National Labor Relations Board v. Raytheon Company

PETITIONER:National Labor Relations Board
RESPONDENT:Raytheon Company
LOCATION:Riverbed of the Arkansas River

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 398 US 25 (1970)
ARGUED: Feb 26, 1970
DECIDED: May 18, 1970

Facts of the case


Audio Transcription for Oral Argument – February 26, 1970 in National Labor Relations Board v. Raytheon Company

Warren E. Burger:

Number 448, the National Labor Relations Board against Raytheon Company.

Richard G. Kleindienst:

Mr. Chief Justice, and the Court please.

Warren E. Burger:

Mr. Kleindiesnt, you may proceed.

Richard G. Kleindienst:

This case comes of the Court on certiorari to the Court of Appeals for the Ninth Circuit.

It raises a specific but in the opinion of the Government a very important issue as to the administration of the National Labor Relations Act and it presents the precise question of whether on the eve up or at other about the time of a representation of election under the Act.

The employer engages in unfair labor practice activity.

Whether such unfair labor practice activity is rendered moot and therefore now susceptible to an enforcing order from the Court of Appeals by virtue of a subsequent representation election which the union lost that came after the unfair labor practice activity.

The facts in the case, I think are likewise rather direct and not controversial.

The union in the case began its organizational activities among the employees in the fall of 1964 on the eve of the representation election a few days before representatives of the company engaged in conduct which subsequently as I will outline was determined to be in violation of the Act.

And election was held, the union lost the election.

The union petition to have the election set aside and at the same time, filed unfair labor practice, filed a complaint with the Board and the charge with the Board, and the Board subsequently filed this complaint.

Thereafter, the Board heard the evidence with the respect to alleged unfair labor practice activity and issued its order against the employer to the cease-and-desist in the conduct.

Following the order of the Board, a second election was held.

Again, which the union lost, and that election was set aside for reasons that are not material here and do not appear in this record.

After the second election, the Board petitioned the Court of Appeals for the Ninth Circuit for an order in forcing its order against the respondent company.

And after that petition to the Court of Appeals, a third election was held.

And again, the union lost the election but at this time, there was no objections filed by the union or the employees with respect to the conduct of the election, and the Board certified the election as be invalid.

Warren E. Burger:

Does the record show Mr. Kleindienst whether the union’s votes increased or decreased?

What happened in this successive election?

Richard G. Kleindienst:

I believe my recollection of record is that the union’s votes decreased.

Warren E. Burger:


Richard G. Kleindienst:

Yeah, that the union’s position became stronger in the situation that I — it’s in the record here but that’s my recollection of it.

I don’t believe that that’s material one way or another to the determination of this issue, Mr. Chief Justice.

Warren E. Burger:

Well, if their votes — if their total ballot decreased as each election went on it might suggest some relationship between the companies the continuing impact, the continuing effect of the companies at a union activities would it not?

Richard G. Kleindienst:

That could possibly be it but I think —

Warren E. Burger:

At least it’s an arguable connection?

Richard G. Kleindienst:

Possibly but there’s so many other factors that could occur, turnover employees, other conduct the issues raised in the election.

I would say that you almost have to have precise evidence so the point like that Mr. Chief Justice before that would be a supportable inference all by itself from just a mere of fact if the votes went up or down, one way or another.

Now, that would be my opinion in this regard.

When the case —

Potter Stewart:

Does the record show — since you are already been interrupted.

Before you resume, there’s a record other reasons of the second elections was set aside?

Richard G. Kleindienst:

No, and I don’t believe that any inference can be gained from this record as to the fact that it was set aside.

There’s nothing with the record, and I think it would be improper for the Government to suggest inferentially or otherwise or that that second election was set aside as a result of misconduct on the part of the respondent company, and the record doesn’t show it is Mr. Justice Stewart and I don’t want to infer that it was a continuation as an improper conduct.

Potter Stewart:

Thank you.

Richard G. Kleindienst:

In the part of the company.

