Brief for the NLRB in Opposition — Montgomery Ward & Co. v. National Labor Relations Board (No. 264)

. Cffice - SupremeCourt, U3

| ee eg Se

etic ea JUL 31 1957

No. 264 —_L_ JOHN T. FEY, Cle

-— Brthe Supreme Gourtof the Wnited Sites

poveiaxes TERM, 1957

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MonTgoMERY. Warp & Co., INC., PETITIONER,

wv.

NationaL Lapor RELATIONS Boarp

QM PETITION FOR A'WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

.

BRIEF FOR THE NATIONAL LABOR: RELATIONS. BOARD

IN’ OPPOSITION

4b aoe | esa 4 o

. J. LEE RANKIN, ’

. Soliciton General,

Department of Justice,

Washington 25, D. C.

JEROME D. FENTON,

General Counsel,

STEPHEN LEONARD,

Associate General Counsel,

DOMINICK L. MANOLI,

Assistant General Counsel

RUTH V. REEL,

Attorney, —

National Labor: Relations: Board,

Washington 25, D. C.

INDEX

Opinions below i

Jurisdiction . 2.0... Help en syne vig dle re sete a oes ae |

Questions presented 2000000000. | | Son. 4

Statute involved 2

Statement oo... Seas ae ee SR PTC Sa LA, Ge ge ate 2

I. The Board's findings of fact, @onclusions. and order P.

A. The unfair labor practices. 2000000000... 2

B. The supervisory stata. ot Dutéur. ooo... t)

“. The Board’s order 270... ct ee s

H. The decision of the eourt below, .....00..0.00.... »

Argument ........ Sane a ee eee oe ee weer ae eee y

Comelusion ...-..:.......5.: ee ee ee TE Tea eer a Re cy. 14

CITATIONS

Cases: Z | |

artsell Mills Co. v. National Labor Relations Board.

Dre IN i fay ine RIG ces eases ete i 1]

National Labor: Relations Board veo Donnelly Garment ;

if OR Ue epee eee ern Oh ts ort oo bin 13

V atonal Labor Bolation: Board vi James HT. Matthe W's

0; fee 8 ae ee ae ee iar Pars Acetone 12

National Labor Re lation s Board V Peades Supe rior Lune-

ber (Corp.. 167 Pe ee ine ee en ae ee 12

National Labor Relations Basin V. Southeastern Rubber

Mig. Co., 213 F. 3d 11... GN... isan ies adr cn tale 12

National Labor rie Board v. Walt Dien ey Pro-

ductions, 146 F. 2d 4 Me al al har agate Ty: 12

Packard Motor Co. ie al Labor Relitiv Ns Board

99 US. 45... COPY Teg miaa p ie gba Dea ig Ae AD

Sun Ship Employees Ass'n vo National Banor elas .

an EE a ee 12

Wallace Corp. v. National Labor Vedations Bo, wre, 323,

° US. 248, affitming: 141 Fo 2d 87 ania

Statute:

National Labor Relations Act as amended (Ob Stat ius

29 USC. lol, et seq: .

Section 2011} 7 ry

seetion 6(a)())- .......... See eee i 2.6.8.9. 11.13

Section B(ai(3i,.... 2.0.6.4... cence ea ae ee Oy RS, BO

Anthe Supreme Courtofthe United States

On ave Tee aw 1057

No, 264 t

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Monroovmeny Warp & Co. PNG. PETITIONER,

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"NATIONAL LABorR RELATIONS Boarp

=

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED.

STATES COURT GF APPEALS FOR THE SECOND CIRCUIT:

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

‘The original opinion of the court below as moditied

by its supplemental opinion denying petitioner's

petition for rehearing (Pet. App. HA-25a) is re-

ported at 242 BF. 2d 497. The findings of: faet. can-

clusions of lawsand order of the Board (R. 339-409)

are reported at Ply NLRB 645. C

JURISDICTION

The decree of the court below was entered on April

*t WoT, Petitioners petition for rehearing was denied

(1)

on April 15, 1957 (RO). The petition fora writ of

certiorari was tiled on duly 12,1957. The jurisdic ‘tion

of this Cott is piveked under 28 Uls.e. 1254 01).

