Respondents Brief in Opposition — Allis-Chalmers Manufacturing Co. v. Local 248, United Automobile, Aircraft & Agricultural Implement Workers

capi el FILED

one MAR 18 1961

is JAMES R. BROWNING. Clerk

te we 3 Be

_ SIE cou OTHE WAITED STATES,

OCTOBER Tenw, 1960.

Nos. 760, 761.

“WISCONSIN EMPLOYMENT RELATIONS BOARD,

eo lle.

. Ve

LODGE. 0 of the INTERNATIONAL ASSOCIATION

OF MACHINISTS, AFL-CIO,

Respondent.

“On Petitions for Writ of Certiorari to the

Supreme Court of Wisconsin.

“IN OPPOSITION.

overt E. GRATZ,

_ Attorney for Respondent.

P, 0. Address: *. : ‘ ~

507 Brumder Building,

185 West Weils Street,

Milwaukee 3, Wisconsin.

Sr. Louis os Ciintral 1-4477.

_>

INDEX.

Page

Be a eer ae - niga =k

OE re ee eee 2 : ?

Question ON oe og Se eee 6S 3

POP eee eee eee Messe 5 2

Se ies iad cab phe ace 2,5:5 Uae cain Pee. at

Rae a aaa aha ard ee Wace a ne 8 bens ave 0

I. The Decision Below Is Clearly Correct . 2.0.0... ()

Il. There Is No Confliet of’ Decision 2.0.0.0... 4... 10

IIL. There Is No Important Question of Federal Law = 10

Conclusion sade Me Apo ob, Set A EVE Orne ae ge ay PPE GAL Peano 11

Cases Cited.

Allen-Bradley Co. (1960), 120 NOT. Re BONG 7

Bandlow et-al. v. Ferton (1959), 38 Labor Cases par.

reat. A OC. Ded. of WoL) ...... 22.8... 4

Bandlow et al ve Rothman (loG0), 278 FL (2d) 866

A. ae 2k SS uk Pee ee ore 4

Dooly y. Anton (1960),8 N.Y. 2d 91, 168 Nob. (2d) 285600 10

fiarer v. Teamsters (1953). 346 UL S485 0000, y

Internat’) Typographical Union (M49), 86 NOLOR. B.

RN eae ee ee I en ke BES os Sia piore-G wee 5s 1

Machinists v. Gonzales (1998), 3560. > ae m0, 102

Minneapolis Star and Tribune Co. (1954). lOO NLR. B.

-.)- . ; _

i a ee a ee ee i oe a ee ee ee ee ee ‘

ee 3 B. v. Insurance Agents (1960), 361 U.S. 477° 8

N. LS R. Bo General Counsel Opinion F-1osS, October

2x, 1057 —> os. Se Se Ok ee oe ee ee ee a a ee a ea ee en er a ee ee | oe me QD

bes > _ . .

. *

- * ~ _ .

7 ° ; a

. é . nae atc heal te “

. . 7

. : :

‘ii

Sanders y. International Association of Tron Workers

“+ (1956), 235 Fed. (2d) 271 (CA—6) ...... reer ;

Sean Diego Building Trades Council v. Garmon (1959),

er eo Oe eee 6, 7.8910

Statutes Cited.

Federal Statutes:'

Labor Management Relations Act of 1947, as

amended: + ab: ae

CE Eo ee een Se oe ee - re

POT ic vw dae chet Jey beta en eee 7.

. | aes ea eee seyeee ee

Section 8 (b) (1) (A5

Labor Management Reporting and Disclosure Act

of 1939. - |

Section 603 (1)

mf

IN THE

sure COURT OF THE UNITED STATES.

OCTOBER TERM, 1960.

Nos. 760,761. - ..

WISCONSIN EMPLOYMENT RELATIONS BOARD,

_ Petitioner,

Vv.

LODGE 78 of the INTERNATIONAL ASSOCIATION

OF MACHINISTS, AFL-CIO,

Respondent.

On Petitions for Writ of Certiorari: to the .

«Supreme Court of Wisconsin.

.

