946 contract, the terms of

that contract, as the court below pointed out (Pet.

App. 3), were adopted by petitioners in 1952 ‘‘in an

independent agreement which became the contract

of the parties as of that date. It could have no

retroactive effect as to bring it within the protec-

tion of § 102.”’

| ae

CONCLUSION

The decision below is correct and presents

neither a conflict of decisions nor any important

question warranting review. The petition for a

writ of certiorari should be denied.

Respectfully submitted,

Stmon E. Sopexorr,

Solicitor General.

Davip P. FInpiina,

Associate General Counsel,

Dominick L. Manoui,

Assistant General Counsel,

SAMUEL M. Singer,

Attorney,

National Labor Relations Board.

DECEMBER, 1954,

12

APPENDIX

The relevant provisions of the National Labor

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

151 et seq.), are as follows:

RIGHTS OF EMPLOYEES

Sro. 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 mu-

tual aid or protection, and shall also have the

right to refrain from any or all of such activi-

ties except to the extent that such right may be

affected by an agreement requiring member-

ship in a labor organization as a condition of

employment as authorized in section 8 (a) (3).

UNFAIR LABOR PRACTICES

Sec. 8. (a) Itshall be an unfair labor prac-

tice for an employer—

(1) tointerfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed

in section 7;

* * * * *

(3) by discrimination in regard to hire or

tenure of employment or any term or condi-

tion of employment to encourage or discourage

membership in any labor organization: Pro-

vided, That nothing in this Act, or in any

13

other statute of the United States, shall pre-

clude an employer from making an agreement

with a labor organization (not established,

maintained, or assisted by any action defined

in section 8 (a) of this Act as an unfair labor

practice) to require as a condition of employ-

ment membership therein on or after the thir-

tieth day following the beginning of such em-

ployment or the effective date of such agree-

ment, whichever is the later, (i) if such labor

organization is the representative of the em-

ployees as provided in section 9 (a), in the

appropriate collective-bargaining unit covered

by such agreement when made; and has at the

time the agreement was made or within the

preceding twelve months received from the

Board a notice of compliance with sections 9

(f), (g), (h), and (ii) unless following an elec-

tion held as provided in section 9 (e) within

one year preceding the effective date of such

agreement, the Board shall have certified that

at least a majority of the employes eligible to

vote in such election have voted to rescind the

authority of such labor organization to make

such an agreement ; Provided further, That no

employer shall justify any discrimination

against an employee for nonmembership in a

labor organization (A) if he has reasonable

grounds for believing that such membership

was not available to the employee on the same

terms and conditions generally applicable to

14

other members, or (B) if he has reasonable

grounds for believing that membership was

denied or terminated for reasons other than

the failure of the employee to tender the peri-

odic dues and the initiation fees uniformly re-

quired as a condition of acquiring or retaining

membership ;

* * & * *

(b) It shall be an unfair labor practice for a

labor organization or its agents—

(1) to restrain or coerce (A) employees in

the exercise of the rights guaranteed in section

7 : * & &

(2) to cause or attempt to cause an employer

to discriminate against an employee in viola-

tion of subsection (a) (3) or to discriminate

against an employer with respect to whom

membership in such organization has been de-

nied or terminated on some ground other than

his failure to tender the periodic dues and the

initiation fees uniformly required as a condi-

tion of acquiring or retaining membership;

* * * * *

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. This

power shall not be affected by any other means

15

of adjustment or prevention that has been or

may be established by agreement, law, or other-

wise: * * *

(c) * * * If upon the preponderance of the

testimony taken the Board shall be of the opin-

ion that any person named in the complaint has

engaged in or is engaging in any such unfair

labor practice, then the Board shall state its

findings of fact and shall issue and cause to be

served on such person an order requiring such

person to cease and desist from such unfair

labor practice, and to take such affirmative

action including reinstatement of employees

with or without back pay, as will effectuate the

policies of this Ae: **:*

(e) The Board shall have power to petition

any circuit court of appeals of the United

States (including the United States Court of

Appeals for the District of Columbia), or if all

the circuit courts of appeals to which applica-

tion may be made are in vacation, any district

court of the United States (including the Dis-

trict Court of the United States for the District

of Columbia), within any circuit or district,

respectively, wherein the unfair labor practice

in question occurred or wherein such person re-

sides or transacts business, for the enforcement

of such order and for appropriate temporary

relief or restraining order, and shall certify

and file in the court a transcript of the entire

record in the proceedings, including the plead-

ae

16

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 grant such

temporary relief or restraining order as it

deems just and proper, and to make and enter

upon the pleadings, testimony, and proceedings

set forth in such transcript a decree enforcing,

modifying, and enforcing as so modified, or

setting aside in whole or in part the order of

the Board. No objection that has not been

urged before the Board, its member, agent, or

agency, shall be considered by the court, unless

the failure or neglect to urge such objection

shall be excused because of extraordinary cir-

cumstances. The findings of the Board with

respect to questions of fact if supported by

substantial evidence on the record considered

as a whole shall be conclusive. * * * The ju-

risdiction of the court shall be exclusive and

its judgment and decree shall be final, except

that the same shall be subject to review by the

appropriate circuit court of appeals if appli-

cation was made to the district court as here-

inabove provided, and by the Supreme Court

of the United States upon writ of certiorari or

certification as provided in sections 239 and

17

240 of the Judicial Code, as amended (U.8.C.,

title 28, secs. 346 and 347).

* * * * *

Sec. 102. No provision of this title shall be

deemed to make an unfair labor practice any

act which was performed prior to the date of

the enactment of this Act which did not consti-

tute an unfair labor practice prior thereto,

and the provisions of section 8 (a) (3) and

section 8 (b) (2) of the National Labor Rela-

tions Act as amended by this title shall not

make an unfair labor practice the performance

of any obligation under a collective-bargaining

agreement entered into prior to the date of the

enactment of this Act * * * if the performance

of such obligation would not have constituted

an unfair labor practice under section 8 (3)

of the National Labor Relations Act prior to

the effective date of this title, unless such agree-

ment was renewed or extended subsequent

thereto.

Wo. 5. covennwent painting orrice: toss