Brief for the Respondents in Opposition — Heilig Bros v. National Labor Relations Board

INDEX

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CITATIONS

Cases:

California v. Latimer, 305 U. S. 255_.-...._-......________ 6

Matter of Ford Motor Co., 31 N. L. R. B. No. 170__________ 8

National Labor Relations Board v. Jones & Inaughlin Steel

INI: Metals asl cae LL i 6

National Labor Relations Board v. Virginia Electric & Power

I TY ie I ieiessciesctn celincnscmeninccincdbeesbibias ode ia a 7

Phelps Dodge Corp. v. National Labor Relations Board, 313

Fae a aaah teinsiieipiieineil-onicts ctguciracarcicibniacasindtatas cd eds aninn. 8

United States y. oc, fess cap fe ee RM 6

United States v. Heinze, 218 U. S. 532 cc teligics aa diiig ieilaa te! 6

Statute :

Judicial Code:

stpaplpeatcs Abana gO EEE TET 5

Sec. 240 (a), as amended_________ <cclisaanlelnia alah pianos aoa 5

United States Code, Title 28, Sec. 350....--...--... 5

(I)

463133—42

Meni rar ete

SESH

Guthe Supreme Court of the Wnited States

OctToBER TERM, 1941

Nos. 1199 and 1200

Het.ia BrorHers Co., PETITIONER

wv.

NATIONAL Labor RELATIONS BoaRp

ON PETITION FOR WRITS OF CERTIORARI TO THE UNITED

STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA AND TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the District Court (Pet., 46-47) is

reported in 42 F'. Supp. 311. The per curiam opin-

ion of the Circuit Court of Appeals for the Third

Cireuit (R. II, 101)* is reported in 123 F. (2d) 734.

* Pursuant to stipulation of the parties (R. II, 107-114),

the printed record for purposes of the petition for certiorari

consists of the Appendix to the Board’s brief in the Circuit

Court of Appeals, referred to herein as “R. I”; and desig-

nated portions of the stenographic transcript of testimony

and the proceedings in the Circuit Court of Appeals con-

tained in “Vol. 2,” referred to herein as "as ae

(1)

4

;

3

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Len aie

aaa Ma

Ha ENDL TALE St RNS D

aes Raa

2

The findings of fact, conclusions of law, and order

of the National Labor Relations Board (R. I, 185-

221) are reported in 32 N. L. R. B., No. 108.

JURISDICTION

The order of the District Court (Pet., 47) was

entered on December 10, 1941. No appeal was

taken from this order. The decree of the Circuit

Court of Appeals in a separate proceeding was en-

tered on January 31, 1942 (R. II, 105-107). The

petition for writs of certiorari was filed on April

30, 1942. The jurisdiction of this Court is invoked

under Section 240 (a) of the Judicial Code, as

amended by the Act of February 13, 1925.

QUESTIONS PRESENTED

1. (a) Whether a United States district court

had jurisdiction, during the vacation of the courts

of appeals, to entertain a petition for review filed

by petitioner under Section 10 (f) of the National

Labor Relations Act.

(b) Whether this Court has jurisdiction under

Section 240 (a) of the Judicial Code, as amended, to

issue a writ of certiorari to the district court to

review its order dismissing the petition for review.

2. Whether the circuit court of appeals erred in

refusing to stay a proceeding for enforcement in-

stituted by the Board, pending the determination

of petitioner’s review proceeding in the district

court.

UGA

3

3. Whether the circuit court of appeals erred in

denying petitioner’s application for rehearing.

4, A question urged by petitioner but which we

think is not properly presented because not urged

before the Board or the circuit court of appeals

is whether the Board may direct an offer of rein-

statement without finding that the men ordered

reinstated have not obtained equivalent employ-

ment elsewhere and without directing that they

first attempt to secure equivalent employment else-

where.

STATUTE INVOLVED

The pertinent provisions of the National Labor

Relations Act are set forth in the Appendix to the

petition, pp. 48-50.

