National Labor Relations Board v. Brown

PETITIONER: National Labor Relations Board
LOCATION: Louisiana General Assembly

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 380 US 278 (1965)
ARGUED: Jan 19, 1965
DECIDED: Mar 29, 1965

Facts of the case


Media for National Labor Relations Board v. Brown

Audio Transcription for Oral Argument - January 19, 1965 in National Labor Relations Board v. Brown

Earl Warren:

Number 7, National Labor Relations Board, Petitioner, versus John Brown, et al.

Mr. Come.

Norton J. Come:

Mr. Chief Justice, may it please the Court.

This case is here on certiorari to the Tenth Circuit to review the judgment of that Court, Chief Justice -- Judge Murrah dissenting, denying enforcement of the Board's order against respondents who are retail food stores in Carlsbad, New Mexico.

This case and Number 255 which follows it, involves the application of this Court's decision in the Buffalo Linen case which was decided in 1957.

In the Buffalo Linen case, as I will explain in greater detail in a moment, the Board sustained the -- this Court sustained the Board's conclusion that the nonstruck members of a multiemployer bargaining unit were privileged when one of their members was struck during contract negotiations to lockout or temporarily lay off their employees in order to protect the integrity of the multiemployer bargaining unit against the threat of the whipsaw strike that this tactic which said in motion.

The question presented in this case is whether the Board reasonably concluded that the nonstruck of members exceeded the limits of defense of the multiemployer unit and thereby committed an unfair labor practice when after laying off their regular employees in response to a strike against one of their members, they resumed the operations not with their regular employees who were ready and willing to work but with temporary replacements for their regular employees.

Number 255 which follows does not involve a multiemployer unit.

The question there is whether a single employer is privileged even though a strike is not imminent to lockout or temporarily lay-off his employees in order to advance his bargaining position.

That question was left opened by the Court in the Buffalo Linen case.

Now, to turn to the facts of this case, which is as I said before, a multiemployer of bargaining unit situation, the respondents here are members of a multiemployer unit of retail food stores which has for several years, bargained on a group basis with the retail clerks union.

In March of 1960, the parties reached a new pass on a new contract and the union called a strike against one of the stores, Food Jet.

Arthur J. Goldberg:

So far, this is like Buffalo Linen?

Norton J. Come:

So far, this is like Buffalo Linen.

The four other employers in the unit who operated six stores, treating the strike against Food Jet as a strike against them responded by sending their employees home when they reported to work telling them that they were laid off because of the strike against Food Jet.

So far, it's still like Buffalo Linen.

The difference is this, at this point, Food Jet hired replacements for the strikers which they had a right to do.

William J. Brennan, Jr.:

I know you used the word “replacement” also in the brief, but do I understand that those folks who were hired were told that they were employed only for the duration of the strike and that the strikers will be reemployed when the strike ended?

Norton J. Come:

Yes, Your Honor I --

William J. Brennan, Jr.:

You know my question is --

Norton J. Come:

Yes, Your Honor.

William J. Brennan, Jr.:

-- on that set of facts.

A replacement at least in the sense of permanent replacement started -- quite the words?

Norton J. Come:

Well, I prefer with the adjective temporary replacements and I -- by the use of the word “temporary” as I've --

William J. Brennan, Jr.:

Does that have any significance incidentally, do you think?

Is that fact that the word temporarily replacements, have any significance here?

Norton J. Come:

In the Board's view, that does not that although temporaries are less horrendous than permanents, still the use of temporaries in these circumstances would not be justified.

Byron R. White:

Well, Mr. Come, when Food Jet reopened if whatever follows -- with some replacement was temporary or permanent -- did it opened that full blast -- was it trying to also run at store with some of its other employee -- it didn't replace everyone, did it?

Norton J. Come:

As nearly as the record shows, Your Honor, well, it hired a fair complement of temporaries; I don't think that the record shows that exactly how -- how full it was.

The record reference is there as I recall them, record of page 40 and at 39.