National Labor Relations Board v. International Van Lines

PETITIONER:National Labor Relations Board
RESPONDENT:International Van Lines
LOCATION:Allegheny County District Court

DOCKET NO.: 71-895
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 409 US 48 (1972)
ARGUED: Oct 12, 1972
DECIDED: Nov 07, 1972

ADVOCATES:
Norman H. Kirshman – for respondent
Peter G. Nash – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 12, 1972 in National Labor Relations Board v. International Van Lines

Warren E. Burger:

— next in 71-895, National Labor Relations Board against International Van Lines.

Mr. Nash, I think you may proceed now.

Peter G. Nash:

Mr. Chief Justice, may it please the Court.

This case is here on certiorari to the Ninth Circuit which denied enforcement of provisions of the National Labor Relations Board order requiring — excuse me, requiring the reinstatement of four employees who were engaged in a strike when they were discharged by their employer.

The question presented here concerns the protection which the National Labor Relations Act affords to employees engaged in a strike against their employer for an economic objective, who are discharged for that activity before they have been permanently replaced by that employer.

Thus do, such strikers have an unconditional right to reinstatement to their former jobs as the Board found or is that right to reinstatement lost if the employer can show substantial and legitimate business justifications for refusing to reinstate them as the court below found.

The facts may be briefly summarized as follows.

In August 1967, the Teamsters Union commenced an organizing campaign amongst the employees of 10 to 11 moving and storage companies within the Santa Maria, California area including the respondent, International Van Lines.

On September 21st, the Union that had obtained authorization cards from five of six of International’s employees filed a representation petition with the National Labor Relations Board, a copy of which was unserved upon the company and received by it on September 25.

A week later on October 2nd and 3rd, this Union held meetings at which the Union representatives told the employees that certain companies being organized, including International had withdrawn their consent for an NLRB election.

There was also some discussion at that time about the discharge of employees of other companies other than — than International.

In any event, the assembled employees decided to strike and did so on October 4th.

Three of International’s employees, Dicus, Manuel Vasquez, and Mr. Casillas refused to cross the picket line and the fourth, Robert Vasquez did not report for work that day because of the picket line.

The president of International, Robert McEwan obtained temporary replacements the next day, October 5th, from his brother who had a similar moving and storage company within the area and sent telegrams to Manuel and Robert Vasquez and Dicus advising them that they had been permanently replaced.

Seven days later, on October 12, the Union filed charges with the National Labor Relations Board alleging that Manuel and Robert Vasquez, Casillas, and Dicus had all been discriminatorily discharged in violation of the National Labor Relations Act.

Between October 8th and October 28th, Dicus and Manuel Vasquez each asked the president of the company, Mr. McEwan, who was then hospitalized whether each was going to have a job and neither received any commitment.

Dicus had the same experience shortly after Mr. McEwan left the hospital on October 28th.

In the latter part of November, Casillas who had prior to that time, a casual worker, asked Mr. McEwan to put him back on the availability list for call.

He received no particular commitment and he has not or had not at the time of the hearing been recalled to work.

On October 12th, Manuel and Robert Vasquez and Dicus asked Mr. McEwan to be reinstated and were refused.

The strike continued on at least through the hearing which commenced on April 3, 1968.

The Board found that the company’s employees were engaged in a protected strike to compel a consent election and that even if the objected strike was to compel immediate recognition by the company, of the Union, it was a protected strike.

Further the Board found that Manuel and Robert Vasquez and Dicus were discharged by the telegram sent on October 5th for as a matter of fact, they had not been permanently replaced at that time.

And further, that all four employees which includes — included Casillas, the casual employee, were refused reinstatement upon their unconditional offers or applications for reinstatement which further violated Sections 8 (a) (3) and (1) of the National Labor Relations Act.

The Board ordered reinstatement of all four of these employees even if that reinstatement required the discharge of strike replacements which may or may not had been hired since the time — since the time of the discharge and the refusal of reinstatement of these employees.

The Ninth Circuit found that all four of the employees have been discharged on October 5 for engaging in a protected strike which sought a consent election, but none had been permanently replaced up until that time and that as such, those discharges violated Sections 8 (a) (1) and (3) of the National Labor Relations Act.

The Court further found that the three of the strikers excluding Casillas at this point, the casual, made unconditional request for reinstatement which were denied.