QUESTIONS PRESENTED

1. Whether substantial evidence supports the Board's

finding that ci eae in violation of the National

Labor Relations Act, diseriminatorily discharged two

ss i for WoW activities. |

| Whether substantial evidene e'stpports the Béard’s

adie that petitioner vielated: Section S(a)(1) of the

Act by questioning employees concerning their union

membership aga activities,

STATUTE INVOLVED .

The pertinent provisions of the National Labor Re-

lations Net. as amended COL Stat. 196, 29 U.S.C. 151

ct seq.) ave appended to the Petition, pp. TA-AA,.

: STATEMENT

I. The Board's Findings of Fact, Conclusions, and Order

The Board found that pe titioner (also referred to as

e'the Company’) vielated Section 8(v) (3) and (1) of

the Aet by discriminatorily discharging two employees

because of their activities on behalf of the Union ! and

further violated Section Scajy¢1) by questioning em-

plovees concerning Goion membership and attendance

at Unien meetings. The evidentiary support for these

findings may be summarized as follows: 3

aX. Thee wnfair labor practice s

At the outset ofa drive to orgapize the approximately

SCemplovees Tn petitione V's store at Binghamton, New

F

o

Retail Clerks Dnternations! Association, Local Union No. 1687,

York, in June 1954. the Union promptly gained the

strong support of emplovees: Prank Felker and Lrene

Witter CR. 392-393.552-253. 399, 3792 108-111, 151-153,

lod, 160). Both Felker and Witter’ signed member-

ship applications on June 2 oor 3) thereafter solicited

other employees to join the Union. and attended union

meetings (RR, BOA BOS, B55: , 350, 375, 108-111, 151-

Io5). At the height of the organizing, campaign, be-

tween July 16 (when the Unien tiled a representation

petition with the Board) and Aneust 17 Cwlen an elec

tion was held in the storey. Felker was particularly

'

-~

active in soliciting members, goine so farias to ded

| money to one emplovee to enable hime to join the Union

CR. 359, S88, 392: 110, 2-9, 13-14).

During this preeleetion period, Store Manager Rum,

¢

ble questioned three employees about their unien svin-

pathies, membership. and attendanee at Union meetings

CR. 3932 195-194, L9s-199), AMpproximatels two weeks

before the election, Departiient Head Duakour (where

J ostipervisory statis is disctissed datray pp. OS) told: an

: emiplovee that the Company skew whe the head mnie .

Inemmbers were and that they would be taken enare of

“after the election” CR. 103). Dukeur alse informed

hime that, if the Union won the eleetion. teertain in

dividuals in the store world be autem tieally sqieezed

out” specitically naming z eiherias an eniployee when

petitioner would Ee ze | out Thronoh “eb oelinania

tion, that they could put twa Jobs Iwo cepartiments

tevether and eliminate that pebO OR. so 3o0, 101-103),

On about Nugust-6, Dukour warned Pelher that the

Companys Knows alloof those that are in daver of the

Union and the wowill Jose their jobs aud a few ive

hefore the election again told) Pelker that should the

Union be sueeesstul the Company World ttelose the

ee ,

store’? (R. 393,957; 112) 113). In addition, DuFour

repeatedly advised) Witter not to “get mixed up with

the Union or she would lose her jeb OR. 395, 399, 397,

376; 154-157). |

Despite DuFour’s admouitions, neither Felker nor

Witter made any secret of: their pro-imion views.

When asked by DuFour what he thought about the

Union, Felker replied that the Union was a good thing

because of the protection it would afford the employees

(R. 393, 356-357; 111, 804). In reply to DuFour's

query whether she had signed a Union card, Witter

answered in the affirmative, adding that she “had

‘‘waited a long time to see this happen’* CR. 398-399,

3876; 154, 304). In addition, Witter not only ‘con-

versed openly with a Union organizer at the store

under the observation of Store Manager Rumble, but

also informed Assistant Store Manager Braneato be-

fore the election: “*T intend to vote, and vou know I

intend to vote ‘ves’ 7 (RL 375, 355, 399, 1. 22; 152-154,

160, 68-69,,211). ! .