Now, when the matter got to the Court of Appeals for Ninth Circuit, the respondent company brought to the attention of the Court to the fact that a valid subsequent election that been held and asked the Court to dismiss all of the proceedings involved in the matter, and asked it to rely from its decision in the General Engineering case of 1962.

The Court in a per curiam decision did deny the respondent company’s motion to dismiss all the proceedings.

And I think it’s significant to point out here that they did not determine on the merits when it had before it, as a matter of fact, based upon the record considered as a whole and the law of whether in fact the respondent company was guilty of committing the unfair labor practices.

They just saw the whole — through the whole thing out on the grounds that the matter had become loop and no longer been an import as a result of the third subsequent valid election.

The Board petitioned for a certiorari raising three fundamental questions.

One, it present a very clear precise conflict between a decision of the Ninth Circuit on the one hand of the Second, Fourth and Seventh Circuits and almost identical cases.

The decision of the Ninth Circuit in the Raytheon, this case and General Engineering conflicts in the opinion of the Government with very clearly enunciated opinions of this Court dealing generally and broadly in this field.

And then finally, it presented a good question of policy with respect to the effectuation of the policies in the administration of the National Labor Relations Act.

The respondent’s argument in the case seems to be essentially predicated upon the statement that since Section 10 (e) of the Act, confers upon the Court of Appeals to review decision of the National Labor Relations Board that that discretion is a broad one and that the Court below properly exercised this broad discretion in dismissing this case on the grounds of mootness.

Now, as preface to my argument and if the Court will grant me permission, I would like to direct the Court’s attention to a case that was not cited in the Government’s brief nor in briefs filed by the respondent company.

I called Mr. Resnick Monday when they case change of my attention and indicated my desire to do so, and I believe that he would say without objection that I made.

The reason why it was not cited, it’s a decision of Mr. Justice Marshall which was written on December 15th of this term of the Court and it was handed down after the briefs on behalf of the Government were filed.

And that’s your case NRLB versus Rutter-Rex.

The reason why we file it is that the Supreme Court, this Court, very clearly and concisely set what it had set before and that is to say that the remedial powers of the National Labor Relations Board are broad.

It’s a broad discretionary power and they are subject to but limited review.

And I think that this case — this recent decision of this Court in the opinion of the Government is practically dispositive of the argument of the respondent company here.

Because the only way the respondent company can get to this point is to say that Section 10 (e) confers upon the Court of Appeals.

They brought very broad discretionary power in their review boarders of the National Labor Relations Board.

The best example of that, I think is the decision of this Court in National Labor Relations Board versus Mexia Textile which was handed down by this Court in 1949.

In that case, the issue was whether not the Board could go to the Court of Appeals to enforce its order, even if the respondent employer had voluntarily complied with the order of the Board.

And the issue was raised to the Court of Appeals that there’s no reason for you to consider this matter any longer.

The Board said that we engaged in illegal activity in conduct, we agreed with it, we have complied with it, so why haven’t order the Board enforcing conduct that we’ve already complied with or corrected.

The Supreme Court and this Court, I think correctly held that since this kind of conduct can’t be continuing in nature, the merely showing of compliance and voluntary or not by the employer with it and anyone given point of time, should not be a bar to the Board’s right to get an enforcement order, so that it would have available to it, a contempt citation and order in the event the employer came along subsequent to its voluntary compliance and engaged in similar conduct.

I think also whether the decision to Court which go to the whole question of mootness bring to bare the essential problem that’s involved in this case.

Richard G. Kleindienst:

As this Court has held and in the United States versus W.T. Grant Company, you should not dismiss a case on the grounds of mootness until only there’s reasonable expectation that there will never be a reoccurrence of the wrong again, that there’s a strong burden imposed upon the wrong doer to come forward and show that regardless of our intent or the circumstances that it’s likely that the conduct would never occur again.

And I think again as this Court has held in Walling versus Reuter, this is true, so that the courts or the administrative boards and agencies can always have in its hit pockets so to speak the arrow to its bow of a contempt citation issued by a Court in the event the wrong doer commits the wrong again.

