Petition for Writ of Certiorari — Rapid Roller Co. v. National Labor Relations Board

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- 4 J FILED

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1942

RAPID ROLLER CO., a Corporation,

Petitioner,

Us.

NATIONAL LABOR RELATIONS BOARD.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Homer CuMMINGs,

CHar.Les LeRoy Brown,

Counsel for Petitioner.

JUL 6 1942

No. 210 CHANLES ELMORE CROPL

IN THE

—

INDEX

Page

SPREE ELT C TE COTTE TTT TRC OTE OTE eT eT ee 1

SR Soa 5b kia Wile ah ER WONT AEN & 2 ES 2

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SR UIpa SURVEY ix 302s a ip: Ceuir a da pore ce st Salama aire eae 4

CO SES LEE RU ASE ees PAPI Pee TES GE eT 5

Specification of errors to be urged.............cceceseccesecnsccves 13

ResBOrs Tot Meanie te WEI, aici. ios carey eo ea eene cus scarce mae: 14

I. The Board’s order requiring the reinstatement of strikers with

back pay is unauthorized by the Act because the contract of

employment had terminated theretofore and, in any event,

there was no refusal to bargain upon which such an order could

RIOT E ETT TEESE TET ee Oe er Tee 15

(A) Since the strikers’ contract of employment had expired

by its terms prior to the date of the petitioner’s alleged

wrongful refusal to reinstate them, the Board’s order

requiring reinstatement and back pay thereafter was

arbitrary, unauthorized, and unlawful.................. 16

(B) There was no unlawful refusal to bargain upon which the

order for reinstatement and back pay could be predicated. 21

II. Assuming that the employee relationship had not terminated

and that the employer had refused to bargain collectively, the

back pay order is nevertheless unauthorized and requires the

exercise of this Court’s power of review .................05. 36

(A) In the terms of its remand of the case with instructions to

determine deductions from back pay, the court below

infringed the discretionary authority of the Board and

imposed an unlawful burden upon petitioner............ 36

(B) The Board, and the court below, unlawfully ordered back

pay for a period prior to any offer of the strikers to return

We i ek Cincda nd ekSN oa wedeabendes 38

CONDTESION 07S). base icw eee ees Uren e as Cam aie mea eC Deiatins 40

ROU C5 6s 355 Kann he Kran iat whey NG Rea aed td Ae laee 42

CASES

Beatty: 9.36. Bad @. RoGG., Ae WYO. Sasso ones on 0k bce ov saaedcn 16

Birmingham T. & S. Co. v. Atlanta B. & A. Ry. Co., 271 Fed. 743..... 19

; Brinkerhoff-Faris Co. v. Hill, 281 U. 8. 673. ............. cc cece eee 15

j C. B. Stout, d.b.a. Majestic Flour Mills, 15 NLRB 541............... 38

Christiansen v. Local No. 680, 126 N. J. Eq. 508................04.. 16

DORA EF I BA 6 sos nna d cen cessed bolas eiucens 16, 17

BOGE S, TO Te te A Fo odin 6 kn vs Se on eve cadenevswns 17

Se SS I oa cis nes vs neon kinds cdacunbowasbas 15

ee hoe OP Re er eee ee 38

In ve Buffalo & B. Ry. Co., 200 N.Y. BIG... 22. ccc ccc ec cee cevecs 18

—1076

il INDEX

Page

Interstate Commerce Commission v. Illinois Central R. Co., 215 U.S. 452. 36

Knowles v. Terminal R. Assoc. of St. Louis, 154 8. W. 2d 606 (Mo.

ea te aaa SPER G's Se aus Gee's 6 ORO S Walle wad 9 oc 18

Labor Board v. Fansteel Corp., 306 U. 8. 240..............0... 0000 20

Labor Board v. Jones & Laughlin, 301 U.S.1.................0005. 18, 32

Labor Board v. Mackay Co., 304 U.S. 383.............. 0c cece eceee 32

Labor Board v. Sands Mfg. Co., 306 U.S. 332.................. 16, 30, 32

Labor Board v. Virginia Power Co., 314 U.S. 469. ...............04. 35

Montgomery Ward & Co., Inc., 39 NLRB No. 41.................... 32

Moore v. Illinois Central R. Co., 312 U.S. 630. .................005. 16

McGlohn v. Gulf & S. I. R. Co., 183 Miss. 465..................005. 16

National Labor Relations Board v. Express Pub. Co., C. C. A. 5, June 12,

1942, 3 C. C. H. Labor Law Service (6110....................... 32

National Labor Relations Board v. Lion Shoe Co., 97 F. 2d 448........ 17

National Labor Relations Board v. Somerset Shoe Co., 111 F. 2d 681.... 38

National Licorice Co. v. Labor Board, 309 U. 8. 350.................. 37

Northern Pacific v. Department of Public Works, 268 U.S. 39......... 15

Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333.................. 15

Perras vy. Terminal R. Assoc. of St. Louis, 154 S. W. 2d 417 (Mo. App.

ear ee ee eae etek Fae ates Ge oN carne ev 17

Phelps Dodge Corp. v. Labor Board, 313 U.8.177........... 18, 20, 37, 38

Pittsburgh Metallurgical Co., Inc., 20 NLRB 1011.................... 32

Rentschler v. Mo. Pac. R. Co., 126 Neb. 493 .................0005- 16, 17

IPN COG Ce POR os Soe eked leds ee ses nwa ve 38

System Fed. No. 59 v. Louisiana & A. Ry. Co., 119 F. 2d 509......... 17

Texas & N.O. R. Co. v. Railway Clerks, 281 U.S. 548............... 18

Virginian Ry. Co. v. System Federation, 300 U.S. 515............... 18, 32

Yazoo & M. V. R. Co. v. Sideboard, 161 Miss. 4..................... 16

West Ohio Gas Co. v. Commission (No. 1), 294 U.S. 68............... 15

West Ohio Gas Co. v. Commission (No. 2), 294 U.S. 79............... 15

Wisconsin Creameries v. Sheboygan Dairy Products Co., 208 Wis. 444.. 20

STATUTES AND MISCELLANEOUS

Act of July 5, 1935 (National Labor Relations Act), 49 Stat. 449 (29

U.S. C. sec. 151, et seq.):

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hai irid os cia iest ens 2k 0a. 5,8 pie 6 0.4.50 8S MS 33

National Labor Relations Board, Fourth Annual Report (1939),

Ne cd eee wares fed oS CEI Talon e's basalts oo oars

Sen. Rept. No. 573, 74th Cong., 1st Sess. (1935), Sa Ba aan ge eee 19, 32

Williston, Contracts (rev. ed. 1936):

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1942

No.

RAPID ROLLER CO., a Corporation,

vs Petitioner,

NATIONAL LABOR RELATIONS BOARD.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Rapid Roller Co., your petitioner, prays that a writ of

certiorari be issued to review a judgment of the United

States Cireuit Court of Appeals for the Seventh Circuit,

approving, with a single modification, an order of the Na-

tional Labor Relations Board, and a decree by that court

enforcing compliance with the requirements of that order.

OPINIONS BELOW

The opinion of the Circuit Court of Appeals (4 R. 2035-

2050) is reported in 126 F. 2d 452. The findings of fact,

conclusions of law, and order of the National Labor Rela-

tions Board (1 R. 216-274) are reported in 33 N. L. R. B.

No. 108,

JURISDICTION

The opinion of the Circuit Court of Appeals was filed,

and its original judgment of approval with modification

entered, February 2, 1942 (4 R. 2034, 2051). Petition for

rehearing was denied April 9, 1942 (4 R. 2051-2052). The

decree of the Circuit Court of Appeals, enforcing com-

pliance with the Board order, was entered on May 8, 1942

(4 R. 2070). The jurisdiction of this Court is invoked un-

der under Section 240(a) of the Judicial Code as amended

by the Act of February 13, 1925, and under § 10(e) of the

National Labor Relations Act.

QUESTIONS PRESENTED

The following questions are presented for consideration

in connection with this petition for writ of certiorari:

(1) Has petitioner been accorded its right to a fair

hearing and due process of law where the Circuit Court

of Appeals, upon petitions for review and enforcement

of an order of the National Labor Relations Board,

(a) admittedly looked ‘‘only to the evidence that is

favorable to the Board’’ and (b) ignored undisputed

facts requiring a different result?

(2) Does § 2(8) of the Act alone operate to extend

or create a contract of employment so as to authorize

the Board to order reinstatement of strikers, and back

pay, for a period wholly subsequent to the termination

of the employer-employee status under the express

terms of the written contract of employment between

the parties?

(3) Is the Board authorized to find that an employer

has refused to bargain collectively, and to predicate

thereon an order of reinstatement and back pay, where

it is admitted that the employer (a) has entered into

successive collective agreements with its employees,

(b) has conducted constant negotiations respecting

plant transfers and hiring notwithstanding there was

NTS SORIA LALA EPP A HT EAI PT RL ELE 8 ON IETS EAI GAIA EF IE LE TBS EEE OL RITES ELLIE AN AR tl! GAP NA A AN a TT

ae orate

no closed shop agreement, (c) has acceded to two Un-

ion complaints respecting specific instances of plant

transfers, but (d) while intensively negotiating re-

specting a third complaint, refused to aecede to the

Union demands for the discharge of four newly hired

employees and one old employee?

(4) Upon reviewing a back pay order of the Board

and in remanding the case with instructions to make

due allowances for the unjustified refusal of employees

to take desirable new employment, is a Circuit Court

of Appeals authorized (a) to direct how and upon what

theories the matter is to be determined by the Board

and (b) to place the burden of proceeding and proof

upon the employer—despite the holding of this Court

that the matter is peculiarly one for the original discre-

tion and initiative of the Board?

(5) Is the Board authorized to order back pay for

strikers for a period prior to an offer by them to re-

turn to their positions?

