Petition for Writ of Certiorari — Efco Manufacturing, Inc. v. National Labor Relations Board

ssetemeisnis oo pene

Supreme Court of the Anited States

Ocroser Term, 1956

no. 717

EFCO MANUFACTURING, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PZTITION FOR WEIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

Bensamin H. Dorsey

1700 K Street

Washington, D.C.

Attorney for Petitioner

Minton G. JonNson

Weiter, Reynoitps & JoHNsON

832 Industrial Bank Building

Providence, Rhode Island

Of Counsel

$d

Blanchard Printing Company, Boston, Mass.-- Law Printers

TABLE OF CONTENTS.

Page

Petition for Writ of Certiorari | 1

Opinion Below : oe Pee i.

Jurisdiction

Questions Presented | ee tie rity" 2

Statutes _. a ies 2

Statement ._. . 6

Reasons for Granting the w rit 12

Conclusion oe

Appendix A —Opinion of U. 8. Court of Appeals 19

TABLE OF CITATIONS.

Cases.

Aquwilines, Inc. vy. N. L. R. B., 87 F.2d 146 ee 12

Arcadia Hosiery, Subin d.b.a., 112 F.2d 326 15

Columbia Pictures Corp., 82 N.L.R.B. 845. 15

Efco Mfq., Inc., 100 N.L.R.B. 423 6

Efco Mfg., Inc., 108 N.L.R.B. 245 pr aee ae

Efco Mfg., Inc., 111 N.L.R.B. No. 182 7

Gooding v. W itera, 209 F.2d 913 eos 14

Ideal Laundry & Dry Cleaners, 55 N.L.R. B. 25 15

Leister-Kaufman Aircraft Corporation, 63 N.L.R.B.

1367, No. 209 Try EE a

N.L.R.B.v Efco Mfg., tie: 203 F.2d 458... 6

NL. R. B.v. Efco Mfg., Inc., 227 F.2d 675 oe

N. L. R. B. vy. National Plastics Products Co., 175 F.2d

788. 5 13

N. L.-R. B. v. Hienie C want: Cowper C orp., 316 US.

105; 5 Labor Cases 51,1401... 17

N. L. R. B. v. Pittsburgh Steamship Co., 340 U. S. 498 13

f =Pugh & Barr, Inc., 207 F.2d 409 15

| Subin d.b.a. Arcadia Hosiery, 112 F.2d 326 15

| Union Buffalo Mills, 58 N.L.R.B. 384... a 15

U.S. Steel Co. v. N. L. R. B., 196 F.2d 459 | ee 14

ii Table of Contents.

Statutes and Other Authorities.

Page

Administrative Procedure Act ete j,i a

Conference Report, House Report 510. 80th Congress,

pp. 55-56 . cli Poeun 17

Evening Bulletin ie ane e oo a

Federal Administrative ashore Act Sighs: a ee

House Conference Committee Report, 1947 Act. —_.._—:16

Labor Management Relations Act x 2

National Labor Relations Act te 11, 16,17

Providence Journal —. _ 10,11, 15

5 U.S. C. Sections 1006 and 1007 6

5 U.S. C. Seetion 1007 (b) 5

5 U.S. C. Section 1009 (e) . ; 5

28 U.S. C. Section 1254 (1)... : oe 1,5

29 U.S. C. Section 158 (a) (1) or (2) My 3

29 U.S.C. Section 160 (ce)... an

29 U.S. C. Section 160 (c) and (e) 2

Supreme Court of the Gnited States

Octroper Term, 1956

No.

EFCO MANUFACTURING, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT.

Petitioner prays that a Writ of Certiorari issue to review

the decree of the United States Court of Appeals for the

First Cireuit entered in the above-entitled case on December

13, 1955.

Opinion Below

The opinion of the Court of Appeals printed in Appendix

A hereto infra p. 19, is reported in 227 F.2d 675.

Jurisdiction

The deerce of the Court of Appeals was entered December

13, 1955. The jurisdiction of this Court is invoked under

28 U.S. C. A. Seetion 1254 (1).

Questions Presented

1. Whether there was substantial evidence on the record

considered as a whole supporting the amounts of back-pay

awarded to two of the Petitioner’s employees.

9. Whether the standard for evaluating conflicts of evi-

dence was mis-apprehended or grossly mis-applied by the

Court of Appeals in finding that there was substantial

evidence supporting the amounts of back-pay awards to

two of the petitioner’s employees.

3. Whether the determination of an amount of back-pay

due an employee under the Labor Management Relations

Act must be supported by a preponderance of affirmative

evidence.

Statutes

The statutes involved are: 29 U. S. C. Section 160 (c)

and (e)

(c) The testimony taken by such member, agent, or

agency or the Board shall be reduced to writing and filed

with the Board. Thereafter, in its discretion, the Board

upon netice may take further testimony or hear argument.

If upon the preponderance of the testimony taken the

Board shall be of the opinion 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 shal] 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

hack pay as will effectuate the policies of this subchapter:

Provided, that where an order directs reinstatement of an

employee, back pay may be required of the employer or

labor organization, as the case may be responsible for the

3

discrimination suffered by him: And provided further, That

in determining whether a complaint shall issue alleging a

violation of subsection (a) (1) or (a) (2) of section 158 of

this title, and in deciding such cases, the same regulations

and rules of decision shall apply irrespective of whether

or not the labor organization affected is affiliated with a

labor organization national or international in scope. Such

order may further require such person to make reports

from time to time showing the extent to which it has com-

plied with the order. If upon the preponderance of the

testimony taken the Board shall not be of the opinion that

the 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 an order

dismissing the said complaint. No order of the Board shall

require the reinstatement of any individual as an employee

who has been suspended or discharged, or the payment to

him of any back pay, if such individual was suspended or

discharged for cause. In case the evidence is presented

bef-re a member of the Board, or before an examiner or

examiners thereof, such member, or such examiner or ex-

aminers as the case may be, shall issue and cause to be

served on the parties to the proceeding a proposed report,

together with a recommended order, which shall be filed

with the Board, and if no exceptions are filed within twenty

days after service thereof upon such parties, or within such

further period as the Board may authorize, such recom-

mended order shall become the order of the Board and

become effective as therein prescribed.

