Reply Brief — Heilig Bros v. National Labor Relations Board

as a rag age

© IO Al

AAY 30 1942

bea “MAY oO JS

CHARLES Clagae CAOPLEY

Supreme Court of the Anited States :

Octoser Term, 1941.

ii

Nos. 1199 anp 1200.

a

+

HEILIG BROTHERS CoO.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD.

REPLY BRIEF OF PETITIONER.

Joun F. Dumont,

Little Falls, New Jersey ;

Joun A. Hooper,

York, Pennsylvania,

Counsel for Petitioner.

Harry NADELL,

Paterson, New Jersey ;

Epmunp M. Touanp,

Washington, D. C.,

Of Counsel with Petitioner.

|

Pandick Press, Inc., 22 Thames St., New York, U.S. A.

aw FoF ORS SPERM TA Ass Dot a 0% Ne ALAS ABT OATS TEN a SLL N

Supreme Court of the Gnited States

Octroser TERM, 1941.

Nos. 1199 anp 1200.

Hemic Brotruers Co.,

Petitioner,

vs.

NatronaL Laspor Retations Boarp.

REPLY BRIEF OF PETITIONER.

Petitioner, Heilig Brothers Co., submits the following

brief in reply to the answering brief of the National Labor

Relations Board, filed May 28, 1942.

This case brings up two phases of the same matter:

(1) the refusal of the District Court to review the order

of the Board during the vacation of the Circuit Court of

Appeals; (2) the subsequent enforcement of the order of

the Board by the Circuit Court of Appeals. The essential

similarity of these two aspects of the same question is

emphasized by the decision of this Court in National Labor

Relations Board v. Jones & Laughlin Steel Corp., 301 U. 8.

1, at page 24, where Mr. Chief Justice Hughes said:

‘“‘The Board is authorized to petition designated

courts to secure the enforcement of its order... .

Any person aggrieved by a final order of the Board

may obtain a review in the designated courts with

the same procedure as in the case of an application

by the Board for the enforcement of the order. Sec.

10.’’

WP A Nh ILS ett EIR oad MG FCO? NAS I

2

The same similarity between the enforcement and re-

viewing provisions is also brought out in Myers v. Beth-

lehem Shipbuilding Corporation, 303 U. 8. 41, where, at

page 49, Mr. Justice Brandeis, said:

‘“‘To secure enforcement, the Board must apply

to a Circuit Court of Appeals for its affirmance....

The independent right to apply to a Circuit Court

of Appeals to have an order set aside is conferred

upon any party aggrieved by the proceeding before

the Board.’’

While the application for certiorari to review the action

of the District Court in dismissing, during the vacation

period of the Circuit Court of Appeals, petitioner’s at-

tempt to review the order of the Board, and the application

for certiorari to review the action of the Circuit Court of

Appeals in enforcing the order of the Board, are sepa-

rately numbered on the calendar of this Court, only one

question is raised on the merits, namely, whether the order

of the Board should be sustained.

At the time the case was first argued before the Circuit

Court of Appeals on the application of the Board for en-

forcement, notice of the decision of the District Court dis-

missing petitioner’s application for review had not yet been

given to the petitioner’s attorney. On the application for

re-hearing before the Circuit Court of Appeals, the dis-

missal of petitioner’s application for review by the District

Court was brought to the attention of the Circuit Court of

Appeals, but the application for re-hearing was nevertheless

denied.

The argument made on behalf of the Board, that this

Court has no jurisdiction to consider the dismissal of peti-

tioner’s application for review, assumes that there is no

case pending in the Circuit Court of Appeals. This is con-

trary to the fact. Both the reviewing and enforcing aspects

of the order of the Board were brought to the attention of

the Circuit Court of Appeals. This is sufficient to bring

the case within the jurisdiction of this Court under Section

240 of the Judicial Code, which permits certiorari to issue

from this Court in any case in a circuit court of appeals.

As shown by Forsyth v. Hammond, 166 U. S. 506, at

page 513, this Court, on certiorari, is vested with a ‘‘com-

prehensive and unlimited power. The power thus given is

not affected by the condition of the case as it exists in the

court of appeals.’’

Mr. Justice Sutherland, in Story Parchment Co. v. Pater-

son Parchment Paper Co., 282 U.S. 555, pointed out at page

567 that, on certiorari, the entire record is before this Court.

Hence the filing of the petition for certiorari on April

30, 1942, within three months of the order of the Cireuit

Court of Appeals granting enforcement of the order of the

Board, brings before this Court the entire record both in

the Circuit Court of Appeals and in the District Court.