STATEMENT

After the usual Board proceedings, the Board,

on June 10, 1941, issued its findings of fact, con-

clusions of law, and order (R. I, 185-221). The

Board found and concluded that petitioner had en-

gaged in certain unfair labor practices affecting

commerce (R. I, 189-214), and directed that peti-

tioner cease and desist therefrom, offer reinstate-

ment to employees who had participated in a strike

caused by petitioner’s unfair labor practices, and

take certain other affirmative remedial action (R. I,

212-213, 214-215).

On August 14, 1941, petitioner filed in the United

States District Court for the Middle District of

Pennsylvania a petition to review the Board’s order,

4

asserting that that court had jurisdiction because

both the Cireuit Court of Appeals for the Third

Circuit, in which circuit petitioner resides and

transacts ‘business, and the Court of Appeals for

4 the District of Columbia were then in vacation

(Pet., 27-31). On September 11, 1941, the Board

é filed in the district court a motion to dismiss the

3 petition for lack of jurisdiction (Pet., 36-41). On

d December 10, 1941, the district court handed down

an opinion and entered an order granting the mo-

‘ tion and dismissing the petition to review (Pet.,

46-47). No further proceedings were had in the

district court and no appeal was taken from the

district court order.

Meanwhile, on October 7, 1941, the Board filed in

the United States Cireuit Court of Appeals for the

3 Third Circuit a petition to enforce its order against

: petitioner (R. II, 87-90). Petitioner applied to

the circuit court to stay this proceeding pending

the determination of the proceeding in the district

court (R. II, 91-97); the application for a stay

was denied by the circuit court on October 21, 1941

(R. II, 98). On December 17, 1941, the circuit

court heard argument on the merits (R. II, 100-

101) and on January 2, 1942, handed down a per

curiam opinion sustaining the Board’s order in

full (R. II, 101). <A petition for rehearing filed by

petitioner on January 17, 1942 (R. II, 102-104)

avas denied by the circuit court on January 31, 1942

(R. II, 105). On the same day, the circuit court

entered a decree of enforcement (R. IT, 105-107).

instedhiin yc

5

ARGUMENT

1. The petition in No. 1199 for a writ of cer-

tiorari to the United States District Court for the

Middle District of Pennsylvania should be dis-

missed since this Court lacks jurisdiction to issue

its writ to a district court. Section 240 (a) of the

Judicial Code, as aménded, which petitioner in-

vokes (Pet., 11-12), does not apply to a case in a

United States district court but only to a ease ‘‘in

a circuit court of appeals, or in the United States

Court of Appeals for the District of Columbia

* * *% Nor does any other statute of the

United States make provision for the issuance of

a writ of certiorari to a United States district

court.” Cf. Section 238 of the Judicial Code, as

amended. An additional reason requiring dis-

missal is that the petition for a writ is not timely

(28 U.S. C. § 350), for it was not filed until more

than three months after December 10, 1941, the

date of the entry of the order, review of which is

sought (supra, p. 4), and without any extension of

time for filing being granted by a justice of this

Court.

Moreover, petitioner’s contention that the dis-

trict court has jurisdiction to entertain review pro-

ceedings while the courts of appeals are on vaca-

tion, raised in both No. 1199 and No. 1200, is with-

* The writ may be issued to a circuit court of appeals

before argument if the case is in that court (sec, 240 (a)),

but here no appeal was filed.

«

‘

3

2

6

out foundation. Although Section 10 (e) of the

National Labor Relations Act permits the Board

to bring enforcement proceedings in the district

courts while the courts of appeals are on vacation,

Section 10 (f) contains no such provision and limits

aggrieved persons to review in the courts of ap-

peals. There is no constitutional or logical re-

quirement of mutuality, guaranteeing to a respond-

ent and to the Board identical access to the courts

during vacations. Cf. United States v. Bitty, 208

U. S. 393, 399-400; United States v. Heinze, 218

U. S. 532, 545-546. The special procedure open

to the Board is obviously created because of the

possible need for immediate enforcement of the

Act in special circumstances. The same need can-

not arise for a respondent who is subject to no

penalty for noncompliance with a Board order

prior to judicial affirmance. Cf. National Labor

Relations Board v. Jones & Laughlin Steel Corp.,

301 U. S. 1, 47; California v. Latimer, 305 U.S.

255, 260.