(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 United States courts of appeals to which applica-

tion may we made are in vacation, any district court of the

United States (including the District Court of the United

4

States for the District of Columbia), within any circuit or

distriét, respectively, wherein the unfair labor practice in

question occurred or wherein such person resides or trans-

acts 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 pleadings 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, testi-

mony, 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 objec-

tion 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 circumstances. The find-

ings of the Board with respect to questions of fact if sup-

ported by substantial evidence on the record considered

as a whole shall be conclusive. If either party shall apply

to the court for leave to adduce additional evidence and

shall show to the satisfaction of the court that such addi-

tional evidence is material and that there were reasonable

grounds for the failure to adduce such evidence in the

hearing before the Board, its member, agent, or agency,

the court may order such additional evidence to be taken

before the Board, its members, agent, or agency, and to be

made a part of the transcript. The Board may modify its

findings as to the facts, or make new findings, by reason

of additional evidence so taken and filed, and it shall file

such modified or new findings, which findings with respect

5

to questions of fact if supported by substantial evidence

on the record considered as a whole shall be conclusive, and

shall file its recommendations, if any, for the modification

or setting aside of its original order. The jurisdiction 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 cireuit court of appeals if

application was made to the district court as hereinabove

provided, and by the Supreme Court of the United States

upon writ of certiorari or certification as provided in sec-

tion 1254 of Title 28.

Also involved is 5 U.S. C. Sections 1007 (b) and 1009 (e)

1007 (b) Prior to each recommended, initial, or tentative

decision, or decision upon agency review of the decision

of subordinate officers the parties shall be afforded a reason-

able opportunity to submit for the consideration of the

officers participating in such decisions (1) proposed find-

ings and conclusions, or (2) exceptions to the decisions

or recommended decisions of subordinate officers or to

tentative agency decisions, and (3) supporting reasons for

such exceptions or proposed findings or conclusions. The

record shall show the ruling upon each such finding, con-

clusion, or exception presented. All decisions (including

initial, recommended, or tentative decisions) shall become

part of the record and include a statement of (1) findings

and conclusions, as well as the reasons or basis therefor,

upon all the material issues of fact, law, or discretion

presented on the record; and (2) the appropriate rule,

order, sanction, relief or denial thereof.

1009 (e) So far as necessary to decision and where

presented the reviewing court shall decide all relevant ques-

tions of law, interpret, constitutional and statutory provi-

sions, and determine the meaning or applicability of the

terms of any agency action. It shall (A) compel agency

action unlawfully withheld or unreasonably delayed; and

(B) hold unlawful and set aside agency action, findings,

and conclusions found to be (1) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law; (2) contrary to constitutional right, power, privilege,

or immunity; (3) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right; (4)

without observance of procedure required by law; (5) un-

supported by substantial evidence in any case subject to

the requirements of sections 1006 and 1007 of this title

or otherwise reviewed on the record of an agency hearing

provided by statute; or (6) unwarranted by the facts to

the extent that the facts are subject to trial de novo by

the reviewing court. In making the foregoing determina-

tions the court shall review the whole record or such

portions thereof as may be cited by any party, and due

account shall be taken of the rule of prejudicial error.

Statement

On January 5, 1952 the National Labor Relation’s Board

certified the United Steelworkers of America, C.1.O. as

bargaining representative for approximately 50 of peti-

tioner’s production workers at a smal] machine tool shop

in the town of East Greenwich, Rhode Island. Seeking a

court review of this certification, the petitioner declined to

bargain with the certified union. After hearing, on July 31,

1952, The National Labor Relations ordered the petitioner

to bargain with The Steelworkers (100 N.L.R.B. 423). This

order was enforced by the Court of Appeals for the First

Cireuit by decree entered April 22, 1953. (N.L.R.B. v. Efco

Mfg. Intc., 203 F.2d 458)

On April 14, 1952, while proceedings to enforce the bar-

gaining rights were pending before the National Labor

7

Relations Board and before its order to bargain had issued

and of course before the Court of Appeals had ruled on the

issue of representation some of the employee’s in the bar-

gain unit went on strike.

In August 1952 the union called off the strike. After

that date all but three of the returning strikers who applied

for reinstatemeat were eventually put back to work (the

Board held that reinstatement of some of them was wrong-

fully delayed). Donald Fulford and Charles Arnold were

denied reinstatement on account of gross misbehavior dur-

ing the strike and James Cummisky was not offered re-

instatement, the petitioner believing that Cummisky was

going into the Army and did not wish to come back to work.

On April 15, 1954, after a hearing on the question of

reinstatement rights, the National Labor Relations Board

upheld the petitioner’s refusal to reinstate Donald Fulford,

while ordering reinstatement of Cummisky and Arnold.

(108 N.L.R.B. 245.) After a Supplemental Hearing the

board ordered that petitioner pay $1995.59 to Arnold and

$1473.58 to Cummiskey as wages lost for the periods during

which they had been denied reinstatement. (111 N.L.R.B.

