Brief for the Respondent in Opposition — Piasecki Aircraft Corp. v. National Labor Relations Board

FILE COPY © Perea

ie ee DEC 27 il

5 PJAMES R. BRO LING Clerk

No. 541.

Jn the Supreme Court of the Dnited States

OCTOBER TERM, 1960 «

PIASECKE AIRCRAFT CORPORATION, PETITIONER

v. .

NatioNal. Lapok ReLations Buarp.

U\ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

(ATES COURT OF APPEALS FOR THE THIRD CIRCUIT

: .

"BRIEF FOR THE*‘NATIONAL LABOR RELATIONS BOARD

; IN: OPPOSITION

J. LEE RANKIN,

Solicitor General, —®

Department of Justice, Washington 25, D.C

STYART ROTHMAN,

. treneral Counael, ,

NOMINICK L. MANOLI, re “—~

ixecciate General Counsel,

‘NORTON J. COME, |

tseixtant General Counsel,

RICHARD J. SCUPI,°

ttorney,

Vational Labor Relation« Board “Washington 25, DC.

INDEX

Pa eee Page

Opinions below - a fos . : 1

Jurisdiction - - ' |

Quéstions presented - he 2

Statute involved._. , 2

* Statement. - - os 2

A. The Board's decision. 2

B. The decision of the.court of appeals _ cir

Argument_ -_- ag - 10

Conclusion___ eee rere a 12

re ‘CITATIONS .

_ Cases:

International Union v. National Labor Rela-

tions Board, No. 466, this Term, certiorayi

denied, December. 5, 1960- ie oe

National Labor Relations Board v. Arthur G.

McKee & Company. 196 F. 2d 636, enfore- ;

ing .94 NLRB 399... 2_._._.__- 10

National Labor Relations Board - Vv. Danial ,

Hamm Drayage Company, 185 F. 2d 1020,

enforcing 84 NLRB 458_--- Se 10-11

National Labor Relations Board v. Swinerton,

202 F. 2d 411, certiorari denied, 346 .s.

Rte: eee ee ek 10

National Labor Relations Heard‘ v. Textile Ma- —

“chine Works, 214 F. 2d 929... 2... 10

Statute:

National Labor. Relations Act, as amended

(61 Stat. 135, 29 U.S.C. 151, et seq.): °

Section 8(a)(3)...............-- ci 2

iD a)

C

/

’

tn the Supreme =~ of te Gnited States -

OcroBer TERM, 1960

* 4 No. 541

PrasEcKI AIRCRAFT CORPORATION, PETITIONER

ae v.

- Guaesetas. LaBor ReELatTions Boarp .

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ,

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. la-36a)’

is reported at 280 F. 2d 575. The decision of the

National Labor Relations Board (P. 187a-239a, 249a-

255a)' is reported at 123 NLRB 348.

, JURISDICTION

The decision of the court below was entered on

June 20,.1960. On August 26, 1960, the decision was

amended, and ‘a petition for rehearing filed by peti-.

‘The references “P.” and * ‘B.” refer to those portions of the

record ‘printed as appendices to the briefs below of petitioner

and the National Labor Relations Board, respectively.

c

-tioner was denied (Pet. 35a-36a). The petition for a

writ«of certiorari was filed on November 23, 1960,

_ The jurisdiction of this Court | is invoked under 28

U.S.C. 1254( 1). :

QUESTIONS PRESENTED

> :

1. Whether substantial. evidence supports the |

Board’s finding that the purchaser of a manufactur. _

ing. plant violated Section 8(a)(3) .of the National

Labor Relations Act by rejecting the application of

the former employees for new ee | because

of their union membership. 4.

2. Whether the Board properly concluded that, in

the circumstances of this case, the initial unlawful re-

fusal to hire the formér employees was not excused by j

their failure to ‘respond. to a subsequent inv itation for

a job interview.

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 at pp. 2-3 of the petition.

STATEMENT

A. THE BOARD'S DECISION

) in detailed in our brief in ., , osition to. the

a

~ petition in No. 466, pp. 2-7 (see note 2), to whieh.

we respectfully refer the Court, the Board found that ._

Bellanca - Aircraft Corporation sold its plant and

* The petition of the Union, with respect to another aspect

of the case, was ‘denied by this Court on December 5, 1960, in

International Union vy. National Labor Relations Board. No.