The following questions are presented for brief and argu-

ment on the merits in case the writ is granted:

(6) Can a finding by the Board of interference, re-

straint, and coercion in violation of § 8(1), of the Act

be sustained as a matter of law where the undisputed

facts are that (a) the plant was promptly and com-

pletely unionized, (b) the employer immediately and

constantly recognized the Union as the exclusive bar-

gaining agent for its employees, (c) every employee

eligible to membership in the Union had exercised and

enjoyed every right guaranteed by § 7 of the Act, and

(d) statements attributed to the employer at no time

had any coercive effect upon the employees?

(7) Was the Board authorized to make the blanket

provision of Paragraph 1(c) of its order prohibiting

any violation of the statute?

(8) Was the Board outhorized to find discriminatory

discharge, and to make an order for reinstatement or

back pay, with respect to two employees (a) who were

not members of the Union or eligible for membership

therein and had, in fact, by the Union itself been denied

transfer to a unionized position and (b) whose dis-

charge after a strike began was occasioned solely be-

cause the men to whom they were assistants had been

transferred to other positions leaving nothing for those

two employees to do except take positions vacated by

strikers which they declined?

STATUTE INVOLVED

The pertinent provisions of the National Labor Rela-

tions Act, July 5, 1935, 49 Stat. 449, 29 U. S. C. see. 151,

et seq., are—

Definitions.

See. 2. When used in this Act—

* * * * * 7 *

(3) The term ‘‘employee’”’ shall include any em-

ployee, and shall not be limited to the employees of a

particular employer, unless the Act explicitly states

otherwise, and shall include any individual whose work

has ceased as a consequence of, or in connection with,

any current labor dispute or because of any unfair

labor practice, and who has not obtained any other

regular and substantially equivalent employment, but

shall not include any individual employed as an agri-

cultural laborer, or in the domestic service of any fam-

ily or person at his home, or any individual employed

by his parent or spouse.

Rights of Employees.

Sec. 7. Employees shall have the right to self-

organization, to form, join, or assist labor organiza-

tions, to bargain collectively through representatives

of their own choosing, and to engage in concerted ac-

tivities, for the purpose of collective bargaining or

other mutual aid or protection.

Sec. 8. It shall be an unfair labor practice for an

employer—

(1) To interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in section 7.

* * * * * * *

(3) By discrimination in regard to hire or tenure

of employment or any term or condition of employment

to encourage or discourage membership in any labor

organization: Provided, That nothing in this Act, or

in the National Industrial Recovery Act (U. S. C.,

Supp. VII, title 15, sees. 701-712), as amended from

time to time, or in any code or agreement approved or

prescribed thereunder, or in any other statute of the

United States, shall preclude an employer from making

an agreement with a labor organization (not estab-

lished, maintained, or assisted by any action defined in

this Act as an unfair labor practice) to require as a

condition of employment membership therein, if such

labor organization is the representative of the em-

ployees as provided in section 9(a), in the appropriate

collective bargaining unit covered by such agreement

when made.

* * * * * * *

(5) To refuse to bargain collectively with the rep-

resentatives of his employees, subject to the provisions

of Section 9(a).

STATEMENT

This proceeding involves an order of the National Labor

Relations Board directing the reinstatement of strikers,

with back pay over a period of more than three years and

aggregating several hundred thousand dollars. The plant

had long been unionized; the employer had recognized the

Union as the exclusive bargaining agent for the employees;

and successive annual collective agreements had been en-

tered between employer and employees. Under its inter-

pretation of the then current contract, the Union there-

after claimed a right to veto the hiring of new men; the

employer refused to accede to the Union’s demands in this

respect; and a strike followed. The Board found that the

employer had not approached negotiations over the Union’s

interpretation with an ‘open mind’’ and predicated thereon

its order for reinstatement and back pay. The facts are

as follows:

Petitioner, Rapid Roller Co., is an Illinois corporation

organized in 1920 (2 R. 845). In its plant, in Chicago, it

manufactures and services rollers for printing presses and

produces rubber ‘‘blankets’’ for use in lithograph and

off-set printing (2 R. 845-847). Prior to 1937 its employees

were not members of any labor organization, but in April

of that year they organized Local No. 120 of the United

Rubber Workers of America, affiliated with the C. I. O.

(3 R. 14384). Until the immediate dispute here involved

began in March 1939, every production worker in the plant

was a member of the Union (2 R. 870-871, 944; 3 R. 1198-

1199; 4 R. 1891). The plant, in the words of the Union

president, was ‘‘one hundred per cent organized’’ (4 R.

1891).*

' Until just before the strike, petitioner had in its employ 89 pro-

duction workers, all of whom belonged to Local 120. Thirteen of

these were in the machine shop, 13 in the blanket department, 39 in

the mercury department (a department in which rubber coverings

were made and attached to cores of printing press rollers), 17 in

the composition department (a department in which a composition

covering was made and attached to the cores of printing press

rollers), and 7 were janitors, watchmen, firemen, and shipping room

employees (1 R. 95-97; 4 R. 1898-1900). The Union did not admit

to membership the laboratory employees, the truck drivers, the

salesmen, or the general office staff (1 R. 100-101).

Bn ractsriers: a A SACI NR A RR ONE

Immediately upon the organization of the Union in April

1937, the employer recognized it as the bargaining agent

of all the production employees, negotiated with it, and

entered into a written agreement with it for the period of

one year (1 R. 100, 301-302; 2 R. 690-691, 943-946; 4 R.

1802-1805).

In the early part of 1938 the previously experimental

‘‘blanket’’ department first beeame commercially profitable

(2 R. 852, 938, 1036; 3 R. 1462). Ability to perform skilled

work, including capacity to handle sensitive machinery,

were required of employees in that department.’ The sub-

sequent differences between the employees and employer

involved the matter of transfers to, or hiring in, that grow-

ing department:

“In 1938 and 1939 there were only 13 employees in the blanket

department (1 R. 97). The only men who understood the manufac-

ture of these rubber blankets were those 13 men, a foreman, a scien-

tific man in petitioner’s laboratory, and a few graduates of the

blanket department who were then serving as salesmen and office

men (3 R. 1216, 1230, 1307).

*The blanket department was a new and expanding branch of

petitioner’s business. Its product was wholly unlike those of its

other departments. The rubber “blankets” were made by applying

180 to 220 separate spreads of thin layers of rubber to a basic special

cotton fabric (2 R. 846-847, 963, 968; 3 R. 1073-1074). The many

thin layers of rubber aggregated in thickness only twenty-one thou-

_sandths of an inch (2 R. 963). The blanket so produced was different

'- from any other (2 R. 938). Unusual and sensitive machinery was

used in the manufacture of the blankets (2 R. 966). The rubber

blanket makers had to read micrometers and gauges and make very

particular settings on their machines (3 R. 1108). The blankets,

made in huge pieces 30 to 40 yards in length (2 R. 963; 3 R. 1218),

were very expensive, each costing several hundred dollars (2 R.

964). By reason of the precision and delicacy of the manufacturing

operation, it was very easy to ruin a blanket; a variation of one and

one-half thousandths of an inch in thickness of any part of the

blanket necessitated the rejection of all of it (2 R. 963), thereby

causing a substantial loss to the manufacturer. Workers in the

blanket department had to go through a period of special training

(3 R. 1110, 1108, 1123, 1241, 1242, 1230; 2 R. 852).

PORES | MOYES AGERE OR RIC a

In April 1938 the Company transferred a Union man,

one Meskan, from the machine shop to be a spreader’s

helper in the blanket department. Thereupon Moore, the

Union’s shop committeeman for the latter department,

objected and insisted that the position be given to Moore’s

brother who is described in the 1937 contract with the

Union as a colored janitor (4 R. 1806). Although the

contract then in effect contained no seniority provision

(1 R. 230 note 12; 4 R. 1802-1806), Moore insisted that

his brother have the position because of departmental

seniority and threatened to, close the plant by a strike

otherwise (1 R. 446; 3 R’ 1065-1069, 1179). The Com-

pany’s president, Rapport, a man of diminutive size (3

R. 1457), then went to the blanket department and had

a heated argument with Moore (1 R. 446; 2 R. 948; 3 R.

1068). Moore told Rapport that he would ‘‘wring [the

latter’s] fat neck’? (1 R. 232). Rapport, according to

Moore’s testimony, had picked up a ‘‘erank handle’? and

used it threateningly (1 R. 444); and he ordered Moore

discharged (1 R. 232). Although the Union contract. pro-

vided that ‘‘there will be no strike, stoppage or lockout

during the period of this agreement pending the settlement

of any disputes’’ (4 R. 1805), Moore promptly persuaded

the men in the blanket department to engage in a sitdown

strike (1 R. 446-447; 2 R. 948-949). Rapport immediately

reinstated Moore, gave the disputed job to Moore’s brother,

and the strike ceased (1 R. 446-447; 3 R. 1068-1069). The

court below mentions the ‘‘crank handle’? aspect of that

incident three times and lays chief reliance upon it to

sustain the Board’s order herein (4 R. 2039, 2041, 2046),

but the Board held that there had been no refusal to

bargain in that instance (1 R. 233).

In the same month as the Meskan affair, April 1938, the

Union contract was to expire; and, after negotiations ex-

he Ret BILE oTW ee PEGE ARH

tending over a period of about ten days, a new contract

was agreed to and signed (1 R. 91-97, 305, 450, 451; 3 R.

1336).*. The contract—which named every production

worker, defined his jab, and stated his weekly wage for

the term—was to be in force for one year after April 23,

1938 (1 R. 94-97). The Union had endeavored to secure

a closed shop provision (4 R. 1815, 1817), but finally con-

sented to its elimination (1 R. 517-518; 2 R. 636-639,

851-854, 869-874; 3 R. 1326-1340). The Company acceded

to a seniority clause for promotions, better terms as to

hours and overtime, and an increase of minimum pay

and general wages (2 R. 885, 874-878).

In September 1938 the Company transferred chemical

laboratory assistant Levy to the blanket department (3

R. 1181-1182), but the shop committee objected on the

ground that there were two or three production employees

in other departments not then working (1 R. 312, 519,

643-644; 2 R. 957; 3 R. 1184). After the employer had

called back to work those men who had been temporarily

idle (2 R. 957-958; 3 R. 1183, 1226-1227; 4 R. 1963), the

Union still objected to the transfer of Levy to the blanket

department and instituted a second sitdown strike, this

time throughout the whole plant, to which the Company

yielded in a few hours (1 R. 311-315, 453-468, 518-522,

537-541; 2 R. 641-646, 955-961, 1032-1034; 3 R. 1180-1186).