2. The petition in No. 1200 for a writ of certiorari

to the United States Cireuit Court of Appeals for

the Third Circuit presents no question worthy of

review :

(a) Petitioner’s contention (Pet., 2-3, 4-5, 7-8)

that the circuit court erred in denying petitioner's

application for a stay of the cireuit court proceed-

ing pending the outcome of the district court pro-

ceeding (supra, p. 4) is without merit. The pro-

ceeding in the district court was a nullity for, as we

7

have shown, that court had no jurisdiction over the

subject matter (supra, pp. 5-6); the cireuit court

was not required to hold up the legitimate proceed-

ing awaiting the dismissal of the obviously illegit-

imate one. Moreover, the circuit court did not

finally act to enforce the Board’s order until the

district court had dismissed that proceeding

(supra, p. 4). In any event, petitioner suffered

no prejudice by the denial of the stay, as demon-

strated by the ultimate result in both courts.

(b) Petitioner’s contention (Pet., 3, 5-6, 8) that

the circuit court erred in denying petitioner’s ap-

plication for rehearing in the face of petitioner’s

citation of National Labor Relations Board v. Vir-

ginia Electric & Power Co., 314 U.S. 469, which was

not earlier available, is without basis. The Board’s

findings as to interference are amply supported by

evidence apart from the bulletins published by pe-

titioner’s officers. Furthermore, the Board’s deci-

sion contains the findings lacking in the Virginia

Electric case interpreting the published statements

in the context of petitioner’s other anti-union con-

duct (see R. I, 195-209). Petitioner makes no ef-

fort to show the contrary.’

‘The argument seems to be not that the Virginia Electric

case necessarily required a different decision in the instant

case, but that the court erred in refusing to grant a rehearing

to consider its effect. A rehearing is not required merely

because this Court renders a decision on a subject after

argument in the circuit court of appeals. Nor can it be

assumed that the court below failed to examine the Virginia

Electric opinion before denying petitioner’s application for

rehearing.

we OAS ERED eo BEM he yee

casita seit

8

(c) Petitioner’s final contention (Pet., 3, 8-9, 14,

24-25) that the Board lacks power to order rein-

statement of persons without a finding that they

have not obtained other equivalent employment

and without a direction that they attempt to

secure equivalent employment elsewhere prior to

an offer of reinstatement, is not properly before

this Court, for the question was never raised before

the Board or in the court below.‘ Moreover, the

contention is clearly unsound. Petitioner cites

Phelps Dodge Corp. v. National Labor Relations

Board, 313 U. S. 177 (Pet., 24-25): but that case

expressly affirms, not denies, the Board’s power to

order reinstatement even if equivalent employment

has been obtained.’ And the Board certainly need

not, in the absence of a statutory requirement, make

affirmative findings on points not disputed before

it.

‘Section 10 (e) of the Act provides: “* * * No objec-

tion that has not been urged before the Board, its member,

agent or agency, shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused

because of extraordinary circumstances. * * *”

® Since the Phelps Dodge decision, the Board, pursuant to

this Court’s affirmation of its power, has exercised its dis-

cretion concerning the appropriateness of such relief and

has held that effectuation of the Act’s policies requires that

an offer of reinstatement be made in all cases despite the

obtainment of equivalent employment. Matter of Ford

Motor Co. and International Union United Automobile

Workers of America, Local Union No, 249, 31 N. L. R. B.

No. 170, decided May 21, 1941.

PE ee

9

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that the petition for a writ of certiorari to

the district court should be dismissed, and that the

petition for a writ of certiorari to the circuit court

of appeals should be denied.

CHARLES Fany,

Solicitor General.

Rosert L. Stern,

Attorney.

Rosert B. Warts,

General Counsel,

Ernest A. Gross,

Associate General Counsel,

Morris P. GLUSHIEN,

RutH WEYAND,

Attorneys,

National Labor Relations Board.

May 1942.

U.S. GOVERNMENT PRINTING OFFICE: t942