In the election on August 17; the Union réceived-a

majority. of the votes (R. 353; 13-14). For the next

two days, Witter wore her union button in the store

and on the afternoon of the 19th answered a comment

by Dukour by stating: ‘Yes, and [Tam proud of that

button. T waited a long time to wear one’ CR. 399,

370; 304, 199-197, 195). Dukour replied: ‘tl wouldn't

have anything to do with the Union or anybody in it.

if | were you’ (tbid.). A few hours later, without prior

Warning or notice, Witter was discharged by Assistant

Store Manager. Braneato (R. 2399, 376; 157-159). An-

swering her question as to the reason for -the’ dis-

charge, Brancato said: ** Well, L just ‘can’t carry vou

on the payroll any longer, “Yeu are ona non-basic

payroll’? CR. 876; 159). Felker, who had begun a

week's vacation on August 16 (returning to the store

to vote in the election on August 17). was liké@éwise stim

marily discharged by Braneato when he reported for

work on August 23° OR. 395, 560; 14-117)... Store

Manager Rumble’s parting statement to Felker was:

“Prank, I hope you. don’t hold anything against nie,

As far as | am coneerned, there was nothing wrong

with-your work’? (Ri 360; 117). .

In an attempt to explain. the discharges at the hear-

ing in this case, the Company asserted that Felker’s

job was eliminated because his department was cou

solidated’ with another and that Witter Jost her jeb

because of a reduction in force CR. 3893-594, SOA

However, the-Company failed to transfer Felker to

another available job and advertised for ew em-

plovees a few days: after the discharges, hiring a re- .

placement for Witter within two weeks and for Felker

within a month (R. 393-394, 397-398; 400.9078. 1. 12:

77, 186-187, 59, 73, 77-78, 205, 246-247). “The Cympany

also claimed numerous deficiencies in the work of beth

Felker and Witter (R. 394-397, 599-400, 361-379. 376-

377). After carefully considering the evidence with

respect to the alleged shortcomings, the Board found

them to be either sHght or without substance CR, Sob

397, 399-400, 361-375, 376-377. Tt. was undisputed

that Felker, who had been in the Company's farm

equipment department for approximately 12 vears,

had received several prizes and awards for outstandine

sales ability: OR. 892) 360-5615 117-122, GO-0T, 2082 280,

92): And Witter. who had worked in many ot the

Company's departments intermittently sinee 1942 and

continuously for four years before her disc hi ize. had

previously been recommended hy the Ianagement as

()

* * and satisfactory em-

plovee “swho was “interested in her werk’? CR. 3598,

ne 21:15, 331, 192-193, 185-186). |

After “elose examination of the record and partie-

eran honest ane Indust ric us *

ularty heeatse the reasons offered by [petitioner] in

Justification of “the discharges” did) ‘*not stand up.

under seratiny.’? the Board concluded that petitioner

discharged’ these two employees, not beeause of eco-

homie considerations, but in order to “vid itself of ae-

Hive Unie proponents? and that its conduct was ae

cordingly Vielitive of Section 8(a) (3) and (1) of the

Net ORIMO0-401). The Board further conclided that

Store Manager Rumble‘s questioning of emplovees

Poneerning anion menibership and activities, viewed

Sacaist the background of the ‘diseriminatory dis-

charges, was Vielative of Section S(aj(1) of the Act

« ; {

CAR. 401 )5

DB. The Supe rivsory status of Dukour

Mollowing the Pniion’s representation petition, the

Compauy and the Union waived a hearing by enteritig

inte astipulation fora consent election which set forth

othe voting wnt as all emplovees”” in the store, extlud-

ing supervisers CR. 8885-9). AXnemployee list, fur-

nished by the Company and used for determining vot-

ing eligibility. ineluded the name of DukFour, whe was

permitted to vote inthe election without challenge CR.