And then finally of course just from the stand point of public policy in the administration of the Act and I think at this point that Court should be primarily concerned about because if you take the respondents argument that at first blush, he would make the Court believe either way that there is something integral and indigenous about Section 8 of the Act leading with unfair labor practice conduct to the one end and Section 9 of the Act which deals with representation elections.

Section 7 of the Act guarantees to employees the right to engage in the concern of the activities for their mutual aid and protection, and I think that this guarantee of Section 7 of the Act encompasses several portions of the balance of the Act.

One of them of course is the representation election.

Employees under this act have a right to a free environment, the Board has set, I think many times that ask ideally under the laboratory conditions that the Board would like to see exist, to organize among themselves, to designate a union as their collective bargaining agent, to have representation election whereby such a bargain agent can be certified.

But this right that is conferred upon employees in terms to self-organization is a distinct separate right under the Act in terms of its policies then the provisions that are contained in Section 8 of the Act that deal with unfair labor practice activity.

One of the reasons why you have Section 8 of the Act is to give the Board and the courts a machinery by which you can create these so-called laboratory conditions, so that employees can make a free choice with respect to the selection of their collective bargain agent, and for the employer to come along as the respondent company has in this case to say the we’ll really, they’ve had two or three shots to this election and they’ve lost it.

And what we might have done with respect to the first one and it should be rendered moot, I think begs the question because all you have to do then is to permit employers to engaged in this kind of conduct and the union could have three or four, or five, or six elections and the courts would never really have a means by which to stop the yearly go activity in conduct.

Byron R. White:

But you, Mr. Attorney General, you seem to agree that if a Court determined there is no really substantial chance of the conduct ever being repeated that it could be dismissed as a moot.

Richard G. Kleindienst:

Yes, either Jones & Laughlin Steel case of 1936.

Byron R. White:

So this is just really amongst to us a sort of the fact bound case then the here — you just want us to disagree with the judgment of the Court of Appeals that this conduct contrary to their taking really, really might occur again.

Richard G. Kleindienst:

I don’t think the Court of Appeals really went into that question, Mr. Justice White.

Byron R. White:

You think they applied the wrong standard or any standard at all?

Richard G. Kleindienst:

I don’t believe they applied in a standard at all, if they been aware of the Mexia case of this Court when it came down with the General Engineering case in 1962, I don’t think they would have ever arrived at that result.

Byron R. White:

What you’re saying is we should vacate the judgment and have them reconsidered under the right standard?

Richard G. Kleindienst:

In my opinion, what should be done is to vacate the act of the Court of Appeals, send it back to it, have it determine the unfair labor practice on the merits and the record consider just a whole and as a matter of law, and then get the Court of Appeals which I wouldn’t expect it to do but I came forth with an erroneous application of the law or exercise of its discretionary power, you’d have something before this Court of some substance in merit.

Byron R. White:

But I suppose that certain unfair labor practice could be so tied to a particular election like for example within the first election, they had a poll watch or something that they shouldn’t have.

There was a complaint about it.

Richard G. Kleindienst:

Well Mr. Justice White, that raise is a good point because not all conduct that the Board looks that as being improper conduct at the time of the election constitutes with unfair labor practice.

Byron R. White:

Well, I agree, I agree.

Richard G. Kleindienst:

— like the 24-hour rule for instance.

Byron R. White:

And also I suppose there’s some kind of conduct in connection with the election that no reasonable man would take whatever be repeated.

Richard G. Kleindienst:


As a matter of fact, I think respondent company neglected to point out the fact that of the three forms of every illegal conduct in this case that is to say interrogated in the employee and the illegal speech that this company also initiated a new grievance procedure which the Board held was unfair labor practice conduct.

This new grievance procedure is a continuing procedure presumably although the record doesn’t show, it exists today, so that as the case as all the courts held in Second, Fourth, and Seventh Circuits these unions might want to come back at some other time to attempt to organize the employees, they have the right indeed in this case the inference is strong if they would want to because they tried it three times already.