* Negotiations for the new contract for the year commencing

April 23, 1938, opened on April 20 with submission of a draft by

the Union to the Company and lasted for about ten days (1 R. 305,

451; 2 R. 849-850; 3 R. 1322; 4 R. 1814-1819). After discussion

(2 R. 636-641, 850-865), submission of a counterdraft by the Com-

pany (2 R. 868-869; 4 R. 1935), a meeting in which further changes

were suggested and discussed (2R. 868-880), and submission and

discussion of a third draft on April 28, 1938, which was approved

by the full membership of the Union (2 R. 880-885), the new con-

tract (1 R. 91-97) was executed retroactively as of April 23, 1938

(1 R. 450; 3 R. 1836).

As to that incident, the Board again found no refusal to

bargain (1 R. 237).°

In October 1938 the need for additional personnel in

the growing blanket department became acute and Rap-

port, without success, attempted to work out an agreement

regulating transfers from one department to another. He

prepared a ten-point memorandum (1 R. 240; 4 R. 1806-

1807) and submitted it to the shop committee for their

reactions (2 R. 961). The committee found it unaccept-

able (4 R. 1807-1809); and the committee’s counter pro-

posals were unacceptable to the management because they

insisted upon the Union grievance committee being given

jurisdiction over the question whether the work of an

employee transferred to the blanket department was satis-

factory (2 R. 962-976; 4 R. 1808). The immediate nego-

tiation was dropped after the employer made one further

inquiry as to whether there was anything that could be

done and received a negative answer (2 R. 967).

Later, in January 1939, the Company’s foremen initiated

and held a number of meetings with the shop committee

in an attempt to agree on men to be transferred to the

blanket department (1 R. 525; 3 R. 1101-1109). Beginners

in the blanket department had to be specially trained (see

note 3, supra) and had to start at the minimum plant

wage of $25.00 per week (1 R. 94; 3 R. 1079-1080, 1110,

1123, 1242). Of petitioner’s 89 employees, only 12 were

earning as little as that minimum wage and most of these

were doing the work of porters, janitors and common la-

borers (1 R. 95-97). The management believed them in-

capable of learning or performing the precise work of mak-

ing costly lithograph blankets (2 R. 964, 966, 974; 3 R. 1107-

5 At the time of the attempted transfer, Levy was not a member of

the Union, being ineligible because he had not been a production

employee (1 R. 100-101). A few months later the Union reversed

its position and requested that he be transferred to the blanket

department (1 R. 331-332, 477; 2 R. 977-978).

. <—

1108, 1241, 1105, 1121-1122). The committee at the request

of the foremen submitted a list (1 R. 541; 4 R. 1809)

but later withdrew some names (2 R. 656-657; 3 R. 1079,

1109, 1116-1117, 1138-1139). The foremen agreed to take

immediately two of the men finally proposed by the Union,

and they had no objection to two others, but the Union

refused to agree unless others of greater seniority—whom

the foremen considered unfit for the technical work of the

department—were taken first (3 R. 1105-1106, 1117-1122,

1136, 1240-1242). The shop committee declined to nego-

tiate further (3 R. 1122, 1124, 1136).

Thereupon, in February 1939, every worker in the plant

being engaged full time (2 R. 972; 3 R. 1200), the Com-

pany hired four new men for the blanket department at

the minimum plant wage (2 R. 839: 3 R. 1142-1150, 1187-

1198; 4 R. 1581). It was that hiring and the strike which

followed, fully described below in Point I1(B) of the argu-

ment, which led to the Board proceedings here involved.

The strike began on March 10, 1939 (1 R. 250). Pending

negotiations in attempted settlement continued thereafter

(1 R. 252), but the Union never withdrew from its posi-

tion in any respect (1 R. 335-336; 2 R. 900, 904; 3 R. 1365-

1367, 1374-1375, 1381-1382; 4 R. 1778, 1910-1911). The

Union contract with the Company expired on April 23,

1939, which was forty-four days after the strike began

(1 R. 91, 94). On and after April 23, 1939 (the date of

the expiration of the contract) and before May 9, 1939

(the date of an alleged offer of the 84 strikers to return

to work, which is discussed below in Point II(B) of the

argument) the Company had secured a full complement

of 93 men to work in the plant, including six strikers

who had applied for and been given their old jobs (1 R.

119; 3 R. 1388; 4 R. 1901-1906).*

* After the strike began, most of the laboratory employees went

to work in the factory, since none of the ordinary operations of the

PRAISE AE IETS Cae I AAT MOM SAORI SAE VBE PAINS BID Abe AOE ITALENT AME PO OE his AO AR PERC

After the commencement of the strike, the Union filed

with the Board its original charge dated June 8, 1939

(1 R. 33) and an amended charge dated November 30, 1939

(1 R. 36). The Board issued its complaint dated December

1, 1939 (1 R. 40) and the taking of testimony began on

December 11, 1939 (1 R. 280). Oral argument was heard

on October 1, 1940 (1 R. 215).

The Board found that petitioner had interfered with

the employees’ right to organize (1 R. 228, 233) and had

refused to bargain collectively with respect to the hiring

of the four men in March 1939 (1 R. 257). Board Member

Leiserson, one of the two members of the Board who had

heard the arguments, dissented from both findings (1 R.

273-274).7 The order of the Board; entered. July 19, 1941

(1 R. 273), directed the Company to cease and desist from

(a) refusing to bargain collectively, (b) discouraging mem-

bership in the Union, or (¢) in any manner interfering with

the guarantees of §7 of the Act. Affirmatively, it directed

petitioner to (a) bargain collectively with the Union, (b)

reinstate the strikers, (c) give them back pay from the

date of an alleged offer by them to return to their posts,

laboratory was continued; but Schnitzer and Levy, laboratory boys,

declined to work in the factory in the place of strikers on the ground

that it was against their principles to do so (2 R. 817, 822, 826) and

remained in the laboratory doing nothing (2 R. 820-821, 827, 828;

3 R. 1223, 1225). Subsequently they made sample rollers, did con-

trol work, cleaned up the laboratory, and washed the windows (2 R.

820, 1203). Finally, on March 17, factory manager Schartz told

Schnitzer that the company was not busy and did not need him any

more (2 R. 821). On March 24, Levy was given an extra week’s pay

and was discharged for lack of work for him to do (2 R. 828, 1 R.

263). The Board has ordered the reinstatement of one and back pay

for both (1 R. 260-265, 270, 272), and the court below has affirmed

(4 R. 2047-2049, 2072). Its ruling on this detached phase of the case

is specified as error (No. 8) and stated as one of the questions pre-

sented (No. 8) for brief and argument on the merits in case this

petition is granted.

7 Chairman Millis, who later became a member of the Board and

had not heard the arguments (1 R. 215), participated in the final

decision and thus cast the deciding vote with Board Member Smith

(1 R. 273).

(d) reinstate one non-union non-production employee who

had been discharged subsequent to the strike and (e) give

the latter, and another in the same category, back pay,

(f) post the usual notices, and (g) make the usual report

of compliance within ten days (1 R. 270-273).

The court below sustained the order of the Board in all

respects except that it remanded the cause for further pro-

ceedings as to deductions from back pay for the unjustified

refusal of employees to take other suitable employment

(4 R. 2035-2050), ordered compliance (4 R. 2051), and

entered a decree accordingly (4 R. 2070-2073).

SPECIFICATION OF ERRORS TO BE URGED

The Cireuit Court of Appeals erred—

(1) In depriving petitioner of the scope of judicial re-

view required by the Fifth Amendment to the Constitu-

tion and provided by the Labor Relations Act, by refusing

to consider any evidence—though admitted, indisputable,

and controlling—except that deemed favorable to the

Board’s order;

(2) In approving and enforcing the Board’s order di-

recting, with respect to the strikers, reinstatement and

back pay subsequent to the date of termination of employ-

ment expressly provided by the collective contract of em-

ployment entered into between the employer and the em-

ployees ;

(3) In holding that there was any substantial evidence

upon which the Board could lawfully (a) find petitioner

guilty of a failure to bargain collectively and (b) order

the reinstatement of the strikers with back pay;

(4) In prescribing by its judgment and decree of re-

mand how and upon what theory the Board should deter-

mine deductions from back pay for the unjustified refusal

PFN RRL IES TEM I LE OBIE ae

of strikers to accept other desirable employment; and in

placing upon petitioner the burden of proceeding and proof

with respect thereto;

(5) In failing to hold that the Board was not authorized

to order back pay for strikers during the strike and prior

to an offer by them to return to work; and in failing to

hold that the Board did not have substantial evidence

before it upon which it could lawfully find that the strikers

had made an adequate offer to return to their jobs;

(6) In approving the Board’s findings and enforcing its

order respecting petitioner’s alleged interference, restraint,

and coercion of its employees in the exercise of their rights

under § 7 of the Act;

(7) In enforcing the blanket provision in Paragraph

l(c) of the Board’s order prohibiting any violation of the

statute;

(8) In holding that the Board had before it substantial

evidence (a) upon which it could find that the discharge of

two non-union employees was discriminatory and tended to

discourage Union membership and (b) upon which it could

lawfully order reinstatement of one and back pay for both;

(9) In entering its judgment approving, and decree en-

forcing, the order of the Board.

Specifications numbered 6, 7, and 8 will be briefed and

argued on the merits in case the writ is granted.

REASONS FOR GRANTING THE WRIT

In reviewing the order, the court below announced at the

outset that it would ‘‘look only to the evidence that is favor.

able to the Board’’ (4 R. 2036). It literally followed that

unprecedented formula, disregarding both admitted facts

and controlling testimony of the Board’s own witnesses.

a fo caer ONS . . - <

Only by the arbitrary exclusion of undeniable and pertinent

facts were the Board and the Circuit Court of Appeals able

to reach a decision against petitioner, as will appear from

the argument below.