No. 182.)

Seeking a review of this order the petitioner declined to

comply with it and The National Labor Relations Board

petitioned the Court of Appeals for the First Cireuit for a

decree enforcing the back pay order.

Before the Court of Appeals petitioner urged that en-

forcement of the order denied as to Arnold because of

(1) his gross mis-behavior during the strike and notwith-

standing a decision on that point that (2) there was no

substantial evidence to support the Board’s findings as to

the amount of Arnold’s interim earnings; that (3) as to

Cummiskey the preponderance of evidence warranted a

finding that he had voluntarily removed himself from the

8

labor market and had thus disqualified himself for consider-

ation for back pay relief.

The arbitrary nature of the Board’s findings in support

of its decision and order with regard to back-pay for

Arnold was alleged in the Court of Appeals. It was urged

that the findings were based solely on Arnold’s testimony

which was unreliable. He had claimed that his only record

of income and expenditures during the interim was kept

on the back of a calendar (R.A. 159a-160a) which he de-

stroyed (R.A. 159a-160a) at a time when he knew the

question of his right to back pay in whatever amount was

pending. (R.A. 165a-166a).

Petitioner contended that had the National Labor Rela-

tions Board given proper weight to other testimony by

disinterested witnesses it would have decided that Arnold

earned more at his interim employment than he would have

had he been duly reinstated to his employment with the

petitioner. (While Arnold stated that he earned an average

of $40 per week (R.A. 162a) two Rhode Island Conservation

officers each said that Arnold undoubtedly earned at least

$25 a day (R.A. 189a-226a).)

The petitioner contended that the findings of the Trial

Examiner which were adopted by the Beard were superficial

and unrealistic and not in keeping with the preponderance

of the evidence as reflected in the following excerpt from

his report. (R.A. 261a) Furthermore it is wholly unfair as

a restatement of the Company’s presentation.

Respondent contends that because Arnold fished in

polluted waters his earnings were many times $40 a

week and because of this conduct his testimony is

unworthy of belief. The undersigned rejects these

contentions. There is no evidence that Arnold’s esti-

mate of his earnings rid not include his earnings, if

any, from shellfishing in polluted waters. The pre-

9

sumption from this record is that the $40-a-week figure

includes such earnings. A presumption that because

Arnold fished in polluted areas he did not teli the truth

under oath is not warranted.

Nowhere in the Supplemental Report is reference made

to the overwhelmingly contradictory evidence of the Con-

servation officers except obliquely in the following state-

ment. Summarizing his conclusions the Trial Examiner

said (R.A. 261a-262a)

‘*Because the facts are peculiarly within Arnold’s

possession it is difficult for Respondent to attack the

facts as to the amount of money Arnold realized from

his business venture. Respondent, nevertheless, en-

deavored to establish that $40 per week is a conserva-

tive estimate and that in fact Arnold realized more than

that sum. From the evidence adduced it can be sur-

mised and guessed that such may be the situation but

such evidence does not warrant findings to this effect.

Furthermore, Respondent offered no evidence in con-

tradiction of Arnold and no competent evidence on

which it can be estimated how much money Arnold

realized if he did, in fact, average more than $40 per

week.

On the basis of his observations of witnesses and the

record herein the undersigned credits Arnold’s testi-

mony and finds that his net earnings accruing from his

self employment approximated $40 per week’’.

To the Trial Examiner whose findings of fact and con-

clusions were adopted without modification by the National

Labor Relations Board and in the Court of Appeals, the

petitioner contended that where Arnold’s testimony was

contradicted by two independent witnesses and was other-

10

wise uncorroborated, it should have been rejected. He had

been convicted of shellfishing in polluted waters. On other

occasions he had been observed shellfishing in waters con-

taminated daily by thousands of gallons of raw sewage;

(R.A. 192a-197a) ; that the conflict of evidence should have

been resolved in favor of the Conservation officers whose

testimony was more worthy of belief than that of Arnold

whose illegal conduct and irresponsible disregard for the

health and welfare of others had been observed by each of

them.

At the Supplemental Hearing and in the Court of Ap-

peals, the petitioner contended that Cummiskey should not

have been awarded back-pay in any amount because he had

voluntarily removed himself from the labor market.

It was shown that from September 3, 1952 to March 16,

1953, the critical period for which the Board has ordered

the Petitioner to pay Cummiskey $1,473.58 he earned not so

much as $1 (R.A. 129a-131la). His efforts to seek employ-

ment were confined to making three or more calls at the

employment offices of two companies. At each of them on

the first call he was informed that no jobs were available.

Subsequent calls yielded the same information (R.A. 131a-

136a).

It was proved that the best sources of information on em-

ployment opportunities were the ‘‘ Providence Journal’’ and

‘‘Evening Bulletin:’’ two newspapers published in Provi-

dence, Rhode Island and circulated daily throughout the

State, that advertising in these two publications was a

common and popular manner for employers to seek help;

that during the period in question advertisements for many

jobs of the sort that Cummiskey was qualified to perform

appeared in the ‘‘Providence Journal.’’ (R.A. 275a-296a.)

During the entire period, he did not once examine the help-

wanted columns in either of these newspapers. He knew

that both newspapers were on sale daily at a store in his

11

neighborhood but did not go there because as he said;

‘‘Maybe I didn’t want to take the walk for two miles.”’’

(R.A. p. 138a.)