And if you had in the environmental factors that exist at this particular plan, conduct of a continuing nature which the Board is said, is unfair labor practice conduct in violation of Section 881 and Section 7 of the Act, then I think in terms of effectuating the policies of the National Labor Relations Act that these employees are not going to be able to decide the choice of their collective bargaining representative and in free environment and that’s the essential policy of the Act that’s involved here, is to be sure that the National Labor Relations Board is being given the weapon that the statute contemplated that is to say a contempt citation from the Courts of Appeals, and so that employers will restrained from engaging in a continuing form of conduct in order that at least with respect to this aspect of the Act, employees will be able to choose their collective bargaining agent in the environment free of contort and coercion or inducements, or benefits, threats are promises.

Potter Stewart:

Of course Section 10 (e) of the Act does give to the Court of Appeals a very great deal of discretion as to what they shall do in response to the enforcement proceeding.

Richard G. Kleindienst:


Potter Stewart:

And do we both know that the Court of Appeals like other courts are overburdened with a great deal of work, and as I gather it’s your adversary’s position that while and it’s almost one of confession and avoid this file perhaps moot is the wrong word here and nonetheless Section 10 (e) does not absolutely require in the Court of Appeals to give full consideration on the merits to every single enforcement petition and here in this particular case that there was perfectly good reason for them to exercise the flexibility conferred on the Court of Appeals by Section 10 (e) to simply watch this case out.

Richard G. Kleindienst:

I respectfully disagree with that —

Potter Stewart:

Well, I gather you do.

Richard G. Kleindienst:

Mr. Justice, I’d like to quote from your recent decision.

I believe that you dissented this decision but the majority of Court said this in the Rutter-Rex case that I mentioned first.

Potter Stewart:

No, I joined in the opinion of this Court. (Voice Overlap)

Richard G. Kleindienst:

This Court stated in there that the remedial power of the Board is a broad discretionary one subject to limited judicial review and let me just indicate the facts of that case, that was a backpay case where the Court of Appeals going to cut off part of that backpay award because the Board then there like in this duty the properly process and Mr. Justice Marshall, I think appropriately planned out of this act is for the benefit of employees, and not for the benefit of the Board or an employer with respect to the backpay orders.

But that was backpay order.

What this company, this respondent company, wants you to do is to completely eliminate a Section 8 limited the Act because of the intervention of a Section 9 proceeding.

And if you ever got down to the point, it seems to me in the administration of this law where an employer or a union because it now applies in terms of this illegal activity to vote, if they can ever excuse their unfair labor practice activity because they were involved in a representation election, then I think you’re in an area where Congress itself should go back and reexamine the whole thing from a standpoint of policy as to what the act was supposed to do.

Warren E. Burger:

But Mr. Attorney General, if in effects there is to be an open end injunction which is what this amounts to, it gives the Court with continuing contempt powers, there ought to be some pretty clear guidelines as to how to define a continuing impact, is that not so?

Richard G. Kleindienst:

I think it pretty well pleases itself, Mr. Chief Justice.

What these orders usually provide is that the employer will post a notice for 60 days.

After that they can take them down, and then the conduct that is usually described by a Board order is usually pretty precise relating to specific events, times and circumstances and as time goes by, I think it would be pretty difficult to go back to the Court of Appeals and try to artificially extend other conduct under a contempt citation.

As you know the courts are very reluctant to the exercise their power, their discretion, in contempt situations and in the years of practice that I had in this area, I can never recall a contempt case going to the Court of Appeals where it was claimed that they exercised that authority without regard to the specific conduct that was subject to the Board’s order.

Warren E. Burger:

Thank you.

Mr. Resnick.

Charles H. Resnick:

May it please the Court.

At the outset, I would like to respond to a question which the Mr. Chief Justice asked at the beginning of my brother’s argument.

In the three elections, the progression of voting was indeed more favorable to the union in each case.

I don’t know there has any major significant —

Warren E. Burger:

More favorable.

Charles H. Resnick:

More favorable.

The results of the elections are set out in full at page 30 of the appendix and based on the percentage the absolute numbers of course vary with the employment but on the percentage state, it showed a gradual increase.

We see the issue —

Warren E. Burger:

Well, perhaps the Attorney General was correct that it’s — that you can’t give it much weight to one way or the other but it seems to me as practical matter if you were to give it any weight.

In any degree it would that whatever the conduct of the employer is, it isn’t depressing the union’s vote getting ability.

Charles H. Resnick:

I fully concur with that, Your Honor.

We don’t set much though of by the results but to the extent that it has any impact that would be it.

We see the issue somewhat differently than the Deputy Attorney General.

This Court is asked to decide only to have narrow issue but whether on the peculiar fact and circumstances of this case, the discretion in authority vested in the Court of Appeals by the National Labor Relations Act was properly exercised.

Charles H. Resnick:

We don’t seek any broad rule of mootness only that the exercise was appropriate in this case.

The question of whether Raytheon’s conduct was protected by the First Amendment to the Constitution or Section 8 (c) of the Act is not before you.

Neither is the question of whether Raytheon’s pre-election conduct did or did not constitute unfair labor practices.

However, in order to decide the issue which is presented, some background of how the history of the case appeared to the Court of Appeals is essential.

So, I’d like to go into fact a little more in detail than the Attorney General.

As the record stood before the Court of Appeals, Raytheon was an employer of approximately 40,000 people with plants in a number of locations throughout the country.

Employees had a number of plants including two in California who are represented by unions, and there had never been a strike by Raytheon employees.

Approximately 19 petitions for election had been filed at Raytheon plants during the period between 1960 and 1966.

And prior to the case before you, no objections had been filed to Raytheon pre-election conduct in any of those and of course no elections had been set aside.

On January 4, 1965, the IUE filed a petition with the board for a representation election to be held in the unit of production maintenance employees at Raytheon’s Mountain View, California plant.

Subsequently, the International Brotherhood of Electrical Workers expressed interest in the proceeding and then election was agreed upon for February 4, 1965.

On February 2, two days before the election, Robert Hennemuth, Raytheon’s vice-president industrial relations delivered on address to eight groups of the employees, the speeches were substantially identical in conduct emphasizing the importance of voting, explaining how the collective bargaining process works, making a comparison of wages and fringe benefits with other Raytheon plants and with other companies, and requesting employee support.

In his speeches and in response the question for the audience, Hennemuth repeatedly emphasized that the election was to be a free election and as he put it, “the good old American tradition”.

He stated repeatedly that he could not and would not promise any benefits or make any threats or reprisal.

He pointed out that in a quote “We want to know, how any of you voted anyway, so don’t worry about it.”

The speeches were followed by question periods and which anyone which Hennemuth attempted to answer employee inquiries from the floor.

The questions and answers were characterized by good nature at given state.

The transcript shows six and seven interruptions by laughter on a given page.

Potter Stewart:

Oh, what laughter?

Charles H. Resnick:

Laughter from the audience.

About a week prior to the election, a Raytheon foreman named, Chris allegedly questioned one employee in the course of discussions regarding her transfer as to why she wanted the union.

Now, the Hennemuth speeches and the so-called Chris Alvarado conversations formed the sole basis for the board’s subsequent unfair labor practice charges.

The election was duly held on February 4, two days after the Hennemuth speeches and a majority of employees voted neither union.

The IUE filed a petition to set aside the election in unfair labor practice charges.

After hearing by the trial examiner, the boards set aside the election and found that Raytheon had committed certain unfair labor practices from which it was ordered to cease-and-desist.

The board’s findings were based as I said earlier upon alleged improprieties in the Hennemuth speeches and upon the conversation between the first line foreman and one employee.

A second election was conducted by the board on June 23, 1967 as the Attorney General has said.

It was subsequently set aside on grounds not apparent from the record.

On February 8, 1968, the board petitioned to the Court of Appeals for Ninth Circuit for enforcement of it unfair labor practice order.

Subsequently, on November 1, 1968, while the board’s petition for enforcement was pending, a third election was held, in which employees again rejected representation by the IUE and on November 12, the board’s regional director certified the results of the third election.

Charles H. Resnick:

After the board filed its petition for enforcement, the IUE filed a petition in the same court to review the portion of the boards order dismissing the IUE’s motion to amend the complaint.