SSS-A89. 10, 505). Sanee the Board’s Regional Die

rector approved the election agreement between the

parties, no hearing was held inthe representation pro-

Phe Bonured totmad moert a petitioners contention that a stute-

tient by Assistant Store Manager Braneate to Water was made

pohingly, and cteeordingly disiussed the complaint: inSefar as uit

alleged a Vielation at Section Sieh) an this respect (R. Feb).

ceeding and the Board had no occasion to determine

Dulfour’s status OR. S88. 589). The record in the in-

stant complaint proceeding Sea d, however, that Du-

Four directed the work of other emplovees and effec-

tively recommended the hiring and discharge of indi-

viduals in his department and that the exereise of his

authority was not merely routine or clerical CR. 3588,

990-351; 48. 69-70, TO-82, 83-86, 87-92, 93-100, 104, 171,

199-200, 201). Coneluding that ‘tthe mere fact that

Dulfour was permitted to vote in the election by agree-

ment of the parties is net the equivalent of adetermina-

tion of his status by the Board’ CR. oso), the Board

found that DuFornighiad astatus different from other

department heads in the stere and was in-fact a super-

Visor Within the meaning of Section 2¢ 11) of the Act

CR. 888). |

A MAJORITY of the Bonurd did iret adopt the Trial Ex-

miner's finding that petitioner violated Section 8Ca)

(1) of the Act because of Supervisor Dukour’s inter-

rogation and threats CR. 390-597) 404-407, 379-387).

Jeing of the view that statements by spervisors are

unlawful only when they reasonably tend to restrain or

coerce emplovees, the Board conelided that there was

no intimidation here because Dud’ciur was permitted to

vote in the election and the employees would consider

him ‘tone of themselves * CR. 390-591). Tlowever, the

Board unanimously held OR. 590-391, 404-407) that

petitioner Was not entitled to have the evidence as to

Dulour’s conduet exeluded from the Board’s consid-

eration in determining the issues with respect te peti-

tioner’s knowledge of the uniem acfivities of Felker

and Witterand the reasen for thei discharge. Tn this

connection, the Board stated CR. 390-597). the im-

portant fact wats that Dukorr was actu iv “tan arm of

a

Management’ dnd “an emplover is chargeable with

knowledge of union activities acquired by such a su-

pervisor.”’

(. The Bourd’s order

The Board's order (R. 401-404, 408-409) requires pe-

titioner to cease and desist from the unfair labor prac-

tices found and from an any other manner interfering

with, restraining or coercing its employees in the exer-

cise of their rights under. Section 7. of the Act. Aftirm-

atively, the Board ordered petitioner to reinstate Fel-

ker and Witter with back pay and to post appropriate

notices.

I. The Decision of the Court Below

The court below sustained the Board's findings and

enforced its order. |

Tn holding that substantial evidence <upported the

Board's finding. that Felker and Witter were = dis-

charged because of union activities, the court rejected

petitioner’s contention that the Board could not take

into account DuFour’s knowledge of their union activ-

ities and his threats of loss of employment in determin-

ing the motives of the supervisors who acruatly did the

distharging (Pet. App. IGA-T9.N). Stating that ** Da-

Four's supervisory status is clear’? ¢Pet. App. IZA),

the court coneluded that the Board was entitled to take

his conduct and statements inte consideration in de-

termining the Company's motives for dismissing ‘the

two emplove es. The court further held that. for the

reasons stated by the Board, there was ue ineconsist-

eney hetween the Board's action in this respect andthe

Board's refusal to find petitioner liable fora violation

a.

of Section 8(a)(1) on the basis of DuFowur’s activity

9

(Pet. App. 7A). The court also held that the inelu-

osion of Dukour an the voting unit did not estop the

Board from considering his actual status in the instant

proceeding. as neither the Board nor the Regional Di-

rector made any definite determination of his status in

the representation proceeding (Pet. App. 17A-J9A).