- 466, this Term: “

Oo

ee

e°”*

3

equipment. to _petitioner Piasecki, and that, before

Piasecki took over,, Bellanca terminated the employ-

ment of its former employees’ and the outstanding

bargaining contract with their representative, the

United Automobile Workers. In hiring new em-

ployees, Piasecki discriminated against the former

- Bellanca employees because of. their meimbership in

the Union. The Board held that Piase cki was “not

obligated to bargain with the Union as the successor of

_. Bellanea,: but its refusal to hire the former Bellanca

| employees violated Section 8(a) (3) of the Act. To

remedy the: violation found, fhe Board required

Piasecki, inter alia, to offer immediate. employment -

with back pay to the 133 former Bellanca employees —

found to be discriminated against. The Unioh, by its

petition in No. 466, unsuccessfully sought to challenge

the propriety of the Board’s conclusion that Piasecki

was not obligated to bargain with it as Bellanca’s suc-

cessor? Piasecki seeks by the instant petition to chal--

lenge the propriety of the back pay requirement im-

posed by the Board. P

‘The facts relevant to the latter issue are as follows:

By November 17, 1956, 135 former Beltanea em--

ployees had executed copies of the following: form,

which was furnished by the Union (P.A. 193a-194a;

B. 287b, 396b) :

* The Board, Sesidenteaiciaiad that there was no doubt of

the Union’s majority among the former Bellanca employees—

imposed a bargaining requirement as part of its’ remedy for the

| violation of Section 8(a)(3). See the Board's brief in opposition

‘in No. 466, p. 7. | ;

4

~ Praseckt AIRCRAFT CORPORATION

International Airport

Philadelphia, Pennsy Ivania

Dear Sirs: |

This is to adyise you that I am applying for _

employment with your Corporation at your

‘New Castle plant. ’

I shall. be available for such employment

with you on.and after November 24, 1956, .

IT am submitting under separate cover (or

have previously submitted) your standard em-

ployment application form, which was majled

to me by your Corporation.’

My submission to you of such application

form for employment .by -your Company is

_ not to be construed as any waiver by me of any

“rights which have aecrued to me or will accrue

to me under the June 1, 1955 contract. by and

between the International Union, United Auto-

mobile, Aircraft and Agricultural Implement

Workers of America and its Local No. 840 and

the Bellanea Corporation and/dr the Labor

Management Relations Act of 1947.

NG seniciniahiabncsaenaainuie

See

Cee Se MOUS ac anccncdndatee

Gaetmnes COP. .......2.<0.-.-

‘Badge Number ..........>- ae

On November 17, the Union forwarded all of these

forms to Piasecki with the following coyering letter

(P. 194a-195a; B. 18b-20b, T3b, 393b—395b, P. 121; 1):

Piaseckt AIRCRAFP CORPORATION ;

- *# * _ * e® *.. +

DeEAR Sirs: ;

In a meeting between representatives of our

Union and the Bellanca Corporation held Fri-

6

-

. ] -

5

day, November 16, we were officially advised

for the first time that commitments and ar-

rangements for your corporation to take over

the ph¥sicil assets of Bellanca’s New Castle

facility, imeluding — real ‘estate, © machinery,

equipment, supplies and certain work in prog-

ress, have been in existence since approxi-

mately November 1. Wewere further in-

formed that you will take physical possession

on November 23, 1956. / } “

Therefore, we are transmitting to you here-

with, 135 letters applying Tot employment at

your New Castle, Delaware plant which have

heen individually executed by the menbers of

Local 840 currently employed by the Bellanca

Corporation at the New Castle facility. An

alphabetical list of the senders of*such letters

is also attached for your convenience of ref-

erence. All of these employees will -be avail-

able for such employment with you on and

after November 24, 1956.

In line with our letter to you: on November

13, 1956, wherein we stated our intention to

cooperate with. you as the successor mahage-

ment of the New Castle plant, we have also

urged our membership to complete and return

to you your standard ‘‘application for.employ-

ment form.” Your Corporation had mailed

such forms to our members at Bellanca on or

about October 30, 1956. We-trust you have

received'same, =v 7

Further, in view of the information, given to

us by Bellanca, we ‘desire to meet with your

representatives on either Tuesday, November

20 or Wednesday, November 21. In such meet-

ing, wecdesire fo discuss your immediate and

G

=.* od

future manpower requirements at the New

Castle plant and make appropriate arrange-—

ments for the recall of Bellanca employees to-

such jobs in accordance with their settiority as

established in the Agreement between Bellanca

Corporation and the International Union, _.

UAW. and its Local 840, dated June 1, 1955,

— and-also to establish a basis for further collec-

tive bargaining between the parties.

Will you kindly advise us promptly as to the

date, place and time you will find most con-

venient for such meeting ?

Piasecki received this letter on Monday, November

19, but made no reply (P. 195a; ‘B. 20b, 335b-337b).