And that Casillas had made a similar request, but because he was a casual employee, was not clear to the Ninth Circuit, whether in fact he had been denied reinstatement or whether there just had not yet been an opportunity for the employer to call him back to work.

The Court remanded that latter — that latter execution to the Board.

However, despite these findings and despite an assumption by the Ninth Circuit, the employees who struck after the discharge of these employees, who continued their strike, might in fact be properly considered to be unfair labor practice strikers.

Peter G. Nash:

The Court held that the discharge strikers remained economic strikers, finding that to be their status at the time they were in fact discharged.

Accordingly, although these employees had not been replaced when fired, the Court found that they were not entitled to reinstatement if the employer had a legitimate and substantial business justification for refusing to reinstate them which includes the hiring of permanent replacement since the — since their discharge.

The Court remanded the case to the Board to make this determination.

In argument, I think it might be helpful to discuss initially some of the general principles involved in this area which are not, in my judgment, disputed.

Thus, there is no dispute between the parties concerning the validity of the consistently recognized distinction between the reinstatement rights of unfair labor practice strikers and economic strikers.

Unfair labor practice strikers are those who strike activity, either begins and or is prolonged or aggravated of — by reaction against employer of unfair labor practices and economic strikers are generally everybody else.

Economic strikers are entitled to reinstatement at the end of their strike unless the employer can show some substantial and a legitimate business justification for failing to reinstate them such as the continuing presence of permanent replacers — replacements in their jobs.

The theory here is that although the employer may not discriminate against those strikers, it does have a legitimate interest in operating his business during the strike and may in the balancing of the interest and equities involved obtain permanent replacements for those strikers.

Unfair labor practice strikers on the other hand are entitled to unconditional reinstatement regardless of the employer’s business justification for not reinstating them including the presence of permanent replacements.

The theory here is that such strikers are acting to protect themselves against the illegal acts of the employer which violate the Act.

And although the employer can and has a legitimate interest in operating his business during the strike, he may not penalize his employees by permanently replacing them for the action which they’ve taken really in response to his transgression.

Further elaborating on the foregoing, it’s also clear that a strike that starts as an economic strike may in fact become an unfair labor practice strike, thus conferring the economic strikers and the unfair labor practice strikers where the employer’s commission of an unfair labor practice has the effect of prolonging or aggravating a strike.

And finally and apart from the discussion of unfair labor practice and economic strike of that distinction, I think it is also clear that the discharge of economic strikers for strike absences before they have been permanently replaced is discrimination and violates Sections 8 (a) (3) and (1) of the National Labor Relations Act.

As I say, up to this point, I think there is no disagreement between the respondent, the petitioner nor indeed by the court below.

Is that true even though or is that what this case is about even though a person who is fired before he is permanently replaced is — what if he is fired but then permanently replaced?

Peter G. Nash:

That — that is what this case is about and if that is a protected — protected strike, then in fact he has under all previous decisions as the —

He does — he does seem to be an employee until he is permanently replaced, is that it?

Peter G. Nash:

That’s correct and as a matter of fact he does — do not necessarily cease to be an employee now.

(Voice Overlap) — terminate him is by a replacement?

Peter G. Nash:

By permanent replacement, that — that is correct.

He may not fire that employee and if he fires that economic striker, he fires the economic striker prior to the time that that striker has been replaced, then that striker has the unconditional right to return to his job.

If he replaces him permanently, then he may say to him, “you’re fired”?

Peter G. Nash:

Well that issue was not involved in this particular case and that gets into the questions of the Fleetwood and Laidlaw cases which extend additional — additional rights to economic strikers, even replaced economic strikers, the right to go on a seniority register, if you will, and be called back other than discriminating against them by hiring someone in their place later on.

If they — if they never really completely terminate the right, is that total replacement?

Peter G. Nash:

The full extent of the Fleetwood and Laidlaw doctrine to the Board, I don’t think had been fully explicated or examined either by — by this Court or by the Board and I — that issue however is not involved in this particular case.

William H. Rehnquist:

Well, didn’t Mackay intimate that once a guy was replaced, that was pretty well the end of it if he was legitimately replaced under the doctrine you established?

Peter G. Nash:

Yes, but that — that proceeded by — by some number of years.

The Fleetwood decision of this Court and the ultimate Laidlaw decision of the Board which gives meaning I think to the — to the Fleetwood.