ln addition, the court found (Pet. App. 19A-20.A,°

24A) other evidence in the record to support the

Board's refusal te adopt petitioner’s explanations for

the discharges, neting partienlarly the timing of the

discharges, the absence of prior warning or notice, the

quickly following advertisement for new employees,

the almost immediate replacement. and the lack of sub-

stance dn petitioner’s assertions of IneomMpetence,

And, finally, the court found ‘warranted by the ree-

ord (Pet. App. 20.4, 24-254) the Board's conclusion

that. “in the particular factual setting of this case,’

Store Manager Rumble’s qnestioning of employees con-

cerning tnion affiliations gyas violative of Section

R(a) (1). ;

ARGUMENT

1. The cetitral issue in this cade, as the court below

observed, ds whether petitioner discharged the two

employees for union activity or for reasons of. effi- |

-cieney and economy. The court below, on the hasis of

the evidence summarized above, pp. 2-0, upheld the

Board's findings of unkuwfal diserimination as ade-

analy supported by the reeerd. Essentially. peti

tioner’s ease here is (Pet. 10-21) that the Board's find-

Ings are not supported by substantial evidence-on the

record ax a whole and that the court below erred in

affirming those findings, Sueh an issue, as petitioner

«

10)

acknowledges (Pet. 255). normally raises: ne question

warranting further reviewsby this Corrt.

More specifically. petitioner's attack tipo the ade:

quacy of the evidence supporting the Board ’s decision |

rests on the following subsidiary contentions: that the

Board's finding of discrimination rests ‘tprimhrily if

not exclusively” on the aati-union remarks of deBart-

ment head Dukour: and that the Board erroneously

took those remarks inte consideration in determining

petitioner’s motive for the dismissals since. first. there

is no showing that Dukour owas representing ihe

Views of management and. second. for election pur

poses the Board had not treated DuPBonr as a repre:

séntative of management. Preliminarily, it may be ol

served that the Board's findings of discrimination do

not rest primarily on Dubonr’s remarks and that, even

Without those remarks, the cother eipermistanees stir

rounding the: dismissals would have furnished ample

basis for the findings of discrimination. But. in anv

event. since DuPFour was in fact a supervisor. as peti

tioner does not denv.and henee “allied with manage

ment” and ina position to knew petitioner’. real mio:

tives (Pachard Motor Co... Nationa! Lahoy Relatious

Board, 380 US, 485, 196). the Board could reasonably:

“infer that his statements reflected management’: View,

and that he communicated. hi- Knowledve of cniplaves

union activity to management. °°Pt mast be renmiesn

hered. in this connection. that the question tavelyved

[i.e of motive] is a pure question of fact sthat. in piss

Ing upon it, the Board may give consideration to cir

cumstantial evidence as well as te that whieh is direct:

that direct evidence of a pe pose to vielate the <tatute

Is rarely obtainable; and that where the finding of the

Board is supperted by cirenmistanees frome. whieh the

| Wd

cConelusion of diseriminatery discharge may legiti-

* *9

mately be dvawn, itis binding upon the courts *

Hartsell Mills Cac, Naliouel Labor Relattous Board,

RUE 2b Qe, Se 4 a 4). :

Further, there is ue) ineonsistency between the

Board's action in this respect and its refusal te attrib-

ute DuFour’s remarks to management for the pur-

poses of Seetion SG) 01). whieh prohibits employer in-

terference and restraint of employees in the exercise

of their right under the Aet. As the Board. stated CR.

390) :