On these facts the petitioner contended at the Supple-

mental Hearing and to the Court of Appeals that Cummis-

key had failed to exercise reasonable diligence in an effort

to obtain alternative employment for the critical period.

On that account and in accordance with principles well

established by the Board in its administration of the Na-

tional Labor Relations Act, Cummiskey had disqualified

himself from consideration for back pay relief. Following

is an excerpt from the Trial Examiners findings and con-

clusions that Cummiskey had no duty to examine the best

source of employment opportunities in the State of his

residence. (R.A. 265a-266a. )

‘During the period of time involved herein the

Providence, Rhode Island, newspapers carried help

wanted advertisements. Nevertheless, Cummiskey did

not avail himself of the opportunities afforded by these

advertisements. He testified that he did not normally

receive these newspapers, that he would have had to

walk 2 miles to get them and that the reason he did not

get them was ‘‘maybe I didn’t want to take the walk

for 2 miles’’. He further testified he did examine the

classified advertisements in the local newspaper—a

weekly published under the name of Wickford Standard

—but did not find any ‘‘help ads’’ that he ‘‘followed

up.’’ There is no evidence that the advertisements in

this newspaper sought persons having the background

and experience which Cummiskey possessed.

Respondent contends that instead of repeated visits

to Chandler-Evans and to Allenton Mills, Cummiskey

should have sought more fertile territory, that Cum-

miskey should have capitalized upon the opportunities

12

afforded by the classified advertisements in the Provi-

dence newspapers, and that Cummiskey’s failure to do

these things amounts to a lack of diligence to find em-

ployment. While a more prudent person might have

done these things, the undersigned cannot, in the light

of this record as outlined in this Report, conclude that

Cummiskey failed to use diligence. Bearing in mind

Cummiskey’s age and draft status, Cummiskey’s exper-

iences at Chandler-Evans because of his draft status;

Cummiskey’s registration with the state unemployment

office and Cummiskey’s individual efforts to get work,

including his search through local newspapers, the un-

dersigned believes that Cummiskey made reasonable

efforts to secure desirable employment.’’

It should be noted that there was no proof nor finding

that the local weekly newspaper which Cummiskey said he

looked at was an acceptable source of employment oppor-

tunities.

Reasons for Granting the Writ

A back-pay award authorized by 29 U.S. C. Section 160(c)

is not a penalty nor is it a private award for damages. It

is a public reparation order to remedy an unfair labor

practice from the beginning. Agwilines, Inc. v. N.L.R.B.,

87 F.2d 146. As such it may not do more than make whole

an employee for loss of wages which he would have earned

had he not been wrongfully denied employment.

the authority in the National Labor Relations Board

to make back pay awards is limited by Title 29, Section

160 (c) to the requirement that the amount awarded in

reparation be determined by a ‘‘preponderance of the ev-

idence taken by the Board’’ (p. 2 supra where Section

160 (ce) is quoted in full text.) That this limitation must

13

be read into the back pay authority of the Board is sup-

ported by the provisions of the Federal Administrative

Procedure Act (29 U.S.C. Section 1009 (e) ) where it is

provided that the court reviewing the action of a federal

agency shall ‘‘... hold unlawful and set aside agency action,

findings and conclusions found to be . . . (5) unsupported

by substantial evidence in any case subject to the require-

ments of Sections 1006 and 1007 of this title or otherwise

reviewed on the record of an agency hearing provided by

statute.’’

There can be no question that the quoted portion of

Section 1009 (e) applies to a review of back pay proceed-

ings, (See N.L.R.B. v. National Plastics Products Co., 175

F.2d 755) and that an award of back pay must, among

other things required by the Administrative Procedure Act,

be supported by ‘‘substantial’’ evidence.

In the case of Charles Arnold the evidence supporting

the award of $1995.59 as in reparation for lost wages is

not preponderant nor is it substantial. The petitioner con-

tends that the National Labor Relations Board in awarding

back pay to Arnold and the Court of Appeals in its decree

confirming the Board’s order either misapprehended the

standard for evaluating the conflict of evidence bearing

on the question of whether or not Arnold suffered a loss

of wages in the critical period or arbitrarily failed to apply

the proper standard. In N.L.R.B. v. Pittsburgh Steamship

Co., 340 U.S. 498 this court has indicated that it will

intervene in such a case as is here presented.

The evidence to support the Board’s order in Arnold’s

case is limited exclusively to his own testimony which is

in direct conflict with other evidence. If the affirmative

evidence must ‘‘preponderate’’ there is presented a plain

case of an arbitrary ruling. If it must be ‘‘substantial’’