BRIEF FOR RESPONDENT»

IN OPPOSITION.

i ° _

OPINIONS BELOW.

The opinion of the Wisconsin Supreme Court? is printed

in 1] Wis. 24° 292, 105 N. We 2d 278. Sinee this case was

argued as a companion case, the principal opinion of Wis-

cousin Supreme Court is reported in 11 Wis. 2d 277. 105

oN W. 2d 27

t

at ’

Opinions of the circuit court ‘of Milwaukec County

covering this and companion ease are reported at 46 L. R.

R. M. 2628. The orders and accompanying memoranda

opinions of the Wisconsin Employment Relations Board

are unreported. .

All of the above opinions have been reproduced in th

separate appendix of the Petitioner W. EB. R. Bs and all

references to state court opinions will be in reference to ”

where the opinions appear -in such appendix.

The ‘original findings and order of-the W. EF. R. B. are

not contained in the appendix of the W. FE. Re B. and are °

unreported. These findings and order are printed in the

record filed herein at pages 150-153, and are therefore not

reproduced,

JURISDICTION.

The jurisdictional requisites are adequately set* forth

in the Petitions.

_ QUESTION PRESENTED.

Does a state board or court have jurisdiction to pro-

hibit activity of a union representing employees of an

interstate employer in view of the fact that legality of

such activity must be determined by application of the

National Labor Relations Act, as amended?

STATUTES INVOLVED.

The pertinent provisions .of the National Labor. Rela-

tions Act, as amended, and the Wisconsin Employment

Peace Act are adequately set, forth in the Petitions.

on

STATEMENT. . .

Lodge 78, I. A. M. is the certified bargaining agent for

employees employed in the tool room of the Allen-Bradley

Company (R. 179). This company is one whose business

. affects interstate commerce within the meaning of the

‘Labor Management Relations Act of 147, as amended (R.

181). |

On September 1, 1956 a strike was called among these

employees (R. 179). During the course of this strike

fourteen .employees, also union members, crossed the

\ .

picket line and went to work (R. 179). Subsequent to

termination of the strike, these members Were tried for

conduct unbecoming members according to the constitu-.

tion. of the union and fined $100.00 (R. 180).

‘All of these cumhepess were voluntary members of the

union whose membership was terminated for failure to

‘ pay periodic dues (R. 181). At no time has the union

- attempted ‘to interfere with the job rights of these em-

ployees (R. 181). vs Dg

In December, 1956, éach of these fourteen employees

received demand from eounsel for the union for payment

of. the fines (R. 180). Oni. January 24, 1957, the inion

commenced fourteen separate actions in the Civil Court of

Milwaukee’ County to collect these fines. These actions

are still pending (R. 180),

All fourteen of these anikinees: filed untair labor prac-

tice charges with the National Labor Relations Board (Re

181). The General Counsel of the National Board refused

to issue complaints on, October 28, 1957 (Opinion F-198)

(R. 180), Twelve of the fourteen employees then filed

identical unfair labor practice complaints: with the Wis-

consin board, claiming the union, in fining its members,

committed unfair labor practices under Wi iseonsin law

.(R. 142-144). The anion claimed in its answer that its

activity was either prohibited or protected under the fed-

“vr

eral Act, and that the state board therefore had no 7

‘tlietion (R. 146, 147).

On November 21, 1958, after hearing by the state board,

said board by unanimous decision dismissed: the twelve

complaints on the grounds that the federal Act preempted

the union activity and that the state board had no juris-

diction (R. 150-153). After motion for rehearing, the state

board amended its: findings and order, and, by two to one

decision; found the ynidh guilty of committing a state

unfair labor practice (B/ 154-158). :

The union appea d from this order, pedicating its

appeal, inter alra hat'the state board had no Jurisdiction

‘over the subject matter’ in that same was preempted and

~pecifieally protected by the federal Act (R. 178).