When a supervisor is ineluded in the unit by agree-

ment of the Union and the Employer is permitted

to vote in the election, the ennlovees obviously re-

gard him as one of themselves, Statements made

by sneha supervisor are net considered by em-

plovees tobe the representations of management,

but of a fellow employee. Thus they do not tend

to intimidate employees. ~ * * Tlowever. a super-

visor, although mistakenly permitted to vote in the

election by agreement of the parties, remains an

‘rm oof management, To the extent, therefore,

that an emplover’s accountability for the conduct

of a supervisor does tot depend on employee reac-

tien, the emplover’s responsibility, for the super-

Visor’s actions is wet affe ted hy the fact of inelu-

sion inthe unit. Hence. an employer is chargeable

with knowledge, of union activities acquired -by

such a superviser,

Petitioner’s further argument, that the Board was

estopped from considering Duabour as au arm of man

agement for purposes of Seetion Slay Co) stnee he was

ra) F

permitted te vote in the represeritation election. is in

| pe

substantial As the court helow found (Pet. App. 1A-

ISA), neither the Board nor the Regional Director

ever made any definite detertminationvof his status’? in

the representation proceeding since petitioner and

the Union waived a hearing in their consent election

agreement. This agreement was an ordinary, private

agreement” (Sun Ship Kiucplogees Assn vy. National

Labor Relations Board, 139 . 2d 744, 745 (C'.A. ))

and “‘agreements between private parties camiot re-

strict the jurisdiction of the Board’* (Natio Labos,

Relations Board y. Walt Disney Productions, TAG FB. 2d

44, 48 (C_LA. 9) )0 Contrary to petitioners suggestion

(Pet. App. 15-17), moreover, the cireumstances, that

DuFour’s name was improperly included, without ob-

jection by the’Union, 6n the voting eligibility list fur-

nished by petitiouer, did uot alter the fact that he ed

actually, under the Act. a supervisor, Statutory re

quirements are ‘Snot subject toowaiver through aetion

or Inaction of parties toa Labi controversy.” for the

Board’s duty to enforce the public poliex underlying

the Act transcends private rights and ordinary princes

ples of céentract law’? (National Labor Relations Board

v. Southeaste rn Rubber Mfg. Co. 213 F.2d W115 COLA.

D)).

The decision below Is not in conthiet with the de

cision of the Third Cireuit in National Labor Re lALions:

Board v. James H Matthews & Co... 196 BF. Pd Toe.

708-709 (63 NLRB 273, 280-281. 283). upon whieh pe-

titioner relies. The. Matthews case, like the Jmstant

ease, held that the anti-union statements of supervis.

— --+-—_ — - —

3 See also National Labor Relations Board v, Lake Superior Lum-

her (orp 167 Fo 2d 147. 0 uw AN Hy) Cf Wallace ©, poy Nit-

tional Labor Relations Board, 323 VoS* 248. 254. atitming M41 F

2d 87, 91 (CA. 4).

ors voting in an election dlo tet constitute coerelon iN

violation of Seetion SCayc)). but did not deal with the

question of whether siiely staterent= may properiv be

considered for purposes of Section Seasr6o)

- Only oan dsstie of fet ts riised by petitierier’= ja-

sertion (Pet, 2o-2o) that it~ questToning of emiployées

eonee rine une menibe rship and ae tivities Was Lon - |

coercive, “The court below ~usti vined as “warranted hy

the record’? (Pet. App. 20K, 24-2 MN) the Board ’=

finding that ‘tin the particular faetual setting of this

Pease”? Suen interregation coustitate d copreive interfer:

ence with employee rights in violation of Seetion 8Ca)

(1) of the Aet. That the subjects of the questioning

may have characte Yized petitioner’S paanner as eis “ual

or joking is without consequence, for the coore ive char-

acter of e Hiplove yoconditet can tet bi said Te depend

upon the degree of if rospe wtive perge ption. * held hy

the enplovees § i National Labor Relations Boards,

Donnelly Qarment Co., 330 US. 219. aa ¥

ee

14

a

CONCLUSION

For the reasons stated, it fs respectfully submitted

that the petition forea writ of certiorari should he

denied. 7 :

J. Lik RANKIN,

: Solicitor Ge Neral,

JEROME D. Fenton,

Grenereal Counsel,

STEPHEN LeoNaro,

Associate Gienéral Conse!

Dominick L. Manon, .

Assistant General Counsel,

Reva V. Ree, ave :

Attorney, , . |

National Labor Relations Board.

‘JULY 1957. —

ee : F ’

5 @OVERNMENT PRINTING OFFICE 198 PeRTi YT: