# Brief for the NLRB in Opposition — Montgomery Ward & Co. v. National Labor Relations Board (No. 264) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1383%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the NLRB in Opposition - **Published:** January 1, 1957 ## Text . 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 -e@ ‘ Fee) 4 7 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 ’ ; “- , Monroovmeny Warp & Co. PNG. PETITIONER, wb» td v’. > « / Y "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