the several definitions of that term require a similar con-

clusion. From the whole record it will appear that there

14

is not a single item of independent evidence to corroborate

Arnold’s story that his earnings averaged $8 to $10 a day,

or to override the contradictory evidence of the Conserva-

tion Officers that he earned at least $25 a day as a shellfisher-

man. He had no records. He called no dealer to whom he

sold his shellfish. He called no fellow worker. In Cooding

v. Willard, 209 F.2d 913 the definition of substantial ev-

idence indicates that this state of the record will not sup-

port the Board’s acceptance of Arnold’s story and entry

of an order thereon. There it was said that ‘‘the ‘substantial

evidence’ supporting administrative findings of fact, such

as will require courts to accept and give effect to such find-

ings, means more than evidence, which considered alone,

would be sufficiently persuasive to induce the trier of fact

to give it the credence and weight essential to support

findings, and must have those characteristics to such extent

that, in the setting made by entire record, trier may rea-

sonably find in accordance with it after giving due con-

sideration to whatever else is shown both in opposition

or in accord.’’ When the record before a reviewing court

clearly precludes the Board’s decision from being justified

by a fair estimate of the worth of testimony of witnesses,

the decision must be set aside. U. S. Steel Co. v. N.L.R.B.,

196 F.2d 459.

Unlike the evidence in regard to Arnold, the question

of Cummiskey’s right to back pay is based on a state of

facts as to which there is no dispute. The record discloses

that the National Labor Relations Board found that an able

bodied young man. who was subsequently accepted as a

paratrooper in the armed forces of the United States

(R. A. 129a) was able to earn not $1 in a period of more

than five months; that each day during that period the

Providence Journal carried advertisements offering from

70-90 miscellaneous kinds of employment (R.A. 287a) in

Rhode Island plants (R.A. 292a-295a). Not once during

15

that period did Cummiskey think it advisable-to go into

the Town of Wickford, 2 miles from his home to get the

Providence Journal and look at these advertisements of

employment opportunities (R.A. 142a). |

The petitioner contends that these facts require a con-

elusive presumption that Cummiskey voluntarily removed

himself from the labor market. The Board has consistently

denied back pay to an individual who makes no effort to

seek other employment. See Ideal Laundry & Dry Cleaners,

55 N.L.R.B. 845; Columbia Pictures Corp., 82 N.L.R.B. 845.

Cummiskey registered with the U. S. Employment Serv-

ice and there is some arthority to the effect that this is

sufficient compliance with the requirement that the indi-

vidual seek other employment. Union Buffalo Mills, 58

N.L.R.B. 354. Recently when the question was raised in

the Court of Appeals for the Fourth Circuit, this concept

was rejected. In Pugh & Barr Inc., 207 F.2d 409 the court

remanded the matter for further proceedings by the Board

saying that registration with the employment service was

not sufficient, some ‘‘further showing of diligence’’ being

held to be necessary.

The petitioner contends that there is no substantial ev-

idence of a reasonably diligent effort by Cummiskey to seek

alternative employment. Repeated visits to a fruitless

source will not satisfy the requirement. See Leister-

Kaufman Aircraft Corporation, 63 N.L.R.B. 1367 No. 209.

In this instance the wilful avoidance of the newspaper a

primary source of employment opportunities should be

grounds for concluding that Cummiskey did not want a

job. He was content to work in the family garden (R.A.

142a) and await his call to the Armed Forces.

On this, the only reasonable interpretation of the facts

back pay should have been denied as it was in Subim, d.b.a.

Arcadia Hosiery, 112 F.2d 326 for the individual there who

was content to devote his time to family duties.

16

By the 1947 amendments of the National Labor Relations

Act the duties and prerogatives of courts reviewing Board

actions were enlarged. It appears that Congress intended to

restore to the reviewing courts the previously ‘‘abdicated”’

to examine into the evidentiary basis for Board decisions.

This appears plainly in the House Conference Committee

Report on the 1947 Act where it is said:

‘*The Senate amendment provided that the Board’s

findings with respect to questions of fact should be

conclusive if supported by substantial evidence on the

record considered as a whole. The provisions of see-

tion 10 (b) of the conference agreement insure the

Board’s receiving only legal evidence, and section

10 (c) insures its deciding in accordance with the

preponderance of the evidence. These two statutory

requirements in and of themselves give rise to ques-

tions of law which the courts will hereafter be called

upyn to determine — whether the requirements have

been met. This, in conjunction with the language of

the Senate amendment with respect to the Board’s

findings of fact—language which the conference agree-

ments adopts—will very materially broaden the scope

of the court’s reviewing power. This is not to say that

the courts will be required to decide any case de novo,

themselves weighing the evidence, but they will be

under a duty to see that the Board observes the provi-

sions of the earlier sections that it does not infer facts

that are not supported by evidence or that are not

consistent with evidence in the record, and that it does

not concentrate on one element of proof to the exclu-

sion of others without adequate explanation of its

reasons for disregarding or discrediting the evidence

that is in conflict with its findings. The language also

precludes the substitution of expertness for evidence

17

in making decisions. It is believed that the provisions

of the conference agreement relating to the court’s

reviewing power will be adequate to preclude such

decisions as those in N.L.R.B. v. Nevada Consol. Cop-

per Corp. (316 U.S, 105; 5 Labor Cases 51,1401) and in

the Wilson, Columbia Products, Union Pacifie Stages,

Hearst, Republic, Aviation and Le Tourneau, ete.,

cases, supra, without unduly burdening the courts. The

conference agreement therefore carries the language

of the Senate amendment into section 10 (e) of the

amended act.’’ Conferenec Report House Report 510,

80th Congress., pp. 55-56.

The question of whether or not back pay should be

ordered in a particular case and in what amount is a

matter of general national concern. The standards estab-

lished by the 1947 Amendments of the National Labor

Relations Act and the Federal Administrative Procedure

Act for evaluating the evidence t» support Board orders

in that regard have been misapprehended or misapplied

by the Court of Appeals for the First Cireuit. Also in a

matter of wide public interest, there appears to be no

decision of any Court of Appeals or by this court from

which the parties to such proceedings may obtain reliable

guidance.

Conclusion

For the foregoing reasons, this petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Bensamin H, Dorsey

1700 K Street

Washington, D. C.

Muzton G. Jounson Attorney for Petitioner

Wetier, Reynoups & Jounson

832 Industrial Bank Building

Providence, Rhode Island

of Counsel

19

Appendix

United States Court of Appeals

For the First Circuit

No. 5018.

NATIONAL LABOR RELATIONS BOARD.