Here each finding of the Board has been inferred despite

admitted facts to the contrary or ‘‘in the face of the positive

and otherwise uncontradicted testimony of unimpeached

witnesses consistent with the facts actually proved, from

which testimony it affirmatively appears that the fact sought

to be inferred did not exist.’’ Pennsylvania R. Co. v. Cham-

berlamn, 288 U. 8. 333, 340-341. See to the same effect Gun-

ning v. Cooley, 281 U.S. 90, 94. Petitioner was thus denied

a fair hearing and deprived of due process of law.’

I. THE BOARD’S ORDER REQUIRING THE REIN-

STATEMENT OF STRIKERS WITH BACK PAY IS

UNAUTHORIZED BY THE ACT BECAUSE THE

CONTRACT OF EMPLOYMENT HAD TERMI.

NATED THERETOFORE AND, IN ANY EVENT,

THERE WAS NO REFUSAL TO BARGAIN UPON

WHICH SUCH AN ORDER COULD BE PREDI-.

CATED.

The reinstatement and oack-pay provisions of the order

of the Board (1 R. 266-268, 271-272) and of the decree of

the court below (4 R. 2049, 2072) are unwarranted for two

‘The rule of review adopted by the court below deprived peti-

tioner of all opportunity for a defense—of what Mr. Justice Bran-

deis has called “due process in the primary sense.” Brinkerhoff-

Faris Co. v. Hill, 281 U. S. 678, 681-682. In the words of Mr. Justice

Cardozo, “the fundamentals of a fair hearing were not conceded to

the company.” West Ohio Gas Co. v. Commission (No. 1), 294 U.S.

63, 70; West Ohio Gas Co. v. Commission (No. 2), 294 U.S. 79, 81.

Again in the words of Mr. Justice Brandeis, the ignoring of uncon-

tradicted evidence is an “error * * * fundamental in nature”

which “vitiated the whole process of reasoning by which the Depart-

ment reached its conclusion” and constitutes “a denial of due proc-

ess.” Northern Pacific v. Department of Public Works, 268 U. S.

39, 44-45. Petitioner was thus deprived of a fair hearing before the

Board in the first instance, and of that judicial review which both

the Constitution and the Labor Relations Act itself guarantee,

reasons: (A) The employees’ written contract of employ-

ment, fixing a definite term, had expired prior to the date

of the alleged discriminatory refusal of reinstatement; and

(B) there was no failure to bargain on the part of peti-

tioner upon which to predicate those provisions of the

order.

(A)

Since the strikers’ contract of employment had expired

by its terms prior to the date of the petitioner’s alleged

wrongful refusal to reinstate them, the Board’s order re-

quiring reinstatement and back pay thereafter was arbi-

trary, unauthorized, and unlawful.—All of the employees

here involved had entered into a contract with petitioner,

which listed each employee by name and number and speci-

fied his type of position, department, and wage rate (1 R.

95-97). It was clearly, as this Court has said, an employ-

ment contract. Labor Board xv. Sands Mfg. Co., 306 U. S.

332, 342. The court below so referred to it (4 R. 2047).°

® Even in the absence of statutory authorization for a union to be

the bargaining agent of the employees, it is established that a col-

lective bargaining agreement entered into between an employer and

a union is a contract governing the tenure of employment and the

wages of the employees, that an employee may sue the employer on

that contract, and that an employee is bound by the terms of such

a contract. Rentschler v. Mo. Pac. R. Co., 126 Neb. 493, 253 N. W.

694, 95 A. L. R. 1; Donovan v. Travers, 285 Mass. 167, 188 N. E.

705; Christiansen v. Local No. 680, 126 N. J. Eq. 508, 10 A. (2d)

168, 171; Beatty v.C., B. & Q. R. Co., 49 Wyo. 22, 52 P. (2d) 404,

407; McGlohn v. Gulf & S. I. R. Co., 183 Miss. 465, 174 So. 250,

254, and 183 Miss. 445, 184 So. 71; Yazoo & M. V. R. Co. v. Sideboard,

161 Miss. 4, 183 So. 669. In Moore v. Illinois Central R. Co., 312

U. S. 630, 632, there was involved an employee’s suit for wrongful

discharge, based on the contract between a union and employer.

Some courts have said a union is not the agent of the member

generally but is only his representative for a limited purpose, while

others hold a union to be the principal and not the agent, and that

such rights as the employees have will depend upon the contract as

made by the union. But all hold that the tenure and rights of indi-

vidual employees accepting work under a union contract are governed

al init a RRS A ONES TRR: ANORE LIND ile SA RENAN AT RGN BIS LF ERAS LAER DOAN MiG

That contract of employment had expired by its terms

on April 23, 1939 (1 R. 91, 94) and the Company had

secured a full complement of 93 men in the places of the

84 strikers (1 R. 119; 3 R. 1388; 4 R. 1901-1906). Never-

theless, the Board ordered petitioner to reinstate and give

each striker back pay from May 9, 1939—the month follow-

ing the expiration of the employment contract—to date (1

R. 266, 271). In so doing the Board made, and the court

below approved, a new employment contract for an addi-

tional term. But, where there is a written contract for a

fixed term, it expires with the term. 4 Williston, Contracts

(rev. ed. 1936) § 1027, p. 2844. ‘‘Collective bargaining

agreements do not create a permanent status, give an indefi-

nite tenure, or extend rights * * * beyond its : life,

when it has been terminated. in accordance with its pro-

visions. * * * The rights of the parties to work under

the contract are fixed by the contract. They persist during,

they end with, its term.’’ System Federation No. 59 v.

Louisiana & A. Ry. Co., 119 F. 2d 509, 515 (C. C. A. 5), cert.

denied 314 U. S. 656. In the leading case of Rentschler v.

Missouri Pac. R. Co., 126 Neb. 493, 253 N. W. 694, 700, 95

A. L. R. 1, in which an individual employee was permitted

to base his action for damages for wrongful discharge on a

collective bargaining contract, the court said: ‘‘The contract

\ between the union and the railroad company was limited

to just one year, and therefore expired at the end of a

year, and plaintiff could only recover for that period.”’

See to the same effect National Labor Relations Board v.

Lion Shoe Co., 97 F. 2d 448, 453; Perras v. Terminal R.

by the contract’s terms. System Fed. No. 59 v. Louisiana & A. Ry.

Co., 119 F. 2d 509, 514 (C. C. A. 5), cert. denied, 314 U. S. 656.

The Illinois courts have followed the Massachusetts rule laid down

in Donovan v. Travers, supra, that a union is the principal and that

the employee is bound by the contracts of the union. Evans v. John-

ston, 300 Ill. App. 78, 93-94, 20 N. E. 2d 841, leave to appeal denied

by Illinois Supreme Court and cert. denied 309 U. S. 662.

SPY: OA ION SEE EPS ROTORS To DD RNIN EO ERE RB AY SLL ERED ret AAR EAN RE aE BREAN MAT Oc A ae

Assoc. of St. Louis, 154 8. W. 2d 417 (Mo. App. 1941) ; and

Knowles v. Terminal R. Assoc. of St. Louis, 154 8. W. 2d

606 (Mo. App. 1941).

In the absence of a new written contract or an implied

contract arising out of continued employment, there was

nothing upon which to fix the. terms or conditions of em-

ployment after the termination of the written contract here

involved; for there were no standards or guides upon which

to determine wages or any of the other elements of a mod-

ern labor contract. All authorities hold that rights of

seniority and rates of pay depend wholly on contract; and

there is no power in the Board to require the employees

to serve beyond their agreed term of employment, or to

order the employer to accept and compensate services be-

yond the fixed and written period upon which it had agreed.

The National Labor Relations Act ‘‘does not compel agree-

ments between employers and employees.’’ Labor Board

v. Jones & Laughlin, 301 U. 8. 1, 45; Virginian Ry. Co. v.

System Federation, 300 U. S. 515, 548; Texas & N. O. R.

Co. v. Railway Clerks, 281 U. 8. 548, 570-571. Only the

parties—the employees .and the employer—can make such

a contract (In re Buffalo d E. Ry. Co., 250 N. Y. 275, 165

N. KE. 291, 292), at least under the circumstances here

where they had entered a written employment contract

and, as an express term thereof, had mutually agreed

that it should terminate upon a fixed date.'”

10 Cf. Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 182, 187,

where there was no general collective employment contract. Em-

ployees were hired under individual contracts of indefinite duration.

There were vacancies to be filled, and they were being filled, but the

employer refused to hire union men. The Board—and the review-

ing courts—therefore had before them elements upon which to order

employment of those applicants and compensation for their loss of

pay following the unlawful refusal of employment. But in the

present case there was a written collective employment contract

prior to the strike, which had expired by its own terms as to the

men named therein. Prior to that expiration date, none of the men

ES gs ANNONA ENS ee Noe ee ee _ -_ -: .

eae = 7 = aver PRD LEN LODE EERE RPT CTR EAMONN WE RTE TOR LEIP GSR PO IROL AOR IESE TLIO AIM? ELAR

The statute does not supply a contract in these cir-

cumstances. Before the passage of the Act, a strike termi-

nated the relation of employer and employee (Birmingham

T. & S. Co. v. Atlanta B. d A. Ry. Co., 271 Fed. 748, 745),

and the only purpose of § 2(8) was to change that rule.

Accordingly, § 2(3) of the Act provides that the term

‘‘omployee’’ shall include ‘‘any individual whose work has

ceased as a consequence of, or in connection with, any

current labor dispute or because of any unfair labor prac-

The court below held that, despite the written

tice.”’

agreement of the parties to the contrary, ‘‘when the em-

ployees went out on a strike because of the unfair labor

practice of the company, their status as employees for

the purpose of any controversy growing out of that unfair

labor practice was fixed’? by § 2(3) of the Act (4 R. 2047).

But, manifestly and necessarily, the employee status of

strikers may change despite the statute—as by death, the

voluntary assumption of a different permanent employ-

ment, unlawful violence, or—as in this case—the agreed

termination of the contract of employment.