William H. Rehnquist:

You say Fleetwood then at least impart overruled Mackay?

Peter G. Nash:

To the extent that Mackay indicated that perhaps an employee could be discharged and his employment status completely eliminated or terminated by — by reasons of his replacement to the extent of the dicta, what I would call the dicta in that case is different from Fleetwood, yes.

Peter G. Nash:

I think it’s implicitly an extension of rights.

The court below, however, did find in this case that all — all four of the strikers were discharged before they had been permanent — permanently replaced, they could not, as a matter of law require any greater reinstatement rights than those of economic strikers, for that was a status that they had held at the time of their discharge.

And this is true in the Ninth Circuit’s view even if those discharges converted the strike in question and the strikers, the non-discharge strikers in the unfair — into an unfair labor practice strike and then into an unfair labor practice group of strikers.

I think that the Court’s position is erroneous for at least two reasons.

First, wholly apart from whether the four dischargees became unfair labor practice strikers are not, the respondent, because of its action and unlawfully discharging them has an unconditional obligation to reinstate them.

A classic remedy for an unlawful discharge of an employee is unconditional reinstatement for that’s the best way to restore the status quo ante.

This holds true whether the dischargee was unlawfully discharged from active duty or whether he’s unlawfully discharged from a picket line before he had been replaced.

In the latter case, the striker not having been replaced at that time — at the time of his wrongful discharge had an unconditional right to return to work.

He was terminated from that position and in order to replace and put things back into status quo, that wrongfully terminated striker should be in the same position that he was in before he was discharged which is the position of an economic striker with an unconditional ability to return.

Thus, the circuits have uniformly held that without regard to whether the strikes subsequently takes on the nature of a protest against an employer’s unfair labor practice, that that employer may not lawfully terminate economic strikers prior to the time they’ve been validly replaced and that the appropriate remedy therefore is reinstatement even if that requires the displacement of post-firing replacements.

Just as an employer may not deny reinstatement to an employee unlawfully discharged while he is actively working on the grounds that he subsequently replaced that discharged employee, so too a striking employee can have no less protection.

To hold otherwise, I think would be to recognize a distinction between non-strike concerted activities protected by Section 7 on the National Labor Relations Act, and strike activities similarly protected.

Congress did not authorize such a distinction to be made and rightly so or no one can deny that the right to legally strike is one of the paramount protected activities under the National Labor Relations Act and indeed Congress so recognized specifically in passing Section 13 of that Act.

Secondly, and contrary to the court below, the Board could properly find that by continuing to strike after their unlawful discharge, the four dischargees in this case became unfair labor practice strikers.

It is I submit a reasonable inference for the Board to make that the dischargees had added to their protest against their employer, their unlawful discharge.

And further that the unfair labor practice of firing a striker has such an effect upon a strike is to tend to prolong it.

At the very least, the Board in the exercise of its expertise may, I submit, properly conclude that the discriminatory and unlawful discharge of strikers is so likely to have an impact upon the strike itself that such an act by the employer shifts the burden to that employer to show that the strike was not in fact impacted by the illegal discharges.

Harry A. Blackmun:

Well, Mr. Nash —

Peter G. Nash:

Yes sir.

Harry A. Blackmun:

— what do you think the record shows here as to that detail, that it or it did not have an effect on the prolongation of the strike?

Peter G. Nash:

That is the second part of the argument here and I believe that the record shows quite clearly that it did have an effect upon the prolongation of the strike and certainly upon the prolongation of the strike by these four employees, who in fact they unconditionally asked to be reinstated were denied that request and continued on strike and that was back in December of 1967 and continued as strikers at least on through April 3, 1968.

So that I think without — without question at least as to those four particular employees, the strike — strike continued well on as it would have had their original grievance been resolved.

Harry A. Blackmun:

Incidentally now that I have you interrupted.

Does the record show whether they knew why they were striking?

Peter G. Nash:

The record indicates that some of the employees — some of these four employees did know — one of them at least was present at the meeting with the Union of which the employers believed withdrawal of his consent to a Board election was one of the circumstances that brought to the strike.

William H. Rehnquist:

Well you hear — you say that the Board justified in making these findings and I take it your complaint that the Court of Appeals didn’t give full weight to them.

What’s this — what’s the question before us then under Universal Camera and Pittsburgh Steamship?