PETITIONER,

v.

EFCO MANUFACTURING, INC.,

RESPONDENT.

ON PETITION FOR ENFORCEMENT OF AN ORDER AND SUPPLEMENTAL

ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

[108 N.L.R.B. 245; 111 N.L.R.B. No. 182]

Before Macruver, Chief Judge, and Woopsury and

Hartican, Circuit Judges.

Sidney A. Coven, Field Attorney, with whom Theophil C. Kamm-

holz, General Counsel, David P. Findling, Associate General Counsel,

Marcel Mallet-Prevost, Assistant General Covnsel, and Arnold Ordman

and Nancy M. Sherman, Attorneys, were on brief, for petitioner.

Milton G. Johnson for respondent.

OPINION OF THE COURT.

December 13, 1955.

Hartican, Circuit Judge. This is-a petition by the Na-

tional Labor Relations Board pursuant to Section 10(e) of

the National Labor Relations Act, as amended (61 Stat.

136, 29 U.S.C., § 141 et seq.), for enforcement of its order

and supplemental order against respondent, Efco Manu-

facturing, Inc., East Greenwich, Rhode Island.

A previous order of the Board issued July 31, 1952,

20

directing respondent to cease and desist from its refusal

to bargain with the certified union, United Steelworkers

of America, C10, was enforced by this court on April 22,

1953. National Labor Relations Board vy. Efco Mfq., Inc.,

203 F.2d 458 (1 Cir. 1953).

Respondent does not argue the propriety of the order

issued on April 15, 1954, based in part upon findings that

‘* © * the strikers, being unfair labor practice strikers,

were entitled to immediate reinstatement upon application

* * * ** except as such order relates to Charles W. Arnold

directing his reinstatement with back pay.

Neither does the respondent argue the propriety of the

supplemental order issued on Mareh 21, 1955, except as such

order relates to Charles W. Arnold and James Cummiskey,

directing that they be paid $1995.59 and $1473.58 in back

pay respectively.

With respect to Arnold the respondent contends that

‘© * * * his illegal conduct during the strike should dis-

qualify him from consideration for back pay but in any

event the evidence fails to support the conclusion that

during the critical period he earned less than if he had been

2° 2” oF?

.

working for respondent

As to Cummiskey, respondent contends that he

ix entitled to no back pay beeause he voluntarily removed

himself from the labor market and under established prinei-

ples of law thus disqualified himself from consideration.”

It is established that the strike in which Arnold, Cum-

miskey, and others were engaged was a strike resulting

from the unfair labor practices of the respondent. Under

these circumstances where the activities of the striking

employees are such as to be protected by § 7 of the Act,

the general rule is that employees are entitled to reinstate-

ment with back pay even if permanent replacements must be

discharged. National Labor Relations Board v, Remington

Rand, lic., 130 F.2d 919, 927 (2 Cir. 1942).

‘ss 2 * @

21

Respondent seems to contend that Arnold, by his conduct,

put himself beyond the protection afforded by § 7 of the Act.

It bases its contention upon three incidents which allegedly

occurred during the strike: (1) on the picket line Arnold

insulted a nen-striker by using coarse and vulgar language;

(2) he laughed when a striker in whose car he was a

passenger cut too sharply in front of the car of the plant

manager, causing the latter to swerve sharply to avoid a

collision; (3) he threatened the plant manager with a beat-

ing.

Perhaps the Board in the exercise of its discretion could

have concluded that these incidents were serious enough

to warrant denial for reinstatement. But we do not think

that any one or all of them, if they occurred, require

denial of reinstatement by the Board as a matter of

law. Without pausing to consider the first two incidents,

we turn briefly to the more serious charge that Arnold

threatened the plant manager with a beating. The trial

examiner took a somewhat less drastic view of this incident.

He found, and the record amply supports his finding, that

Arnold’s conduct was properly to be characterized as ‘‘im-

polite’, On the basis of this finding we have no such case as

where an employee puts his employer in direct fear of an im-

minent beating. We have only a display of insolence and we

agree with the Board that despite this Arnold was engaged

in activities protected by the Act. Kansas Milling Co. vy.

National Labor Relations Board, 185 F.2d 413 (10 Cir.

1950).

With respect to the suppleme atal order fixing the amounts

of back pay due Arnold and ( ummiskey we find that there

is substantial evidence on the record considered as a whole

supporting the amounts of these awards.

A decree will be entered enforcing the order and supple-

‘mental order of the Board.

8 TE pepe annenampinntent Mae pte e

IN i nic wenn tbbth cern nen ddcannbetbbaoetank

SL si, s vick ad vse ence gahubuswiewaden

IR oil oc txasea se he tbiscdencusredasesseeaaey

A. The facts as found by the Board ............

1. The unfair labor practice proceeding cul-

minating in the Board order of

pe) | Ra a

2. The back-pay proceedings and the sup-

geeepental rer. cnc ivcdinwcdessin

B. The opinion of the court $i

NE op dod 1 6k% bee ivee chin bsevehe uc hee

6 00.93 ba 4 chev int couuebaebetel ce ete

CITATIONS

Cases:

National Labor Relations Board vy. Pittsburgh

Steamship Co., 340 U.S. 498, 502-503..........

Miscellaneous:

United States Department of Labor, Bureau of

Employment Security, Bi-monthly Summary of

Labor Market Developments in Major Areas,

pp. 24, 25, 45-46 (Nov. 1953)................

L)

©oc w

8-9

Ynthe Supreme Court of the Winited States

Octoser TERM, 1955

No. 717

Erco MAnuracturina, INc., PETITIONER,

Vv.