This appeal was determined by the Cirenit Court of

Milwaukee County, whiel’ found no preemption or contlict

and sustained the jurisdiction and order of the. state |

board (W. BE. R. B. App. pp. 30-46). The union appealed

this judgment, and the Wiseonsin Supreme Court unani-

mously ever: ed the’ cireuit court and state board and

held there was preemption, and that the state board had

no jurisdiction (W. E.R. B. App. pp. 1-20). At the, time

of argument before the Wisconsin. Supreme Court, all

parties agreed that the union committed no violation of

the federal Act. heeause otherwise there ‘would clearly he

preemption (W. E.R. B. App. p. 7).

Coneemitant with the filing of complaints with the state

‘ board by twelve employees, the remaining two employees

commenced an action in federal District Court in. Wash-

ington, D. C. to compel the General Counsel of the Na-

tional Board to issue complaints (R. 181). Both the Dis-

triet Court and Cireuit Court of Appeals refused to ¢ompel

the General Counsel to issue complaints under the federad

| Act."

*

° Randlo: et ai 7. Fenton (1939), 38 Labor Cases, par 63,77"

(ULSD C. Dist. of Col ys Bandlore ettal. 2. Rothman et al (108,

278 F.-¢ 2d) Rob (CL AL Dist. of Cob). a

-

ARGUMENT.

~ Thé-issue in the case at bar is aniique Iv narrow and re-

stricted. Neither seatter-gan technique nor strained <6

manties ex convert it into one warranting review by thi-

Court on “certiorari. The state court defined the federal

question as “whether Congress by insertion of such previse

[referring to 8 (b) (1) (A)] intended to make <ueh an

activity a protected one, or whMher it intended that <neh

union conduct should remain offside of the scope of Con

gressional regulation so that the states might regulate if

tlley so desire” (W. E.R. B. App. p. 7). j

At the state court level, Petitioners agreed that the

union activity complained of was embraced within’ the

scope of the proviso (W. FE. R. B. App. p. 7). Had these,

been no such agreement, then there clearly world he

preemption because the union condnet would be prohib:

ited under the federal Act as well as under state law.

Garner v. Teamsters (1952), 346 U.S. 485. wae

Despite this agreement, Petitioners now contend that the

union activity here involved is prohibited by the federal

Act, and that this Court should therefore grant certiorari.

Since the state. court did not rule’on this issue, it ix not

properly before this Coart for review on certiorari or.

. . e

otherwise.

It must be further noted that the individual Petitioner

filed charges with the National Labor Relations Board

(hereinafter referred to as “N. L. R. B.") before proceed

ing to the state labor board and state courts. On October

38. 1957 (Opinion F-198), the General Counsel ot. the

*N. L. Ro B. dismissed the charges on the ground tat the

conduct.of the union was exeladed from the definition of

unfair practices under federal law by the proviso te see,

¥ (b). (1) (A). It appears conclusi ely that after sneh

. determination by the General Counsel the individual Peti-

tioners relied solely on state law for vindication of their

%

.

¢

‘

— oe

claims. Where the state court predicated its determina-

tion on agreement by Petitioner that the federal Act did

not prohibit the union conduct, Petitioners cannot now

seek to reverse the dismissal by the General Counsel of

the N. L. R. B. by seeking a review of. the state court de-

efsion.

The Petitioner, Wisconsin Employment Relations Board

(hereinafter referred to as “W. E.R. Bo", has also: at.

tempted to inject another issue not determined by the

xtate court. On pages 8 and 9 of its Petition, Petitioner

W. E.R. B. asserts that the decision of the state court con-

‘fliets with the Labor Management Reporting and -Dis-

vlosure Act of 1959. The state court's. decision was lim-

ited to rights protected under the National Labor Rela-

tions Act, as amended. Section 603 (b) of the moyenne

-nd Disclosure Act of 1959, provides:.

“nor shall any thing contained bes enki titles Toe

cept section 505) of this Act -he construed to confer

anv rights, privileges, immunities, or defenses upon

employers, or fo impair or otherwise affect - ‘the rights.

of any person under the National Labor Relations Act,

as amended.” |

‘Inasmuch as the state court's decision was predicated

sadely on rights protected under thé National. Labor Re-

‘lations Aet, other issnes are not properly before this Court. -

‘yy review.” The very Act relied upon by Petitioner, saheretal

~ rates that this is manifestly correct.

f

I.