We don’t simply sit in the place of the Court of Appeals and say, “Would we have upheld the Board?”

Do we?

Peter G. Nash:

Well, no.

Peter G. Nash:

The Court of Appeals merely said that even assuming that this is an unfair — that this now becomes an unfair labor practice strike after you’ve discharged these four employees, because the four employees were themselves, economic strikers at the time they are discharged, there was no way as a matter of law, no matter what the Board may show, as a matter of fact, that those four people can ever become other than economic strikers because that’s the status that they held at the time that they were discharged.

And my complaint that I bring to you today is that the Ninth Circuit is as wrong as it can be in making that kind of judgment as a matter of law, they are wrong.

That not only do those employees under the facts in this case become unfair labor practice strikers with full rights to reinstatement, but furthermore, even if they are economic strikers at the — and remain economic strikers, they are fired economic strikers who at the time they were fired, had not been replaced by anyone else and thus must be — and thus had the unconditional right to return to work on that day because they hadn’t been replaced and that the appropriate remedy for that situation is to put them back into the situation they were in when they were discharged which is an unconditional right to reinstatement regardless of what happened after the day that they were discharged.

Warren E. Burger:

Does it make any difference as to the time when the claimed unfair labor practice occurred in relation to the time of their conversion from an economic — being economic strikers to unfair labor practice strikers?

Peter G. Nash:

Oh yes, I think —

Warren E. Burger:

But they were replaced before any unfair labor practice occurred.

Peter G. Nash:

They were permanently replaced before an unfair labor practice occurred.

That is — it was not presented in this case but in my judgment, they would then be permanently replaced economic strikers who would have — would not have the unconditional right to return.

Warren E. Burger:

So their — their conversion, if we can call it that, must relate to an unfair labor practice which had existed while they were economic strikers, is that what you’re telling us?

Peter G. Nash:

If — if there is in fact to be a conversion rather than the strike starting it initially as an unfair labor — yes, there must be an unfair labor practice and then there becomes — they become unfair labor practice strikers.

Warren E. Burger:

Then — in effect then could it be said that they were striking in a dual capacity from the outset here?

Peter G. Nash:

No, because they weren’t fired until the second day of the strike.

Initially, they could not have been obviously objecting to their discharge because they hadn’t yet been discharged.

Warren E. Burger:

Yes, but suppose there was some other kind of an unfair labor practice.

Peter G. Nash:

Yes, they could very well have been dual purpose strikers in which event they would be unfair labor practice strikers unless the employer can come forward I believe with compelling evidence to disentangle the morass that he himself has caused by committing unfair labor practices and shown as a matter of fact that the unfair labor practice had nothing to do with the strike or the prolongation of the strike.

Mr. Nash, in answering the Chief Justice, you suggested and hypothetically gave that had they been replaced by — before the discharge, then that would be it.

There would be no unfair labor practice and they’d be out.

Peter G. Nash:

Had they been permanently replaced?

Yes, they’d be out.

Peter G. Nash:

Yes, they would be — at the time they were fired.

Yes.

My question, how — how is that consistent with the answer you gave Mr. Justice Rehnquist before as to the effect of Fleetwood and this Board case on Mackay?

Peter G. Nash:

That is inconsistent with the answer I gave to Mr. Justice Rehnquist to this extent, when I mean they’re out, I mean they are then replaced economic strikers at the time that they are fired and they would be returned to the position that replaced economic strikers which would mean that they don’t have the unconditional right to return to work but may have the subsequent Fleetwood and Laidlaw rights which would be the rights to come back —

Seniority list or something.

Peter G. Nash:

Right, when all things in fact do — do occur.

Harry A. Blackmun:

And your position (Inaudible) on chronology, if on which happens first really.

The discharge or the unfair or the permanent replacement if one happens the day before the other, one result ensues, it’s just the reverse by one day.

Peter G. Nash:

The employer — yes I think strictly speaking, yes.

The employer has a right during an economic strike to permanently replace striker.

And to the extent that the employer does that, he commits no violation of the National Labor Relations Act.

Peter G. Nash:

If the next day he —

He commits it by — no violation by what?

By not employing the — reemploying the striker?

Peter G. Nash:

Well first of all he doesn’t commit it by employing a permanent replacement.

Right.

Peter G. Nash:

Now, if on the next day he fires a striker even though he’s been replaced, he commits a violation of the Act.