NationaL Lasor Revations Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

OPINIONS BELOW

The opinion of the court below (Pet. pp. 19-21)

is reported at 227 F. 2d 675. The Board’s original

decision and order (R.A. 69a-123a) ' is reported at

108 NLRB 245; its supplemental decision and order

(R.A. 259a-271a) is reported at 111 NLRB 1032.

'The symbol “R.A.” refers to the appendix to the Board’s

brief filed in the court below. Wherever a semicolon appears,

the references preceding the semicolon are to the Board’s

findings; those following the semicolon are to the supporting

evidence.

Gi)

2

JURISDICTION

The judgment of the court below was entered on

December 13, 1955. The petition for a writ of cer-

tiorari was filed on February 28, 1956. The juris-

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

1254(1).

STATUTE INVOLVED

The pertinent statutory provisions appear on

pages 2 to 6 of the petition for certiorari.

QUESTION PRESENTED

Whether the Board’s order fixing the amount of

back pay due to two employees against whom peti-

tioner discriminated in violation of the National

Labor Relations Act is supported by substantial

evidence on the record as a whole.

STATEMENT

A. The Facts as Found by the Board

1. The unfair labor practice proceeding culminat-

ing in the Board order of April 15, 1954

On April 14, 1952, petitioner’s employees went

on strike in protest against petitioner’s refusal to

bargain with the employees’ certified bargaining

representative (R.A. 73a, 114a; 4a-5a). Among the

strikers were Charles Arnold and James Cum-

miskey, both of whom, together with a number of

others, individually applied to petitioner for rein-

statement after the strike terminated on August 12,

1952 (R.A. 75a, 79a, 80a, 82a, 85a, 87a, 90a, 92a,

93a, 99a, 117a; 1la-14a). Petitioner denied rein-

3

statement to some of these employees, including

Arnold; failed to respond to the applications of

others, including Cummiskey ; and delayed offering

or failed to offer reinstatement to others (R.A.

T7a-103a, 88a, 118a; 14a, 15a, 68a).

The Board found, in relevant part, that peti-

tioner violated Section 8(a)(3) and (1) of the

Act by refusing to reinstate Employee Arnold and

by failing to offer reinstatement to Employee Cum-

miskey (R.A. 79a, 81a, 82a, 85a, 86a, 87a-88a, 89a,

92a, 93a, 95a, 96a, 119a). Accordingly, the Board

(R.A. 119a-123a) directed petitioner to offer rein-

statement to Arnold and Cummiskey and to make

them whole for any loss of pay they may have suf-

fered by reason of the discrimination against them

by payment to each of them of a sum of money

equal to that which he would have normally earned

as wages from the date of his application for rein-

statement to the date of petitioner’s offer of rein-

statement, less his net earnings, if any, during said

period.

2. The back-pay proceedings and the supplemental

order

After the issuance of the Board’s order, peti-

tioner indicated that it proposed to comply there-

with but that it questioned the amount of back pay

claimed on behalf of Arnold and Cummiskey and

other employees covered by the Board’s order. Ac-

cordingly, the Board scheduled a back-pay hearing

at which evidence was adduced, before a trial ex-

aminer. The Board subsequently affirmed the trial

4

examiner’s findings as to the amount of back pay

due the employees in question, and issued a sup-

plemental order requiring petitioner to pay certain

specified sums to Arnold and Cummiskey and other

employees (R.A. 270a-271a). So far as is here ma-

terial, the evidence adduced at the back-pay hear-

ing with respect to Arnold and Cummiskey whose

awards of back pay are challenged by petitioner is

summarized below:

a. Charles Arnold applied for reinstatement in

August 1952 but petitioner refused to reinstate

him (R.A. 75a, 78a, 259a; 13a, 15a-16a, 68a).

Thereafter he worked for another employer until

February 1953, when he was laid off (R.A. 260a;

158a). He then became self-employed as a shell-

fisherman (ibid.). He continued this private busi-

ness venture until May 10, 1954, when petitioner of-

fered him reinstatement and he accepted (R.A.

260a ; 158a, 159a). The only issue before the Board

was his earnings as a shellfisherman between Feb-

ruary 1953 and May i954, which under the Board’s

order were to be deducted from the amount of back

pay otherwise due him (R.A. 104a, 260a-261a ; 126a-

127a).

Relying in part upon Arnold’s demeanor as a

witness, the trial examiner and the Board credited

Arnold’s testimony under oath that his earnings

averaged about $40 a week during this period (R.A.

260a, 261a-262a; 161a-162a). Arnold based this

testimony on his income tax return, also executed

under oath, which he had filled out on the basis of

a daily income record he had kept on the back of a

5

calendar (R.A. 260a; 161a-162a, 164a, 247a-255a).

While this daily income record was not available at

the supplemental hearing, having been lost or ac-

cidentally destroyed by Arnold before the amount

of back pay became an issue, the record contains

other evidence corroborating Arnold’s testimony

that his earnings as a shellfisherman amounted to

about $2080 a year (R.A. 260a; 185a-188a). Ar-

nold’s sheflfishing job required him to work only

4 days a week and 7 hours a day, and permitted

him to take time off whenever he chose (R.A. 166a-

167a, 171a, 173a-177a). Nevertheless, Arnold, who

had a wife and child to support, accepted peti-

tioner’s tender of a job requiring him to work 8 or

9 hours a day and 5 or 6 days a week, and paying

$3300 a year, even though Arnold had engaged in

shellfishing as a pastime or sideline since boyhood,

and even though petitioner offered him reinstate-

ment at a time of year when shellfishing was most

pleasant and most profitable (R.A. 125a, 158a, 166a,

167a, 173a-176a, 182a, 228a-232a).