‘The Decision Below Is Clearly Correct.

_ The state court complied nathan with the juris:

me ‘jonal guide posts established by this Court in San

Dieyo Building Trades Council v. Garmon (195%), 35!

Uli, 336. In applying the test of preemption the state

court found that the union. activity one cna of was

“arguably. within the compass of sec. 7 or sec. 8” of the

federal Act. This findifig was predicated upon bea Cases:

Sanders v. International Ass'n. of Iron Workers (1130),

23d. Red. (2d) 271 (C. A. 6); Alien Bradley Company

(1960), 127 N. L. R. B. No. 8; Minneapolis Star and Trib-

une Co. (1954), 109 NOL. ROB. +27; and Internat’i.. Typo-

graphical Union (1949), 86 N. 1. RB. B. 951.

These cases clearly. demonstrate that the No ob. ROB.

interprets the prov iso as having the effect 6f making the

enforcement by a union of its own constitution - and by-

laws a protected activity under the federal Act. ‘The

‘state court reviewed these cases’(W. EB. R. B. App. pp.

et. and further determined that such interpretation

wes ‘permissible’, especially | since Congress used thie

word ‘right’ when ‘referring to the union ae tivity of

prescribing rules for aciuisition ane retention of member-

ship.

Petitioners now - contend that this Court: sheuld interprnt

the proviso to give the states jurisdiction, Such request

_ 18 clearly contrury to/Garmon. Assumine that the de-

~~ cisiors relied upon by the state ‘court do net determine

with “‘unclouded legal significance’? that the activity here

ix protected, this still does not-lnave state labor boards -

or courts jurisdiction to determine the status of the ac-

tivity. This Court in Garmon, 359 U.S. at 246, stated:

‘2. . Tt follows that the failure of the Board to

define the legal significance under’ the Act of a par-

ticular activity does not give the States the power

to act. In the absence of the Board's. clear deter-

mination that an activity ‘is neither protected nor

prohibited or. of compelling precedent applied to

essentially undisputed facts, it ix not for this Court

to decide whether such activities are subject to state

jurisdiction. The withdrawal of this narrow area

fram possible state activity. follows our decisions in

—_—

Weber and Guss. The governing consideration is that

to allow the States to control activities that are po-

‘\tentially subject to federal regulation involves too

great a danger of. conflict with national labor policy.”

- - There are no. National Board cases cited by Petitioners

~ that purport to define the, activity of the union as not pro-

tected under the proviso to 8 (b) (1) (A) of, the federal

_ Act. Alternatively, the disputed activity is ‘‘arguably”

protected or there has been no determination by the N. L.

R. B. which precisely defines the legal significance of such

activity. The states can have no jurisdiction to determine:

in which area the Sopeied activity falls. |

Petitioners cite’ numerous decisions of - this Court and

the eminent Professor Archibald Cox that state courts

and this Court on review decided whether particular ae-

tivities were within the purview of Sections 7 or & of the

federal Act. This approach is ‘‘no longer of general ap-

plication’’ since questions of interpretation of: the federal

Act are committed in the first instance to the administra- *

tive processes of the National Board. Garmon, 359 U. S.

Ye: 245, n. 4. Obviously the cases relied on. by Hetitioners ‘

(and the statement of Professor: (ox) antedate the pre-

emption approach adopted. by this Court. Petitioners still

_assert that this Court should ‘‘compouna the defects of a

+ ° now diséarded approach to preemption.’’ N. L. RB. B. v.

Insurance Agents (1960)),361 U.S. 477...

”. The state court correctly applied’ Machinists v. Gon-

gales (1958), 356 U. S. 617, in conjunction with Garmon in

» deciding that the-state labor board had no jurisdiction.

\ ° “s ° P

The state board, in an unfair labor practice proceeding."