Further ground for the jurisdiction of this Court in

certiorari is Section 262 of the Judicial Code, 28 U.S. C. A.,

See. 377. As stated by Mr. Chief Justice Hughes in ‘‘Re

620 Church Street Building Corp.,’’ 299 U. S. 24, at page

26:

‘That provision (Sec. 262) contemplates the

employment of this writ (certiorari) in instances not

covered by Sec. 240 of the Judicial Code (28 U. S.

C. A., See, 347) and affords ample authority for using

the writ as an auxiliary process and as a means ‘of

giving full force and effect to existing appellate

authority and of furthering justice in other kindred

ways.’ U.S. v. Beatty, 232 U. S. 463, 467; American

Constr. Co. v. Jacksonville ete. R. Co., 148 U. 8. 372,

379; Re Chetwood, 165 U. S. 443, 461; Magnum

Import Co. v. Coty, 262 U. S. 159.”’

Pe aac ee

SND ESS

RINE STAINS

tt aR

pont

EPH Oe

Scale Co., 261 U. S. 399, at page 418, where Mr. Chief

Justice Taft said:

4

To the same effect is Toledo Scale Co. v. Computing

‘Our power to grant writs of certiorari extends

to interlocutory as well as final decrees, and a mere

denial of the writ to an interlocutory ruling of the

Circuit Court of Appeals does not limit our power

to review the whole case when it is brought here by

certiorari on final decree.’’

In an earlier case, Mr. Chief Justice Fuller reached the

same conclusion in Ex parte Chetwood, 165 U.S. 443, 460,

specifically mentioning the power of this Court to issue

certiorari under the power ‘‘to issue all writs, not specific-

ally provided for by statute, which may be agreeable to the

usages and principles of law;”’ adding,

‘¢and under this provision, we can undoubtedly issue

writs of certiorari in all proper cases. American

Constr. Co. v. Jacksonville &., R. Co., 148 U. S.

372, 380.”’

In particular, as pointed out in the Chetwood case, this

Court may review questions of jurisdiction. This accords

with a long line of decisions in this Court, beginning with

U. S§. v. Hamilton, 3 Dall. 17, and including Ex parte Milli-

ean, 4 Wall. 2, Union Pac. R. Co. v. Weld County, 247 U.S.

282, and an unbroken line of decisions to the same effect.

Petitioner disagrees with the argument made on behalf

of the Board that U.S. v. Bitty, 208 U. S. 393, 399-400, and

U. 9. v. Heinze, 218 U. S. 532, 545-546, are authority that

equal access to the Courts need not be accorded to the

Board and to the petitioner. Both are criminal cases hold-

ing that no constitutional right is denied to a criminal

accused because he may not secure a review of the over-

ruling of a demurrer to an indictment before final deter-

5

mination, while the state may, by writ of error, promptly

review a ruling of the trial court sustaining a demurrer

to an indictment. Aside from the answer that the accused

may have his appeal heard after the case has been deter-

mined on the merits, the dissimilarity to the present case

is that a proceeding before the Board partakes not of a

criminal but of an equitable nature.

Rochester Telephone Corp. v. U. S., 307 U.S.

125, at p. 142;

National Labor Relations Board v. Jones &

Laughlin Steel Corp., 301 U. 8.1, at p. 48;

Jones v. Securities & Exchange Commission, 298

U.S. 1, at p. 15.

The argument is made on behalf of the Board that

special circumstances might exist creating a need for

enforcement of an order of the Board during the vacation

of the Circuit Courts of Appeals, while no such need could

arise on behalf of petitioner to seek a prompt review of a

Board order. To say that noncompliance with a Board

order subjects petitioner to no penalty is to encourage

noncompliance by denying to petitioner an opportunity for

immediate review accorded to the Board. An additional

answer is found in subsection (g) of Section 10:

‘The commencement of proceedings under sub-

section (e) or (f) of this section shall not, unless

specifically ordered by the court, operate as a stay

of the Board’s order.”’

The refusal of the District Court to take jurisdiction

during the vacation of the Circuit Courts of Appeals, of

an application to review an order of the Board, while recog-

nizing the right of the Board to apply to the District Court

in vacation for an order of enforcement raises a serious

question of the interpretation of Section 10(e) and (f) of

the National Labor Relations Act on the equitable principle

of mutuality.

Since the denial of certiorari involves no expression of

opinion on the merits of the case (Atlantic Coast Line R. R.

v. Powe, 283 U. S. 401), petitioner respectfully urges that

this court should take jurisdiction to determine a doubtful

construction of subsections (e) and (f) of Section 10 of

the National Labor Relations Act.

Respectfully submitted,

Joun F. Dumont,

Joun A. Hooper,

Attorneys for Petitioner.

Harry NabDELL,

Epmunp M. Toianp,

Of Counsel with Petitioner.

(2002)