He violates Section 8 (a) (3) as discriminatorily discharges a striker.

He has taken away whatever rights Fleetwood and Laidlaw may give him.

At the time, let’s assume no discharge on the second day, the strike ends and the employees says — and the strikers says, “I now want to come back to work.”

The employer then says, “You have no unconditional right to return to work because you were replaced, permanently replaced.

You’ll go on a Laidlaw list if you will and when an opening occurs I will be — I will be calling you under those circumstances.”

And although that issue is not present in this case, there would be no violation in the refusal to reinstate at that point.

(Inaudible)

Peter G. Nash:

Yes sir.

Is it really as simple as chronology Mr. Justice Blackmun referred to the discharge happening on one day and replacement being employed the next day.

Suppose it went that of an hour or ten minutes, any principles involved or does it just depend on whether the employer were smart enough to say, “I hire you to replace John Smith” and then advices John Smith, “You are fired” or whether he reverses that process?

Peter G. Nash:

I — I don’t know of any case on the books but in a different capacity as general counsel, as an investigator and prosecutor of unfair labor practices, I would look carefully of that set of events that you just told to see if in fact that that was not a ruse and what was not in fact intended was a discharge before replacement in those circumstances.

And there might well — very well under the facts of that case be found to be a violation.

But given a clean permanent replacement and subsequently refusal to reinstate, there would not in my judgment be a violation.

Warren E. Burger:

But that would be entirely a factual determination, wouldn’t it?

Peter G. Nash:

Yes.

Warren E. Burger:

On a case-by-case basis.

You couldn’t have a general rule about that, could you?

Except that subterfuge — to the extent that it’d be a principle that subterfuge would be penetrated.

Peter G. Nash:

Right, I think the only general principle is that you can’t discriminate against people because they exercise their rights under Section 7 of the Act and that whether there’s discrimination or not obviously involves a factual question on each case.

I think the problem — the problem with this case and the problem created by this case can best — can best be put in focus by — by a practical hypothetical.

Under the circumstances now allowed by the Ninth Circuit an employer during an economic strike fire all of his economic strikers.

At that point if the Ninth Circuit’s decision stood, those employees would have no unconditional right to return to work unless they immediately came in and said to the employer, “We want to come back to work unconditionally at this point”, before they’ve been permanently replaced.

That adds an additional risk, the risk of an unfair — the risk of an economic striker which I don’t think is justified in law nor by any of the decisions prior to the time that the Ninth Circuit came down with this decision.

It adds an additional risk that the employees must immediately come back and the strikers must immediately come back in and say, “We give up our strike.

Peter G. Nash:

We want to come back to work.”

A risk that they don’t have as economic strikers, for although they might be permanently replaced, the day of that replacement has not come to their attention immediately, they don’t feel that kind of compunction to give up their strike and I submit to allow the Ninth Circuit’s decision to stand in essence means that an employer can break strikes by violating the Act.

Thank you very much.

I’ll save the rest of my time if I may for rebuttal.

Warren E. Burger:

Thank you Mr. Nash.

Mr. Kirshman.

Norman H. Kirshman:

Mr. Chief Justice, may it please the Court.

I think the essence of the case before you and the holding of the Ninth Circuit is very simple.

The Ninth Circuit has held for a rule of evidence.

The Ninth Circuit has said, “We will not call an automatic conversion of an economic striker to an unfair labor practice striker without substantial evidence that the unlawful act of the employer has prolonged the strike.”

And I refer the Court to page 34 of our brief on the merits holding from the Court.

The Court points out in the middle of the page that the Board has made a finding — the Board has argued that the employer’s unfair labor practices substantially prolonged the strike were a significant factor in the strike.

And then the Court concludes by saying the Board adduces no evidence in support of this necessary effect.

We submit that the Ninth Circuit has done no more and no less than say that it will not accept a per se conversion.

Because the essence of an unfair labor practice striker is an individual who is on strike protesting the unfair labor practice.

It’s a question of cause and effect.

And cause and effect must necessarily require evidence.

Now the Ninth Circuit is not alone with all due respect to the General Counsel, the Ninth Circuit is in the company of the Second Circuit, and the Third Circuit, and the Seventh Circuit, in the Thompson case and the Frick case, and in the Jackson Printing.

Each case the Circuits recognized the cause and effect situation and required evidence.