Section 2(3) of the statute is purely negative in effect.

It was intended to mean no more than that employee

status shall not cease during a strike, merely because of

the strike. Sen. Rept. No. 578, 74th Cong., Ist Sess., pp.

6-7. Here, for example, one of the strikers died and the

Board recognizes that his status as an employee terminated

thereby (1 R. 267). As against the contention that the

status of striking employees becomes fixed and unchange-

able, this Court has held that ‘‘such a legislative intention

should be found in some definite and unmistakable ex-

pression’? and has found ‘‘no such expression in the cited

had asked reinstatement, and hence none were refused employment.

When reinstatement was finally suggested, there were no vacancies

to be filled (1 R. 119; 3 R. 1388; 4 R. 1901-1906) and the strikers

did not even consider reinstatement except upon conditions they

had no right to impose (see Point I1(B) infra).

POE ett y'e! RRA

COAL UREN! OR ETRE NI SBI ER RNS NL ERENCE IY LO LIR PEAT DOO UO ENE NINE SSI) AONE Ne Rowena —

provision.’’ Labor Board v. Fansteel Corp., 306 U. S. 240,

255. As the concurring Justice therein stated (p. 264), there

may be a termination of the employer-employee relation-

ship during a strike ‘‘for reasons dissociated with the

stoppage of work because of unfair labor practices. The

language which saves the employee status for those who

have ceased work because of unfair labor practices does

not embrace also those who have lost their status for a

wholly different reason.’’ In the last cited case this

Court held that employee status was lost by the unilateral

discharge of striking employees guilty of unlawful vio-

lence. A fortiori, where as here the employees and em-

ployer have mutually agreed upon a contract of employment

with a fixed termination date, employment ceased by mutual

consent, This Court has heretofore suggested that, if con-

strued to continue terms of employment despite unlawful

conduct of employees, § 2(3) would be of doubtful con-

stitutionality (id., at 255, 265); it would be more plainly

so if construed to extend terms of employment beyond the

written agreement of the parties. Wisconsin Creameries

v. Sheboygan Dairy Products Co., 208 Wis. 444, 243 N. W.

498, 501-502; 6 Williston, Contracts (rev. ed. 1936) § 1758,

p. 4995.

Plainly, the Board had no authority to order reinstate-

ment, and no authority to order back pay, after the mu-

tually agreed termination of the employment contract."

'l Once the employee-employer relationship had ceased, “respond-

ent was * * * free to consider the exigencies of its business

and to offer reemployment if it chose” and in so doing it would be

“simply exercising its normal right to select its employees.” Labor

Board v. Fansteel Corp., 306 U. S. 240, 259. It may be admitted

that, if petitioner were hiring men and if the strikers here involved

had made applications for employment at that time, petitioner could

not refuse them employment because they were Union men (Phelps-

Dodge Corp. v. Labor Board, 313 U. S. 177, 182, 187). But here

there were no vacancies after April 23, 1939, the date of the expira-

tion of the Union contract (1 R. 119; 3 R. 1888; 4 R. 1901-1906) ;

aan Certo ci we mmcemaremr inet mA EO AREAL I NBER EM

Moreover, the decision of the Board and cf the court below

is in conflict with the important and settled decisions of

other federal courts as well as state courts cited above. The

question of the effect of § 2(3) of the National Labor Rela-

tions Act on term contracts of employment arises in many

industries, is important, and should be decided by this

Court. For these reasons, the case should be brought here

for review.

(B)

There was no unlawful refusal to bargain upon which

the order for reinstatement and back pay could be predi-

cated.—In any event, as the Board recognized, the order

for reinstatement and back pay could only be predicated

upon the theory that the employer, by acts in violation of

the statute, had caused the strike and was therefore re-

quired to reinstate the strikers when they applied for re-

instatement and, having failed to do so, must compensate

them with back pay for the period following the alleged re-

fusal to reinstate (1 R. 259-260, 265-268). The only act of

the employer asserted by the Board to have caused the strike

is the alleged refusal to bargain collectively (1 R. 228-259).

The Board predicated its finding to that effect upon one

incident—the hiring of four men and their retention over

the Union’s objections (1 R. 237-259). However, the court

below, in recognition of the weakness of the case on this

point, attempted to justify the Board’s order upon other

evidence, as follows:

The organization of the plant in 1937.—The Board's evi-

dence showed that there had been attempts by the employer

to discourage the unionization of the plant in the spring

those strikers who had theretofore made application had all been

reemployed (4 R. 1901-1906) ; and the remainder had not even con-

sidered reemployment after that date except upon conditions they

had no right to impose (see Point II (B) infra).

ites : Pil A RRC OA DA — —_—

of 1937, and upon this evidence the Board made a finding

of interference in violation of §8(1) and in disregard of

the rights guaranteed by §7 of the Act (1 R. 219-228, 228,

233)."* But the order for reinstatement and back pay was

not predicated upon that finding and could not have been;

for the plant was promptly organized, all the production

employees joined the Union (4 R. 1891), the Company

entered successive collective bargaining contracts with the

Union (1 R. 91-97, 4 R. 1802-1806), and according to the

written statements of the Union itself amicable relation-

ships existed thereafter between the employees and their

employer (4 R. 1891, 1933), except for the two incidents

mentioned next below.

The Board found no refusal to bargain during that

period. But the court below erroneously treats the aspects

of that earlier phase of the industrial relations of the Com-

pany as one of the elements of the refusal to bargain (4

R. 2036-2040, 2040) and in so doing has departed from the

findings of the Board itself. For the Board limits its

statement of background with reference to collective bar-

gaining to the origin of the terms of the contract the in-

terpretation of which was in dispute in the single incident

(the hiring in March 1939, treated below) wherein it found

a failure to bargain collectively (1 R. 239-246).

The Meskan and Levy incidents.—In the spring and fall

of 1938 the employees protested the transfer of an employee

to a position in the blanket department. In the first in-

stance, the Company gave way to the Union protests and

the Board found ‘‘no basis for holding that the respondent

refused to bargain collectively * * * concerning the

Meskan transfer, since the respondent, whether willing or

'2 That finding, while specified as error (No. 6) and stated as a

question presented (No. 6) supra for brief and argument upon the

merits in case this petition is granted, is not argued herein as a

ground for granting the writ,

- ‘ a — mevanerceninwn

sh lites LLL BNE PPS ge IN RE EOE AF 3 PIE LD AN LE AIOE, BONE ALE NG RE ORE BS LIE NA EE REO LA DE NIUE EI AT” a ADAM « 7”

= rn eens —

eshte

not, acceded to Local 120’s demand that it remove Meskan

from the position of spreader’s helper’? (1 R. 230-233, 233).

Sunilarly, the Company yielded to the Union protests

against the later transfer of Levy and the Board again

found ‘‘no basis for holding that the respondent refused to

bargain collectively’? (1 R. 233-237, 237). The court below,

however, departs from the Board’s findings and cites those

two incidents as showing an ‘‘arbitrary attitude’? on the

part of the Company (4 R, 2041-2042, 2042). As a matter

of fact, it is undenied that, even after those two incidents,

the Company extensively negotiated with the Union with

respect to the subject of transfers from one department

fo another (2 R. 894, 961-976; 3 R. 1085-1087, 1102, 1105-

1106, 1117-1122, 1124, 1213-1214, 1240; 4 R. 1806-1807).

The Board found no refusal to bargain until March 1939,

in connection with the hiring of four men, as follows:

The alleged refusal to bargain collectively in the hiring

of four men in March, 1939.—Since the blanket department

had gotten well into commercial production and was over-

whelmed with work (3 R. 1070, 1073), the Company hired

four new men to start work on March 2, 1989 (1 R. 237)

at the minimum plant wage (2 R. 839; 3 R. 1187-1198: :

+ R. 1941, 1948, 1951, 1953, 1955, 1957) which was less

than 77 of the then 89 production employees were paid

(1 R. 95-97)."*

When these men reported for work, a controversy with

the Union ensued. Since the employees in the blanket de-

partment performed highly specialized tasks of a precise

nature, the matter of hiring in and transfers to that de-

'' The blanket department, being undermanned, was far behind

in production and was forced to work overtime two hours each regu-

lar working day and also on Saturdays (2 R. 968, 1036; 3 R. 1070-

1073). The employer had built additional machines for the blanket

department, had arranged to build still more, and planned to put 14 |

to 16 additional men to work (2 R. 969, 973; 3 R. 1855).

partment was of the highest consequence as a matter of

management.'! Accordingly, in lieu of the closed shop and

strict seniority provisions for which the employees had

been contending (1 R. 517-518; 2 R. 636-637, 851-853, 861-

862, 869-872, 876-877; 3 R. 1326-1340), the Company in the

second contract with the Union had agreed only that ‘‘all

applicants for employment shall be referred to the Shop

Committee before going to work’’ (1 R. 92) and that ‘‘pro-

motions shall be made in accordance with seniority so far

as practicable, consistent with efficient operation’? (1 R.

94, 238). Since, in the incident here in issue, only hiring

was involved, upon going to work the four new men were

referred to members of the shop committee as the Board

found (1 R. 237 n. 21). Not only was each of the new

men told to join the Union and put in touch with the

shop committeemen, but all were willing to join the Union

(2 R. 839-841; 3 R. 1198-1199, 1142-1148, 1150; 4 R. 1581)."

14 See notes 2 and 3 supra.

1 A transfer to the blanket department was not a promotion.

There was no increase of wages on such a transfer. Beginners in

the blanket department had to start at $25 a week, the minimum

plant wage (1 R. 94; 3 R. 1079-1080, 1110, 1242). The average

wage in the blanket department was less than the average wage in

two of the other departments; the highest wages in the blanket

department were less than the highest wages in other departments

(1 R. 95-97). The work in the blanket department was neither

more easy nor more pleasant, and in fact the heat and atmospheric

conditions in the blanket department made it a less desirable place

in which to work (2 R. 964). The only advantage (a disadvantage

to some) of working in the blanket department was that at that

time there was more overtime work in that department (2 R. 967-

968, 1035); but that was a temporary condition due to the then

shortage of workers in that department.