‘ ;

' In, thecase at bar individual Petitioners filed unfair labor >

practice charges before the W. E. R. B. not for assessment @f dan-

ages nor enforcement of: private contractual rights created by the

> union constitution, but in reliance upon exercise of. power by the

state board in enforcing state labor policy. This Court acknowledge:

» this hasig distinction in Gonzales, 330 U.S. at 622, footnote. .

ay mT aes

attempted to ‘regulate the vital economic irwiionts of

the strike and picket line and impinge onthe clash of-atill

unsettled claims. between employers and labor unions."'

_ Garmon, 359 UAS. at 241. ks

In rendering its decision, the state court correctly Mund

that the activity which the state board attempted to reen-

' ldte was not “merely peripherat’’ but regulated the very

heart and guts of activities regulated by Sections 7 and

Sof the federal Act (W. E.R. B. App. pp. 10-12). The

right of the union to impose a fine upon a “member for

going through (a picket line certainly affects in ultimate

result the success of the conflict between the anion and

~ company in collective barfaining ‘as well as it affects the

“exercise of. rights. to engage in concerted activities pro-

tected by Section Z of the federal Act The petitioning

state hoard candidly admits that the state: regulation here

was specifically designed for tlio very purpose of affegting

the balance of bargaining power (W. E.R. B.: Petition,.

p. 10) Such attempt by the state “involves too great a

danger of conflict with national labor policy.** Garmon,

399 U.S. at 246. ; oi

om

Grave concern is @xpressed by Petit‘oner that because

the subject matter in ‘the case at bar is preempted, all

— etal e My r ° bs ° =.

jurisdiction is lost by the state in proceedings pertaining

to @ union’s constitution and by-laws. ‘The decision of

- the state court clearly states otherwise. .

The state court's decision unequivocally recognizes that

in those areas of “merely \péripheral concern” to ‘the fed-

eral labor Act, the states still have jurisdiction AW. FE. R.

B..App. pp. 9-10).° This historical application of common

law by the state, and acknowledged by this Court in Gon-:

tales, will still be applied by the state inethose “peripheral”

areas where the contractual rights arising out of the union

constitution “are too remotely related to the public interest

sought to be protected by the Labor Management Rela-

. —h-- - [

tions Act to require a holding that there exists preemption

under such Act” (W. E.R. B.: App. p. 10)... The Wisconsin

court has been rarely reticent in utilizing the full measure

of allowable state jurisdiction in the labor matters. Based

on the state court's clear assertion inthe case at bar, Peti-

tioners’ fears are patently groundless. ~ tos

> \ :

There Is No Conflict of Decision.

Conflict of decision within a particular state is resolved

by the state supreme court. In the case af bar the Wis-

_ consin court has determined with clarity and certainty

thatthe W. BF. R. B. and Wi isconsin courts may function

in the “peripheral” areas; and the state court, in con-

formity with Garmon and. Gonzales, has delimited state

’ board and. court jurisdiction where state control “involves

too great A danger of ‘conflict with national labor policy. s

- Garmon, S59 FOS. at 246.

The Prtitionsrs have "cited no contrary decisioy in any

other state in conflict with the Wisconsin court's preeniyp-

tion determination. On the, contrary, since Garmon other

states have complied with this Court's new approach: Nw:

Dooly v. Anton (1960), 8 N.Y. 2d 99. 168 NOE. (2d )e6.

There is no need for this Court to resolve a conflict tha

does not. exist. a —— re

Til.

There Is No Important Question of Federal Law.

This Court in Garmon, 359 U.S. at 246, recognized tht

it-was withdrawing a ‘‘narrow area*’ from possible state

control where gre National, Board had not determined with

“unclouded legal signifieance” that a particular activity is

within or without federal régulation. Since the activity

: — 2 4

—MN=

here falls within this “narrow area”, there is no impelling

consideration shown by Petitioners that ultimate resolution

‘of this activity should not he made by the exclasive pri-

mary agency entrusted with. administration of the federal

Act—the National Labor Relations Board.

CONCLUSION.

For the foregoing reasons it is respectfully submitted

that the petitions for a writ of certiorari should be denied.

Respectfully denned:

s

ROBERT E. GRATZ,

. . Attorney for Responifent. -

*

coe.