I think that the Board has the burden if it is intending to impose a severe restriction of unconditional reinstatement.

Approving that the conduct of the employer prolonged the strike and the court below merely said that the economic strikers were on strike for a prior complaint that there was no unfair labor practice strike at the time they went on strike.

And that the employer’s conduct though unlawful may or may not have had a bearing under a continued picket line conduct.

And I respectfully refer the Court to the fact that the record shows that with the exception of the December 12 request for reinstatement all other request as late as April, a few days before the hearing in the case were predicated and conditioned upon the signing by the employer of a contract, and not any contract but a specific contract.

Were these employees (Inaudible)

Norman H. Kirshman:

The finding of the Board was unclear on that issue, Sir.

And that — and for that reason, the Court remanded.

The Court said that they were not — no, may I correct myself.

The Court said they were not permanently replaced at the time of the unlawful discharge.

But the Court said that the record was unclear as to whether they were permanently replaced before they applied for reinstatement.

And that was one of the issues upon which the Board — which the Court remanded to the Board for further proceedings to determine whether there was substantial business justifications.

How could an employer — how could an employer refuse to reinstate a striker if he hadn’t been permanently replaced?

Norman H. Kirshman:

There were temporary replacements hired.

He cannot legally refuse to reinstatement if they have not been permanently replaced.

But the Court did not find and the Board did not make it clear as to what the situation was when the employees applied for reinstatement.

There was the two issues, one was —

What — what difference could it make when they apply it, if they hadn’t been permanently replaced?

Norman H. Kirshman:

If they were economic strikers, they were only entitled to reinstatement if they had not been permanently replaced.

Well, until they’ve been permanently replaced they’ve got a right to reinstatement.

Norman H. Kirshman:

That’s — so far it’s true.

Are these people in this case entitled to reinstatement absent a finding if having them permanently replaced?

Norman H. Kirshman:

Because the record was not clear that at the time they applied for reinstatement —

Well, we can’t bring up another (Inaudible), why should we bring up an issue assuming they had been replaced, what would the law be?

Norman H. Kirshman:

Assuming they had been —

Why do we do give that issue up if there hasn’t been a finding on the facts that they’ve been permanently replaced?

Norman H. Kirshman:

The Court remanded it on that issue, Sir.

Well —

Norman H. Kirshman:

At — at the time they applied for reinstatement, the Court held that when they were discharged, they had not been replaced.

Well did the employer make any effort to prove that they hadn’t been permanently replaced?

Norman H. Kirshman:

The employer put in payroll record showing that certain employees were on the payroll.

But did it take — did the employer take the position if they had been permanently replaced?

Norman H. Kirshman:

I cannot answer that Your Honor.

I don’t think that the lack of —

I’m just wondering on the absence of a finding if there had been.

I gather it’s conceded they were economic strikers from the beginning — at the beginning.

Norman H. Kirshman:

Yes, Your Honor.

Well if that’s so, isn’t the rule on MacKay that — then at the time of application they’re entitled to their jobs back unless they’ve been permanently replaced.

Is it the employer’s burden to show that they had been if he is to withstand the application of that principle?

Norman H. Kirshman:

Well, we submit that the employer does not — has the burden of showing that they had not been permanently replaced, yes, Your Honor.

Warren E. Burger:

But the telegram —

Norman H. Kirshman:

That they have been permanently replaced.

Warren E. Burger:

The telegrams that were sent to them said, “You are being permanently — you are being replaced.”

They were speaking of the future time, so that — unless they did something after that to clarify it, we have a very muddy picture, haven’t we?

Norman H. Kirshman:

That’s exactly the picture that the Board certainly had before —

Warren E. Burger:

(Voice Overlap) —

The Board takes the attitude and makes the position that doesn’t make any difference whether they were permanently replaced as long as they were fired beforehand.

You don’t need a finding of that (Voice Overlap).

Norman H. Kirshman:

That’s the position of the Board Your Honor.

And the position of the Board is that that result occurs regardless of the evidence.

Whether or not there is any evidence.

And as I said, we submit that the Second, Third and Seventh Circuits provide for a more rational view of the case.

I would like to proceed at this point to an issue that may or may be before the Court but respondent has included it in it’s brief and in the answer of which we feel was in the nature of a cross petition.

And that question is fairly comprised within the question of reinstatement and threshold to it.