In any event the employer did not now attempt to transfer any em-

ployee to the blanket department. It did not because such a trans-

fer was not, in the words of its contract with the Union, “prac-

ticable” and was not “consistent with efficient operation.”

16 Two of these new men, Haserodt and Prevost, joined in the

strike which occurred a few days later and are among the 83

strikers ordered reinstated by the Board (1 R. 113; 2 R. 837-838;

4 R. 1582).

— . quenuareenennne nae COINS Oa a RETIRE P OT ADRS AT AR REE LORE MEIN

en Wheres Oe Noe ae —

The Union, however, was not content but, as the Board

found, took the position—despite the express language of

the contract with the company—that the Company was re-

quired to negotiate with the Union respecting, and obtain

its prior approval before, the hiring of new personnel

(1 R. 238)."7 Thereupon an extended conference was ar-

ranged and took place on March 6 for four or five hours or

more (1 R. 248; 2 R. 974, 1044; 3 R. 1346, 1360, 1363) be-

tween the five members of the shop committee reinforced

by two representatives of the international union (1 R.

929; 3 R. 1347) and three representatives of the Company

(2 R. 973).

At this meeting it is undenied that the Company repre-

sentatives asked the grievance and expressed a willingness

to negotiate respecting it (1 R. 358-359; 2 R. 887, 1047;

3 R. 1848, 1355), heard the Union’s position that the hiring

was a violation of the ‘harmonious relationship’? clause of

the preamble of the Union contract (2 R. 887-888: 3 R.

1549), and discussed the Union’s position that the new men

should have been referred to the shop committee in a body

rather than individually (2 R. 888-889; 3 R. 1350). They

obtained an acknowledgment from the Union representa-

tives that all four of the newly hired men were willing to

join the Union (2 R. 889; 3 R. 1350), and that all members

of the shop committee had had full knowledge of the four

new men within a few minutes of their reporting for work

on March 2 (1 R. 498-499; 2 R. 889, 891;3 R. 1350) and were

'7On March 2, immediately upon being informed of the employ-

ment of the four new men, the shop committee protested to the

factory manager, Schwartz, claiming that under the Union’s contract

new employees could not be hired unless first found acceptable by

the shop committee. They also claimed that positions in the blanket

department were required to be filled by transfers from other de-

partments. Rapport, the Company president, participated in part

of this ten-minute discussion (1 R. 319-332, 467-469; 2 R. 652-654,

971-972; 3 R. 1199-1200).

in possession of all the facts relating thereto (1 R. 498-

499; 2 R. 889-891, 894, 1047; 3 R. 1350-1351). The employer

representatives were informed that the Union had no per-

sonal objection to any of the four new men hired (1 R.

498-499; 2 R. 889-891, 894; 3 R. 1350-1351). The Union

representatives then shifted the argument to the meaning

of the seniority provision respecting promotions (1 R. 362,

494: 2 R. 890-893; 3 R. 1351-1355). The question was dis-

cussed whether the hiring of new men and the filling of the

four new positions at the lowest wage was a ‘*promotion”’

(1 R. 324, 358, 365-366, 494; 2 R. 890-891, 892, 897), and

whether strict seniority was practicable in all instances in

view of the technical nature of the work in the blanket de-

partment (2 R. 892-894; 3 R. 1358, 1419).'* The Union rep-

resentatives then claimed that the hiring was a violation

of the seniority proposal submitted by Rapport in 1988,

but the employer representatives at the meeting pointed out

that that proposal had been rejected by the Union itself (2

R. 891-892; 3 R. 1354); and a similar claim that Rapport

had made a promise that no hiring would be done except

with the approval of the shop committee was refuted by

showing that changes had been made in the proposed con-

tract to eliminate all requirements of a closed shop nature

18 The Union claimed that appointment to a blanket department

job, even though at the lowest plant wage, was a promotion and that

senior production employees from other departments should be

transferred before new employees were engaged (1 R. 324, 358,

362, 365-366; 2 R. 890; 3 R. 1351-1352, 1419-1420). The employer

claimed that the filling of a beginner’s position in the blanket de-

partment, invariably at the minimum plant wage, was obviously

not a promotion (2 R. 890, 897, 966; 3 R. 1351-1352) and that in

any event, in the words of the seniority provision itself, it was not

“practicable” and not “consistent with efficient operation” to trans-

fer the senior janitors and common laborers to the blanket depart-

ment (2 R. 892-894, 963-964; 3 R. 1353-1355). One of the most

active of the Union representatives later admitted doubt ‘“‘as to

whether or not according to our contract we have any legal legs

to stand on” (4 R. 1774).

and that the Company had always taken the position that

the selection and assignment of new employees was a right

of the management (2 R. 891-894; 3 R. 1351, 1355, 1361-

1362). The discussion also embraced the burden which the

management bore in connection with the problems of selee-

tion and assignment of employees, the danger of prohibitive

losses which would be incurred by incompetent employees,

and the need of more men in the blanket department (1 R.

324, 328; 2 R. 893, 1045; 3 R. 1352-1354). There was a dis-

cussion of prior transfer negotiations between the foremen

and the shop committee (1 R. 325, 474; 2 R. 656, 894, 974,

1046; 3 R. 1352-1853), a suggestion that for the new posi-

tions the Union select two men and the Company two (1

R. 327, 475; 2 R. 896-897, 1048; 3 R. 1361), and the threat

of a strike as to which the Company representatives pointed

out that its contracts and the need of servicing through the

composition and mercury departments made it necessary

to keep the plant in continuous operation (1 R. 328; 2 R.

897-898 ; 38 R. 1857-1359). One of the Union representatives

expressed the view that the controversy over the hiring of

the four men was trivial and unimportant (1 R. 474, 495-

496; 2 R. 655, 886-887, 1044; 3 R. 1348).

At the March 6 meeting the Union also demanded that

one Schrambeck be discharged because the Union trial

board had voted to expel him from the Union (2 R. 667-

668, 895-896, 975, 1049; 3 R. 1356). The following day

he was expelled from the Union, on an undisclosed ground;

and then, on March 8 and 9, the Union in writing demanded,

under threat of ‘‘drastie action,’’ that the Company dis-

charge that employee (2 R. 975; 4 R. 1915, 1917). But

Schrambeck was an old and satisfactory employee; the

plant was understaffed as has been said; and the employer,

knowing of no cause for the discharge of Schrambeck,

declined the demand (4 R. 1845).

ert no tt a

The following day, March 10, there were two more dis-

cussions between the representatives of the Union and the

Company (1 R. 331-332, 477; 2 R. 976, 1051-1052), at which

the Company president pleaded with the shop committee

to avert a strike (2 R. 976-978, 980). The Union witnesses

themselves testified that the Company president then said

that ‘‘no one wins in a war”’ (1 R. 332; 2 R. 658).'° Never-

theless, on the same day, March 10, 1939, immediately after

the last conference, the Union leaders called the strike

(1 R. 333-334, 478; 2 I. 979), in which all of the em-

ployees joined except Schrambeck and two of the four new

employees (1 R. 250; 4 R. 1898-1900). The Union leaders

had asked their international union for strike authoriza-

tion on the same day that the new men had been hired,

and the local had voted to strike the following day (1 R.

248; and see the chronology set forth in the Appendix

infra).

But negotiations continued even after the strike (1 R.

252). On March 13, 1939, Harry E. Scheck, a conciliator

for the Department of Labor, held a two-hour meeting

in his office attended by the shop committeemen and Com-

pany representatives but no agreement was reached (3 R.

1364-1368), the Company declining the conciliator’s sug-

gestion that the parties submit the matter to arbitration

(2 R. 901-902; 3 R. 1367). On March 16, 1939, at another

meeting in the conciliator’s office, the Company representa-

19 The circumstances of those discussions were as follows: On re-

ceipt of a telegram from the international union authorizing a

strike (1 R. 330, 476) the shop committee and the Union president

held a conference with Rapport at which they proposed a compro-

mise involving the discharge of one of the four new men and trans-

fer of Levy to the blanket department (1 R. 250-251, 331-332, 477;

2 R. 977-978) but continued to demand the discharge of Schrambeck

(2 R. 976, 1051-1052). This meeting was adjourned until after

lunch (1 R. 477). Upon resumption, Rapport said his former de-

cision would have to stand (1 R. 332-334, 478; 2 R. 658-659, 976-

978, 980).

BOG DL A" CR GIR DI aOR a CRE: TAI Se ame. LLANE I IRICEN OL AN TAY iii

, iat nai

tive offered to take all the men back on two conditions—

that the Company be allowed to retain the four new men

and that no one guilty of vandalism be reemployed (3 R.

1374)—but the Union refused the proposal, reiterating

its demand that the four men be discharged and that the

Company agree to engage no one in the future without

the approval of the shop committee (3 R. 1875). On March

27, 1939, another meeting was held in the law office of the

Company’s attorney, at which its president and its attorney

represented the Company. In addition to the shop com-

mittee, the United States labor conciliator and an assistant

corporation counsel of the City of Chicago were also present

(3 R. 1378-1379). At that meeting emphasis was placed

upon the continued demand for the discharge of Schram-

beck (3 R. 1380-1381; 4 R. 1697, 1778-1779, 1909, 1911).

By that time many new men had been hired in the plant

and there was not room for immediate reemployment of

all the strikers, but the Company offered to take back

immediately all those for whom it had vacant positions

(3 R. 1380-1382, 1911). The Union refused to return un-

less all persons who had been employed to take their

places were discharged (2 R. 916-917; 3 R. 1380-1382: 4

R. 1930). At this meeting the matter of the interpreta-

tion of the Union’s existing contract was discussed; a

Company representative stated his belief that the Com-

pany’s interpretation had been correct (1 BR. 252: 3 R.

1381) ; and a Union representative cut off further discus-

sion, saying: “If you feel that way about it I don’t see

the use of this meeting. We might as well go’’ (3 R.

1381-1382).