Although alleging that Arnold’s real earnings

were more than twice the amount he testified to,

petitioner made no effort to show that Arnold’s ex-

penditures, savings, or standard of living was

greater than his admitted income would permit. In-

stead, petitioner relied solely upon the opinion

testimony of two officers of the State Conservation

Department that if Arnold’s average daily catch

equalled his catch on the occasions, about once a

month, that they had observed him and that if

other shellfishermen had accurately reported pre-

6

vailing prices for shellfish and their yearly income,

Arnold should have made at least $5,000 a year—

half again as much as his yearly income from

the job which he accepted at petitioner’s plant

(R.A. 191a, 202a-205a, 210a-214a, 217a-223a, 224a-

226a). The Board gave little weight to this testi-

mony, on the ground that it constituted ‘‘surmise”’

and ‘‘guess’’ (R.A. 261a). Accordingly, in deter-

mining the back pay due Arnold for the time dur-

ing which he worked as a shellfisherman, the Board

deducted the earnings to which he testified from the

amount that petitioner stipulated he would have

received absent its discrimination against him

(R.A. 268a-269a, 271a).

b. James Cummiskey applied for reinstatement

in September 1952 but was not offered reinstate-

ment until March 1953, after the hearing in the

unfair labor practice case (R.A. 264a; 2a, 13a-14a,

129a, 139a). Petitioner contended before the

Board that Cummiskey was not entitled to any

back pay because he allegedly failed to make a rea-

sonable search for employment during the period

for which he was awarded back pay.

Cummiskey was a 19-year old boy with limited

work experience who, at the time that petitioner

wrongfully failed to offer him reinstatement, ex-

pected to be drafted into military service in the

near future (R.A. 264a; 131la, 133a). After peti-

tioner failed to respond to his application for re-

instatement, for reasons not revealed by the rec-

ord, Cummiskey applied for unemployment com-

pensation (R.A. 264a;139a). While he was receiv-

7

ing unemployment compensation he consulted the

Rhode Island State Employment Service every

week, and after his insurance payments were ex-

hausted, he consulted it twice a month (ibid.).?

However, the State Unemployment Service never

referred him to any jobs (R.A. 264a; 139a-140a).

Cummiskey unsuccessfully sought employment

with a nearby cemetery where he had previously

worked ; with the Ideal Windlass Company, where

his father was ‘‘boss’’; and, on several occasions,

with the Allentown Mills and with the Chandler-

Evans Division of the Niles-Bement-Pond Com-

pany (R.A. 265a; 130a, 138a) ; Chandler-Evans re-

fused to hire him because he was of draft age (R.A.

265a; 131a-135a). Cummiskey also consulted the

help-wanted advertisements in his home town news-

paper, apparently the only one subscribed to by his

family (R.A. 265a; 136a-137a). Cummiskey never

learned of any jobs available which he was qualified

to fill (R.A. 265a; 138a).’ Although petitioner’s

secretary-treasurer was aware of certain vacancies,

he never told Cummiskey about them (R.A. 227a).

Cummiskey accepted petitioner’s offer of reinstate-

ment, tendered about 7 months after he applied for

it, and worked until called into service (R.A. 264a;

129a, 239a).

_

* The State employment office was open only one day a week

(R.A. 139a).

*Unemployment was then widespread in the area. See

United States Department of Labor, Bureau of Employment

Security, Bi-monthly Summary of Labor Market Develop-

ments in Major Areas, pp. 24, 25, 45-46 (November 1953).

The Board concluded (R.A. 266a) that ‘ Bearing

in mind Cummiskey’s age and draft status, Cum-

miskey’s experiences at Chandler-Evans because

of his draft status; Cummiskey’s registration with

the State Unemployment Office and Cummiskey’s

individual efforts to get work, including his search

through local newspapers, * * * Cummiskey

made reasonable efforts to secure desirable employ-

ment’’ (R.A. 266a). The Board held that Cum-

miskey was therefore entitled to receive back pay

for the period prescribed in the Board’s order

(R.A. 264a, 266a).

B. The Opinion of the Court Below

The court below enforced in full the Board’s un-

fair labor practice order and supplemental order

fixing the amounts of back pay due to the employ-

ees. So far as here material, the Court stated

(Pet. p. 21), ‘‘With respect to the supplemental

order fixing the amounts of back pay due Arnold

and Cummiskey we find that there is substantial

evidence on the record considered as a whole sup-

porting the amounts of these awards.”’

ARGUMENT

The basic issue presented in the instant case is

the sufficiency of the evidence to support the back-

pay award to the two employees made by the Board

and approved by the court below. Petitioner’s

challenge to the substantiality of the supporting

evidence presents no question of general impor-

tance warranting review by this Court. National

= :

Labor Relations Board y. Pittsburgh Steamship

Co., 340 U.S. 498, 502-503. Moreover, as the State-

ment shows and the court below found, the Board’s

findings are adequately supported by the record as

a whole.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

Simon E. Sose.orr,

Solicitor General.

THEOPHIL C. KAMMHOLz,

General Counsel,

Davi P. Frnxp ina,

Associate General Counsel,

Dominick L. MANOoLI,

Assistant General Counsel,

Nancy M. SHERMAN,

Attorney,

National Labor Relations Board.

Marcu 1956.

W 0. 5. GOVERNMENT PRINTING OFFICE: 1986 a78082 = 1108