Before you can reach the question of reinstatement, we must have a finding of unlawful conduct in the first place.

And we believe that in our supplemental brief which was filed with the Court that the 90-day period has not run from a jurisdictional standpoint and that the Court may consider this issue if it feels that the issue is worthy of consideration.

As we have discussed, the decision of the Ninth Circuit was not a final decree.

The employer was under no obligation to do anything at that point.

The case was sent to the Board for the taking of further evidence.

Therefore, we feel that there was no final judgment for purposes of the 90-day period in respect to a petition for a certiorari.

The issue that we would like to address ourselves to is whether a strike to force the employer to consent to an election in effect to force the employer to forego his access to the Board is protected activity.

And we’ve set out in our brief the legislative history and the actual wording of the statute and the regulations.

And we conclude with all humility that the employer has an absolute right to his hearing in a representation case.

This is a statutory right.

There was a disagreement in the Congress in 1947 as to whether there should be provisions for pre-election — for pre-hearing elections and the majority and the Congress determined that the hearing was important enough so that it would set forth in mandatory terms.

The access to the Board for the hearing is critical.

It provides, one, a question into the jurisdiction of the Board in the first instance, the appropriateness of the bargaining unit eligibility to vote in collateral issues, a strike to force the employee to forego this hearing we submit is a strike in derogation of the orderly process of the Board.

It’s an invitation to a labor union to stand up and say, “Well, we will strike unless you forego your right to have the Regional Director and the Board determine whether this election should be held in the first place.

And if it is held, who should vote?”

We don’t believe that this is in the interest of the National Labor Policy.

We don’t believe it’s consistent with the spirit of the Boy’s Markets case.

We don’t believe it’s consistent with those cases that indicate that arbitration is preferable to a strike or a muscle-to-muscle confrontation.

Is this an argument that in fact this was an unfair labor practice strike in part of the Union?

Norman H. Kirshman:

Yes, Your Honor.

Yes.

Norman H. Kirshman:

We believe further that to compound this problem, this particular strike had a dual facet.

The Board found ultimately that it was a strike to force the consent and also could have been a strike for recognition.

I already covered the question of a strike to force a consent.

In respect to a strike to force an immediate recognition, I submit to the Court that the failure by the Union to notify the employer in any manner other than by receipt from the employer — by the employer from the Board of the petition itself and the failure by the Union to comply with the Boards regulations in Section (9) (c) (4) of the Act which requires an allegation in the petition of a demand for recognition and a refusal, that this basic jurisdictional defect in that petition rendered the petition a nullity.

I think that in the context of the Union’s activity here in fabricating and this is a finding by the trial examiner which was not disturbed by the Board or the Court.

That the Union have fabricated a labor dispute, willfully fabricated a dispute on a non-existent grievance that in the context of that fabrication, the failure to allege in the petition that there was a demand — that there was a refusal renders that petition fatally defective.

And the picketing which continued for more than 30 days was such a fatally defective petition.

And our opinion rendered that strike a violation of Section (8) (b) (7) of the Act.

And the authorities are quite clear that an employer has no obligation to reinstate any striker who strikes in violation of (8) (b) (7) of the Act.

I think that we have a basic question before the Court on the consent and/or recognition issues.

And that question is, “Do the processes of the Board prevail?

Are they available to the employer in the same fashion that they are available to the employees?”

Is the mandatory language of Congress and Congress didn’t say it may, it said shout.

Is the language of the implementing regulations which says that upon the filing of a petition in accordance with the rules and regulations prescribed by the Board, are they not setup as a condition proceeding to the processing of a valid petition?

Or on the alternative, do we say that the right to strike is so powerful, is so important and we do not undermine that right?

It is powerful.

It is important.

But where is the balance?

Do we invite Labor to ignore the Board, not on peripheral issues where on a basic due process — due process issue, the question of the employer’s right to a hearing, I submit that that is what the Court is faced with on the underlying threshold issues which in respondent’s view are far more significant, are far more important than the rule of evidence which has been promulgated by the court below.

We can live with a rule of evidence.

A rule of evidence can be interpreted very strictly by the Board.

They give the Board clearly said in this case that the company failed to sustain its burden of proof if it has such a burden that the unfair labor practices did not prolong the strike, I might be able to accept that as a lawyer, but the Board didn’t say that.

The Board urges an automatic per se conversion theory.

