# Respondents Brief in Opposition — Allis-Chalmers Manufacturing Co. v. Local 248, United Automobile, Aircraft & Agricultural Implement Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0852%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief in Opposition - **Published:** January 1, 1961 - **Citation:** 365 U.S. 878 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0852%3A4. Public record. Not legal advice.