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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_1092%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondents in Opposition
- **Published:** January 1, 1942
- **Citation:** 316 U.S. 701

## Text

INDEX
Page
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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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_1092%3A4. Public record. Not legal advice.