On November, 24, Piasecki advertised in the two prin-

cipal Wilmington newspapers that job applicants

would be interviewed in the New Castle plant the next

day (P. 197a). But when the former Bellanca em--

ployees appeared at the plant on November 25 and 2 in

an effort to obtain job interviews which were being |

- given, petitioner locked them out of the plant (P.197a- .

20la; 218a-227a; 230a-237a). At these. interviews

most of the supervisory personnel of the Bellanca

plant and five of its clerical emploftes were hired by

petitioner (P. 198a, 217a). The plant supervisor of

Bellanca, whom petitioner had rehired, told a union”

representative during the lock-out: ‘‘You know how

[the president of Piasecki] feels * * *.* If you and

the other union guys are really interested in your peo- -

_ple, if you really want to help your people and you want

‘The trial examiner found that Piasecki’s president mani-

fested hostility to the Union throughout his testimony (P. 22¢a-

228a). .

7

them to get in this plant, you will get away from here to-

day’”’ (P. 225a). On the evening of November 26, the

Bellanea employees, having failed to obtain interviews

gr assurance of employment by Piasecki, voted at a.

union meeting to establish a picket line at the New |

Castle plant and to file unfair dabor practice charges

‘withthe Board (P. 201a; B. 145b-146b, 315b-316b).

Picketing started the next day, and was in progress at

all material times thereafter (P. 201a; B. 146b, P.

Tia-78a). |

Though Piasecki admittedly continued to have job

openings “in almost every category;” it still did not

contact the Bellanca employees. Instead, after No-

vember 26, it moved its interviewing facilities to

Philadelphia, over 35 miles from New Castle (P. 203a ;

B. 27b, 44b, 55b). It also continued to run news-

paper advertisements “all the time” to attract addi-

tional applicants for these openings (P. 208a; B.

44by. Finally, on November 30, Piasecki sent a letter

to each of the employees who had formerly worked for

‘Bellanca announcing that interyiews were being con-

ducted every day between 9:00 a.m..and 4 00 p.m. in

; Philadelphia, and informing the recipient that, if he

would present himself there, he would be given ‘*con-

sideration for immediate employment at New Castle’

(P. 202a~206a; B. 376b, 426b). None of the Bellanca

employees appeared for an interview.:

On these facts, the Board concluded that the former

Bellanca employees, had, on or about November 19,

applied for new employment with Piasecki, and that

Piasecki, by locking out the employees and other

action, had in effect denied the applications because

c

-~§.

of their membership in the Union, thereby violating

- Section 8(a) (3) of the Act (P. 232a, 250a).

B.. THE DECISION OF THE COURT OF APPEALS

_ In the court below, petitioner contested the Board’s

Section 8(a) (3) finding and the back pay remedy pro-

vided therefor on two grounds: (1) the refusal to

hire the former Bellanca employees was privileged

because they did not make. an unconditional applica-

tion for new employment, but rather requested their

old jobs, which had been abolished, and conditioned

this request upon Piasecki’s recognition. of the Union,

‘which it ‘was not obliged to grant; and (2) even, if

there were an unlawful refusal to rehire the Bellanca

employees at the’ outset, this was cured by Piasecki’s

offer of November 30, which the employees failed to —

accept. | | |

The court found that substantial evidence sustaine d

the Board’s finding that the Bellanea employces had

applied for new employment (Pet. 3la, 36a). The

court stated’(Pet. 31a) : 7 .

** * All applications were on Piasevki’s »

forms. .At most the letter of transmittal, pre-

pared by the Union, contained nofification that

. the applications were not to be construed as a

waiver of any rights under the Union's contract

°* with Bellanca, and were not conditioned upon a

recognition of tho Union or demands for res-

toration of jobs with appurtenant rights es-

tablished under the Union contract. The work-

ers were applying for jobs with’ a new em-

plover. The confusion which existed in their

minds as to their status was justified by the

turn of events and the realization that the

‘9

Union benefits, which had been theirs for so

» long a period, had been brought to an end

was difficult for them to conceive. Tt ‘was

natural for them to attempt to preserve the

hope that somehow their union benéfits would

survive Piasecki’s purchase of | Bellanca.

Therefore, they made it clear that their appli-

cations should not. mean that they waived any-

thing that might inure to them thereunder.

This certainly did not detract from their un-

conditional applications for jobs. °

The Court further found that, in the circumstances

of this case, the Board could properly conclude that

the initial discrimination was not cured by Piasecki’s

job interview offer of November 30 (Pet. 51a):

&

~The former Bellanea workers, long repre-

sented by the. Union, undoubtedly felt ties to it

and it is not strange that they should have asso-

ciated themselves with it in their endeavor to.

achieve continuity of piss dee with Pia-

secki. On both November 25 and November 26

it was made known to them that such associa-

tion made them ineligible for work in the eyes

- of Piasecki, The incidents on these days pre-

clude the idea that upon presenting themselves

for interview they would achieve employment

notwithstanding their union memberships.