There was no refusal to bargain.—Despite these facts,

the Board found, as to the hiring of the four men, that

petitioner had refused to bargain collectively ‘‘with an

open fair mind” (1 R. 256-257). Upon this finding it

predicated its order for reinstatement and back pay (1 R.

259-260, 266-267, 271-272). But the basic finding is clearly

arbitrary and unlawful, for the following reasons:

(1) From the foregoing statement of admitted and un-

deniable facts, it is clear that the Company not only nego-

tiated and collectively bargained with the Union but it

(a) recognized the Union, (b) made svuecessive contracts

with it, and (c) acceded to two of its three demands re-

specting transfers and hiring. As to the hiring of the

four men, not only were there extensive negotiations as set

forth above but the Union itself precipitated the strike as

is shown by the chronology of events from March 2 to

March 10 set forth in the Appendix to this petition.

Plainly there was no refusal to bargain.

(2) As to the provision of the Union contract relating

to seniority, the employer fully complied with its ‘‘obliga-

tion to meet and bargain with [the] employees’ repre-

sentatives respecting * * * its true interpretation’’

in accordance with the precisely applicable facts and rule

laid down by this Court in Labor Board v. Sands Mfg. Co.,

306 U. S. 332, 342-343; and the Board itself, as has been

stated, expressly found no failure to collectively bargain

with respect to the two transfer incidents here involved

(1 R. 233, 237).

(3) Assuming that there was an issue as to the inter-

pretation of the contract clause requiring that ‘‘applicants’’

be ‘‘referred’’ to the shop committee ‘‘before going to

work’’, it is undeniably true, as set forth above, that the

Company (a) referred the four new men to the committee

within a few minutes of their reporting to work, (b) the

committee had full knowledge of all the facts respecting

them, (c) the Union had no objection to them personally,

(d) they were willing to join the Union, (e) two of them

joined the strikers and the Board has ordered them rein-

— AMERY aE USI eA POR tN A NR I RAEI canes cemmeneenes |

stated with back pay, (f) the Company negotiated inten-

sively and repeatedly with the Union in the matter, and

(g) the Union nevertheless precipitately called the strike.

EER RPS ROR S I

(4) Not only did the Union not seriously rely upon the

contract provision relating to the ‘‘reference’”’ of newly

hired employees to the shop committee “before going to

work’’, but they placed emphasis upon the wholly different

clause to the effect that

Promotions shall be made in aceordance to senlority

so far as practicable, consistent with efficient operation.

(1 R. 238.)

But here there was involved no promotion; the Company

had merely hired four new employees at the minimum

plant wage; and it so pointed out in its discussions with

the employee representatives (see notes 15 and 18 supra).

“pon the Union’s insistence that the contract should be

interpreted otherwise, the Company undertook the extended

and intensive discussions set forth above.

(0) The immediate cause of the strike was at least as

uch the refusal of the employer to discharge Schrambeck

who, for some undisclosed reason, was expelled by the

Union—but there was not even an assertion that any pro-

vision or interpretation of the contract covered that situa-,

tion. Not only under the facts was there no substantial

claim by the Union respecting the interpretation of the

contract, but the Union asked no modification or amendment

thereof. Amid the confused claims, the Company did all

it could reasonably be expected to do to reach an under-

standing and still preserve what it regarded as indispens-

able in the management of its business.

(6) The employer’s only dereliction was its failure to

agree to all the Union demands. Indeed, the court below

branded petitioner’s failure to agree, or ‘‘compromise’’, as

an ‘‘intransigent attitude’’ manifesting a refusal to bargain;

and regarded unsuccessful negotiations as ‘‘purposeless

talk’’ for Which the employer alone is responsible (4 R.

2045). But Congress plainly intended that under the act

employers should not be required to agree to all employee

proposals, or indeed to any, so long as a bona fide attempt

is made to reach an understanding. As Senator Water

explained to the Senate when the measure was before it,

the measure does ‘‘not compel anyone to make a compact

of any kind if no terms are arrived at that are satisfactory

to him.’’ °° This Court has been specific that the Act does

not compel either party to agree.”

(7) What the Board, and the court below, have actually

done is take detached excerpts from the record and upon

them predicate a finding of lack of good faith. To that

finding on the record there are conclusive answers. Pre-

2079 Cong. Rec. 7571 (1935). The legislative history of the Act

is unequivocal on this point. “The bill requires no employer to

sign any contract, to make any agreement, to reach any understand-

ing with any employee or group of employees.” ‘All employers are

left free in the future as in the past to accept whatever terms they

choose.” zSenator Walsh, 79 Cong. Rec. 7660 (1935). See also Sen.

Rept. 57%, 74th Cong., lst Sess., May 2, 1935; and the decision of

the Board in Pittsburgh Metallurgical Co., Inc., 20 N. L. R. B. 1011

(1940).

*1“The Act does not compel agreements between employers and

employees. It does not compel any agreement whatever. It does not

prevent the employer ‘from refusing to make a collective contract

and hiring individuals on whatever terms’ the employer ‘may by

unilateral action determine.’” Labor Board v. Jones & Laughlin,

301 U. S. 1, 45. See also Virginian Ry. v. Federation, 300 U. S.

515, 549, 557 note; Labor Board v. Mackay Co., 304 U. S. 333, 345-

346; Labor Board v. Sands Mfg. Co., 306 U. S. 332, 348, 344.

The decision in the case at bar is sharply inconsistent with the

position manifested by the Board itself in its recent decision in

Montgomery Ward & Co., Inc., 39 NLRB No. 41, February 26, 1942,

in which, notwithstanding the employer refused to yield to the

Union’s demands for a closed shop and arbitration, the Board held

that the employer had not refused to bargain collectively. And see

National Labor Relations Board v. Express Pub. Co., C. C. A. 5,

June 12, 1942, 3 C. C. H. Labor Law Service 96110.

Sin 2 LAB HPN A NIRS ONES BENNO ES APRN AP AFORE REN INTIS AI TAD IEW

BASHA Sys Haatadanks «

liminarily, it may be noted that Congress did not intend

that, in proceedings under the Act, the inevitably sharp

interchanges in the conference room should be recanvassed :

and appraised in Board hearings. As Senator Walsh stated |

to the Senate when the then pending measure was before

it, ‘What happens behind those doors is not inquired into,

and the bill does not seek to inquire into it.’’ 79 Cone.

Ree. 7660.”

_ While it must be assumed that employer representatives

inade the statements attributed to them by the Union repre-

sentatives and found by the Board, those cannot outweigh

the obvious facts that the Company did negotiate and did

bargain collectively respecting the Union’s contentions as

*2It is notable that the Board refrained from producing the

testimony of several Union participants in the meeting. The wit-

nesses for the Board who undertook to narrate the proceedings of

the March 6 meeting were Nielson (1 R. 323-328, 355-371 ), Moore

(1 R. 248, 472-476, 491-499) and Sevenberg (2 R. 655-657, 667-668).

The testimony of these three witnesses as to what was said at the

meeting is vague, superficial, indefinite, and incomplete. They fre-

quently stated that they did not remember what was said at the

meeting on given subjects. Lanning and Bunger, national repre-

sentatives of the Union who participated in the meeting, were ex-

perienced negotiators but they were not called to testify. Lanning

was present at the hearing but was not put on the stand (4 R. 1799-

1800). One of the shop committee members, Stephen Meyers, who

was at the meeting (1 R. 529; 3 R. 1347), was twice a witness ;

for the Board (1 R. 422-424; 4 R. 1570) but on neither occasion

did he testify as to this meeting.

A stenographic report of the discussions of the five-hour meet-

ing would undoubtedly make a transcript of more than 100 pages,

yet the three Board witnesses attempted to narrate the discussion

in a few brief answers.

Not only was the manifest impossibility and unwisdom of any at-

tempt to unravel the mesh of a collective bargaining conference

recognized by Congress as shown above in the text, but had it been

intended that negotiations should be recanvassed by the Board in its

proceedings Congress would have devised a technique whereby

records of such negotiations might be made. The attempt of the

Board to depart from the salutary intent of Congress can have the

effect only of discrediting the Act and debasing procedure there-

under,

POLE TTT Ma ee SAME EOA ORT COED. Hee BEATEN CM RYE Fe OID MO RN ROIUEL TN AERP NNEP YS CARED AML AUG BRITA aM TASS aN

to the interpretation of the contract. The Board, however,

picks detached phrases as showing a closed mind (1 R.

247-249, 254-255), but plainly those warrant no such find-

ing for three reasons: (a) The statements attributed to the

Company president as of March 2 (1 R. 246-247, 254-255)

were not made in the course of bargaining but in the few

moments of conversation which occurred on the morning the

four new men were hired when the Union representatives

first stated their complaint and requested an appointment

for a subsequent conference as set forth above in note 17

and the text following it. (b) The Company promptly

arranged and held a lengthy conference, in which several

representatives of the employer participated, pleaded with

the Union thereafter to avert the threatened strike, and

negotiated even after the strike began. (¢) The phrases

italicized by the Board in reaching its conelusion (1 R.

247-249, 254-255) bear no such construction as the Board

attempts to put upon them:

Even casual inspection of the record discloses that the

parties to those conferences used their words in the light

of the claims made by the Union. When the Union claimed

that the contract meant that there must be ‘‘negotiation”’

with the Union as to the hiring of new men preliminary to

any hiring, the Company representatives took the position

that it had no such meaning and that, therefore, they were

not required by the terms of the contract to negotiate indi-

vidual cases before hiring. It was in that sense that the

Company president made the statements (1 R. 321, 322,

468, 972) attributed to him as of March 2 in the Board’s

decision (1 R. 247, 254). It was in that sense that the Com-

pany representatives again used the words ‘‘negotiate’”’

and ‘‘right’’ in the extended conference on March 6 (1 R.

248-249, 255). The point they were making was not that

they would not negotiate with the Union, and not that the

. ARRAY DME DELI TL ONO aN EN Aah tee SO oe

bam nee SS hie Minl II MEY rene om eID

Union had no right to negotiate; but they were merely stat-

ing their side of the controversy—that the contract did not

require the Company to ‘negotiate’? before each individual

hiring and that the contract by its terms did not give the

Union a ‘‘right”’ to insist upon such ‘‘negotiation.”’