Notwithstanding the evidence, notwithstanding whether the unfair labor practice occurs one day before the strike, six months before the strike, six months after the strike.

A per se rule and I believe in the law, especially in the law of labor relations, per se rules are very dangerous.

Much in the practice of labor law and much in our functioning here in labor relations is not so much what the employer does.

It’s how he says what he does.

Norman H. Kirshman:

And for example, if an employer says, “I am going to discharge you.”

Or, “I’m going to replace you.”

There are many — there are entirely different connotations that the Board could place upon this semantical difference.

Basically, these are our three issues, the consent — a strike to force a consent is not protected activity, and the case decided by the Board do not support that properly.

(Inaudible) Your Honors, I would like to comment briefly on Washington Aluminum which is cited by the Board as this Court‘s authority for the fact of a strike for immediate recognition or any protest without notice is still protected activity.

I refer the Court to the fact that in Washington Aluminum, there was no labor union.

The employees were not represented and the employees had instant sit down strike based upon working conditions, a cold shot.

That is a far cry from International Van where there was a labor union, a petition filed with the Board, and a fabricated reason for the strike.

I submit that as a further argument for the unprotected nature of these activities is that there was no labor dispute.

And I’m well aware of the Mackay language which talks about the wisdom or unwisdom of the employee’s activities in going on strike.

Are you arguing that (Inaudible)

Norman H. Kirshman:

I am arguing that the Court of Appeals, Your Honor, should have —

You didn’t cross petition?

Norman H. Kirshman:

We believe we did, Your Honor.

Our answer was in the nature of a cross petition and we believe that it was timely and we believe that there is such plain evidence in this record.

(Inaudible)

Norman H. Kirshman:

We feel it quite possibly, Your Honor that we — that we are entitled to more than we received below because our answer was —

(Inaudible)

Norman H. Kirshman:

I think we do sir, with all due respect.

Our answer was filed raising new issues.

And although it didn’t label itself as a cross petition, I think that the fact that we attempted to raise new issues if we are not jurisdictionally untimely.

Well the way you — the way you phrase it was the addition of the question presented by the Board, respondent — respondent respectfully submits the following additional question.

Norman H. Kirshman:

Yes, Your Honor.

But as Mr. Justice White asked really, what you wanted was a denial of enforcement of the Board’s order.

Norman H. Kirshman:

(Inaudible)

What you ended up with was a remand to the Board for further proceedings.

Norman H. Kirshman:

That’s correct Your Honor.

But we got the remand on the — on the issue that we were not as concerned about.

Well that’s just it.

That’s why I wonder whether without — I mean maybe it sounds rather technical, but ordinarily if you want to raise an issue which gives you a different judgment then you’re here to defend, you have to cross petition, don’t you?

Norman H. Kirshman:

But we believe that the doctrine —

You think you have (Voice Overlap) —

Norman H. Kirshman:

Yes, Your Honor.

And further, Your Honor, we believe under the Court’s rule 23 (1) (c), if the Court believes that the issues are so interrelated that you can’t reach a question of damages which is the question of remedy without reaching the question of liability, that perhaps the Court in its discretion could take it.

Did you deliberately choose the form you did rather than cross petition?

Norman H. Kirshman:

No, Your Honor.

I must confess this is my first trip before the Court and I fumbled somewhat.

I — I would like to comment just briefly on one more issue and that is the question of the labor dispute whether or not there was a labor dispute.

I believe that under the facts in this case, the one element of Mackay which talks about the mistaken judgment of the employees or the wisdom or unwisdom of going on strike for a reason which is not correct implies good faith.

I think when you — when you examine a willful fabrication of a reason to go on strike, the element of a good faith mistake disappears and we open the door to permitting employees or a union — or a union representing employees to fashion a labor dispute out of thin air anytime they want to bring the conduct within the purview of the Act.

And once again, I believe that Section 2 of the Act says quite clearly or at least implies that the Board has no jurisdiction to inquire into a dispute which is not a labor dispute.

And there again in my attempt to bootstrap, I would believe that this Court could inquire into a jurisdictional error even if not raised in the court below.

But we did raise these issues at trial.

They were commented upon by the trial examiner, and I believe that they have merit and should be considered by the Court.

Thank you.

Warren E. Burger:

Thank you Mr. Kirshman.

Mr. Nash do you have anything further?

Thank you gentleman.

The case is submitted.