Enough had occurred to convinces each worker

of the futility of making any such attempt. The

advertisements requiting the workers to report

to the Philadelphia plant for interviews and the

invitations addressed to them on November 30

did not serve to dispel the definite convietion

firmly fixed that former Union members would

not be granted employment." " *

° 10 -

ARGUMENT

4. Petitioner's contention (Pet. 10-13) that the

former Bellanca employees did .not make an uncondi-

tional application for new employment, but. requested

reinstatement to thei? former jobs, raises only. an evi-

dentiary question which does not warrant review by

this Court. There is no conflict with any prior deci-

sions, for the cases cited by petitioner (Pet. 10) in-

valved situations where the employees were found to

have demanded reinstatement to their former jobs.

Since the “Board found—based: on ample. evidence

(see. supra, pp. 3-7)—that the employees here ap-

plied for new employment, those decisions are dis-

tinguishable on their facts, as the court below specifi-

cally recognized in differentiating its own earlier hold-

ing in’ National Labor Relations Board v. Textil Ma-

chine Works, 214 F. 2d 929 (Pet. 36a). Nor is there

merit to petitioner’s suggestion. ( Pet. 10-11) that the

court ‘below departed from the objective standards

used in the earlier causes by making a “subjective” in-

quiry into the employees’ state of mind. Rather, the

Board's finding largely rests upon an. interpretation

of documents which the employees’ sent to petftioner.

2. It’ is a settled principle that employees unlaw-

fully refuséd employment need not make further ap-

plications for work where the cireumstances indicate

that these attempts would also be futile.6 Thus,

*See National Lahor Relations Board v. Swinerton, 202 ¥. 24

511, 515 (C.A, 9), certiorari denied, 346 U.S. 814; National Labor

Relations Board v. Arthur G. McKee & Company, 196 F. 2d 656

(C.A. 5), enforcing 94 NLRB 399, 413-444; National Labor Re-

lations Board vy. Daniel Hamm Drayage Company, 185 F.2d 102°

' (C.A. 5), enforcving 84 NLRB 428, 460, + .

11

whether petitioner's liability for reinstatement and

back pay to the employees unlawfully refused employ-

ment on November 25 and 26 was tolled by the Novem-

ber 30 invitation to them to apply again for work, de-

pends on whether the circumstances here justified the

conclusion of the Board and the court below that the

employees eould reasonabl? view the new invitation

as still contingent upon their abandonment of the

Union. This-is likewise an evidentiary issue which

does not warrant review by this Court.

In any event, the Board's conclusion was clearly

a permissible one. As the trial examiner found (P.

2a2a): ‘it is manifest * * * that the [petitioner |

was determined at all Coasts to avoid firing the Bell-

. anca‘employees who were associated with the Union

and the employment of whom ‘in, large numbers would

result in the [petitioner ‘s] being saddled with a union

majority and the “obligation to bargain with the

UAW.” -This attitude was clearlysrevealed to the

former Bellanca employees by the lockout on No- -

vember 25 and 26 and the failure of their other e fforts

to obtain employment or even interv iews: The only

change indicated by petitioner, between its earlier in-

vitation for interviews which resulted in the lockout

and the invitation of November 30, was to shift the

interviews from the New Castle piant itself to Phila-

delphia, over-35 miles away. Thus the employees had

‘no reason to believe that: petitioner had altered its

position and would hire them despite their -Enioen

membership.

; ». ;° @:

- Petitioner’s contentiqn (Pet. 13-16) that the record

does not show the November 30 offer to have been in

bad faith is beside the point. The issue is not whether

there was anything unlawful about the offer, but .

_ whether it was sufficient to apprise the employees that.

petitioner had abandoned the discriminatory “hiring:

policy manifested only a few days earlier. Because

it was not sufficient, it cannot, no matter how well in-

tentioned, alter petitioner’s back pay liability.

- CONCLUSION

For the foregoing reasons, it is Tespectfully sub-

‘ miitted that the petition for a writ of certiorari should

- be denied.

| J. LEE RaNnkIN,

Solicitor General. |

Stuart RorHMan, i

General Counsel,

Dominick L. MANOLI, !

Associate General Counsel,

Norton J. Come,

Assistant General Counsel,

RicHARD x ScuPt,

A ttorney,

National Labor Relations Board. wy

DECEMBER 1960.

8 GuvEP@weme Pe TING OFFICE. 1960