These words and phrases cannot be read apart from their

context, yet by the sheerest type of verbalism the Board

has wrenched them from the background of the Union’s con-

tentions in the attempt to make it appear that the Company

denied its general duty or willingness to ‘*negotiate’’ and

denied the ‘tright’’ of the Union to have it do so. The

Board, in short, has torn a handful of words from the ree-

ord and, despite undisputed facts and events to the con-

trary effect, has made its finding of lack of good faith.

This Court has recently remanded a similarly based ease,

saving that

The employer * * * is as free now as ever to take

any side it may choose * * * We may not consider

the findings of the Board as to the coercive effect of

* " * speeches in isolation from the findings as re-

spects the other conduct of the Company. * * * If

the utterances are thus to be separated from their back-

ground, we find it difficult to sustain a finding of coer-

cion with respect to them alone. (Labor Board y. Vir-

ginia Power Co., 314 U.S. 469, 477, 479.)

That case, it may be noted, related to the initial organiza-

tion of a plant where the anti-anion bulletin and speeches

may have had general effect; whereas in the present case

the plant had been organized by the Union for two years,

two successive collective contracts had been entered by the

employer and employees, and the utterances are only those

made during the collective bargaining process in response

to the Union’s interpretation of the then existing contract

respecting the hiring of four new men.

Due regard for what this Court has long termed ‘‘the

{

Ny REY FONE IR RST: 2 00

substance, and not the shadow,’’ which determines the va-

lidity of the exercise of administrative power (Juterstate

Commerce Commission v. Illinois Central R. Co., 215 U.S.

452, 470), as well as the intent of Congress and petitioner’s

statutory and constitutional right to a fair hearing, re-

quire that this Court bring this case here for review.

In the light of the undisputed facts, petitioner has been

guilty of no refusal to bargain collectively within the mean-

ing of the National Labor Relations Act; and, without the

finding of failure to bargain, there was no basis for the

order of reinstatement and back pay.

II. ASSUMING THAT THE EMPLOYEE RELATION.

SHIP HAD NOT TERMINATED AND THAT THE

EMPLOYER HAD REFUSED TO BARGAIN COL.-

LECTIVELY, THE BACK PAY ORDER IS NEVER.

THELESS UNAUTHORIZED AND REQUIRES THE

EXERCISE OF THIS COURT’S POWER OF RE.

VIEW.

Whether or not the employee relationship had terminated

by the terms of the contract, or there had been a lack of

good faith in the bargaining by the employer, as discussed

in Point I above, the decree of the court below is neverthe-

less unlawful because (A) the remand places an unwar-

ranted burden upon petitioner, and (B) the strikers have

never offered to return to their jobs, except upon condi-

tions they had no right to impose, so that there is no

basis for the award of back pay.

(A)

In the terms of its remand of the case with instructions

to determine deductions from back pay, the court below in-

fringed the discretionary authority of the Board and im-

posed an unlawful burden upon petitioner.—The court be-

low, though sustaining the order of the Board in other re-

spects, remanded the case with instructions to the Board

to determine deductions from back pay for ‘unjustifiable

refusal by the discharged and the striking employees to

take desirable new employment’? (4 R. 2051, 2073). In so

doing, however, it confined such administrative proceeding

to action on ‘‘such additional evidence, if any’? as the Com-

pany might present. The petitioner is thus required, as

though the proceeding were a mere private suit by the

employer, to formulate its claim and theory on this subject.

The necessity of making deductions from back pay

for employees’ unjustified refusal to take other employ-

ment has been recognized by this Court. Phelps Dodge

Corp. v. Labor Board, 313 U.S. 17/, 197-200. But proceed-

ings to that end are Board proceedings, not a private suit

by the employer. National Licorice Co. y. Labor Board,

3809 U.S. 350, 362-363. As this Court has held, it is a

matter ‘entrusted to the Board’s diseretion,’’ ‘‘it is not

mechanically compelled by the Act,’ and

the Board’s order should not have been modified by

the court below. The matter should have been left to

the Board for determination by it prior to formulating

its order. (Phelps Dodge Corp. v. Labor Board, supra,

at 198-200.)

Here the Board had not considered the question. While

the Cireuit Court of Appeals had authority and was re-

quired to remand the case to the Board for a determination

of the deductions, thereafter it is for the Board to deter-

mine the theory upon which it will proceed (Phelps Dodge

Corp. v. Labor Board, supra, p. 198, note 7) and then to

present its evidence and formulate its modification of the

order. Petitioner is the respondent in the proceedings,

and it is not for it to assume the burden of pleading or

proof. To require petitioner to do those things not only

infringes the Board's disere‘ion but imposes an unlawful

PARRA

and unwarranted burden upon petitioner. That error of

the court below, therefore, requires the exercise of this

Court’s power of review.

(B)

The Board, and the court below, unlawfully ordered back

pay for a period prior to any offer of the strikers to return

to their positions.—Back pay has never been authorized or

directed as to any period prior to an offer of strikers to

return to work, and the Board did not purport to require

it here.’ But the Board found that the strikers had offered

to return to work on May 9, 1939 (1 R. 259-260); and the

Board’s order (1 R. 265-266, 271-272), as well as the decree

of the court below (4 R. 1072), requires back pay from that

fixed date on the theory that the refusal to dismiss those

who had taken their places and to reinstate the strikers on

that date was a discrimination forbidden by the Act.**

But it is not denied that the strikers did not offer to

return to their jobs unconditionally. In the course of a

*3 For the practice of the Board, see the second paragraph of note

7 of the opinion of this Court in Phelps Dodge Corp. v. Labor Board,

313 U. S. 177, 198-199. See also the Fourth Annual Report of the

Board (1939), pp. 100-102; Hemp & Co. of Ill., 9 NLRB 449, 462

(1938); C. B. Stout, d.b.a. Majestic Flour Mills, 15 NLRB 541,

565 note 26 (1939); and Somerset Shoe Co., 12 NLRB 1057, 1059

note 3 (1939), remanded for adjustment of back pay date, 111 F.

2d 681, 689-690.

It may be noted that the strikers in this case were acting upon

the theory that they would be paid during the strike and, even before

the strike began, had resolved to “demand back pay for every day

they are on strike” (4 R. 1841).

*4“Later orders have started back pay five days after applica-

tion.” Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 199 note 7.

Even assuming that there was here an offer to return to work which

the employer was bound to accept, still reinstatement is not neces-

sarily feasible instanter and the Board should have clarified and

adjusted its order respecting back pay as was required in National

Labor Relations Board v. Somerset Shoe Co., 111 F. 2d 681, 689-

690 (C. C. A. 1).

Sp ONPR MINE ee OD

hearing in a State court upon an application to restrain

violence and other unlawful conduct of the strikers, sug-

gestion was made by the local master in chancery that the

parties settle the strike; the Company promptly agreed to

take back as many of the 84 strikers as could be used with-

out displacing workers who had been obtained meanwhile

in order to keep the plant running; but the Union

would not agree unless all of the strikers were reinstated

in a body (2 R. 1018-1019; 3 R. 1398-1400) as the Board

itself found (1 R. 252, 259).

The strikers did not make any offer—they merely re-

jected the employer’s offer. The effect of their counter-

proposal was that they would assent to a settlement of

the strike only upon condition that (a) all strikers were

immediately reinstated, (b) consequently all new employees

would have to be discharged, (c) ineluding two of the four

new men whom the Union had objected to hiring just

before the strike (the other two having joined the strikers

are now required to be reinstated and are now presumably

acceptable to the Union), and (d) Schrambeck, whom the

Union had expelled and who therefore did not join the

strike, would have to be discharged. The Union ‘just

couldn’t entertain a part of these men going back and

sitting down and working with the non-union men”? (2 R.

1019; 3 R. 1399).

In other words, the strikers offered to return to work

if all their demands, which are alleged to have occasioned

the strike, were first met. It was not an offer to cease

striking and return to work, but a demand that the Company

surrender and capitulate on every point. Viewed in its

most favorable light, it was not more than a counter pro-

posal for discussion which led to various, though ultimately

fruitless, meetings between the parties (3 R. 1399-1400).

The Company in those negotiations offered to take 10 or

20 strikers back at once and the remainder (except those

guilty of violence and sabotage) as rapidly as possible

(1 R. 252; 2 R. 1018-1019; 3 R. 1398-1400), but the Union

refused. The Board itself stated that ‘‘there is no testimony

that any of the strikers made individual applications for

1einstatement’’ (1 R. 259); and the record shows that all

of the six strikers who made application for reinstatement

were given their old jobs (4 R. 1901-1906). The strike thus

continued not only beyond the date of the so-called offer of

May 9, i939, but throughout all of these proceedings and

to date.

In these circumstances, there was no offer to cease strik-

ing and return to work, and consequently there was no

refusal to reinstate strikers, such as would authorize the

Board to require back pay and fix the date from which it

could lawfully be computed. The action of the Board in

inventing such an offer and date—which the court below

accepted without question (4 R. 2047)—was arbitrary and

unlawful. It is simply an indirect means of penalizing

the employer’s failure to accede to the Union’s demands.

It requires the exercise of this Court’s power of review.

CONCLUSION.

This case presents questions important in the adminis-

tration of the National Labor Relations Act. Among them

are (1) the extension of term contracts of employment be-

yond the agreement of the parties, (2) the lawfulness of

a finding of failure to bargain where extensive bargaining

is manifest, (3) the authority of reviewing courts to limit

and prescribe administrative procedure upon remanding

a case to the Labor Board, (4) the authority of the Board

to order back pay for strikers during most of a period

of a still continuing strike, and (5) the lack of due process

or fair hearing in administrative and judicial proceedings

which ignore indisputable and admitted evidence, Conflicts

in the decisions of lower courts, the proper interpretation

and administration of the Act, and justice to petitioner

require that the case be brought here for review.

Respectfully submitted,

Homer CummMinés,

CuarLes LeRoy Brown,

Counsel for Petitioner.

July 1942.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.