Briefs on the merits in the court were filed on the Court of Appeals by all parties.

At the oral argument at the Court of Appeals on January 7, the Board argued its petition for enforcement fully on the merits.

The IUE argued in support of the Board’s petition fully on the merits.

Following these arguments, Raytheon’s counsel called the attention of the Court to its prior decision in General Engineering and to the fact that a certified election had been held since the filing towards the petition.

He then completed his argument on the merits.

The Court of Appeals agreed to consider on the basis of its earlier decision a motion to dismiss which Raytheon filed.

Memorandum and opposition were filed by the Board and by the IUE and appear in the appendix.

The Court of Appeals on the authority of the earlier decision in General Engineering, granted Raytheon’s motion and entered a judgment dismissing both the petition to enforce and the IUE’s petition for review.

Potter Stewart:

How recent was that earlier decision of General Engineering decision?

Charles H. Resnick:

General Engineering was decided 1962, Your Honor.

Potter Stewart:

So, it was well-known long before this —

Charles H. Resnick:

Yes, Your Honor.

Potter Stewart:

— the case arose.

I just wondered why — why this situation didn’t develop until the course of the oral argument on the merits?

Charles H. Resnick:

That’s a good question, Your Honor.

My brother tells me that in his research immediately prior to the oral argument, he went on to the General Engineering case and felt obligated to call it to the attention of the Court of Appeals.

Otherwise, it probably would have been handled in a different manner.

The decision of the Court of Appeals in the case at bar necessarily requires a careful examination of the decision in General Engineering on which it is based.

That case arose, on of the petition by the board for enforcement of a broad order, encompassing pre-election conduct, reinstatement of two unlawfully discharged employees and reinstatement of the supervisor, found to have been discharged in violation of Section 8 (a) (1).

The Court did not dismiss the entire proceeding as moot.

On the contrary, it considered in detail whether the discharge of the two employees violated Section 8 (a) (3) and whether the discharged of the supervisor violated Section 8 (a) (1).

Upon consideration, it granted in prior enforcement of the Board’s order.

As to the portion of the order dealing with the representation case only, the court held that the cease-and-desist order had been mooted by issuance of the certification of the results on the election held subsequent to the order on the review.

On these facts, the rule of law could be derived from the decision of the court below and from its prior decision in General Engineering is that where alleged unfair labor practices relates solely to an election proceeding, the Court of Appeals may, don’t have to, may dismiss a petition for enforcement of an order relating only to those practices.

Orders entered by the Board are not self-enforcing nor is the Board authorized to the levied fines or penalties for failure to comply.

Congress did not grant this power.

Instead, Section 10 (e) of the Act provides that the board shall have the power to petition the Courts of Appeal for the enforcement of its order and that the Board shall file a record with the proceedings in the Court.

The Court of Appeals not the Board is then given the power to grant temporary relief and the power to make and enter a decree enforcing, modifying and enforcing as so a modified or setting aside in all or in part the order of the Board.

Congress had considered and rejected the possibility of placing more enforcement authority in the Board and less on the Court of Appeals.

Charles H. Resnick:

The study of the legislative history of Section 10 (e) shows that such statute says the Packers and Stock Yards Act and the Interstate Commerce Act with their mandatory provisions for injunctive orders were considered before the adoption of Section 10 (e).

Instead of following the provisions of those statutes, the draftsman followed the enforcement provisions of Section 11 of the Clayton Act and Section 5 of the Federal Trade Commission Act which required the Board to seek enforcement from the Courts of Appeals, and the Courts of Appeals in turn were not required to but were given power to enforce.

As noted at page 10 of Raytheon’s brief, a specific amendment by the House of Representatives was adopted at a late stage of the legislator proceeding to change the words that since what is now Section 10 (e) from “shall make and enter a decree, so as to read shall have the power to make and enter a decree”.

It seems clear that Congress intended the order, the Court of Appeals to act not as rubberstamp for the Board’s orders but to issue such orders as the Court of Appeals on evaluation of the case felt appropriate.

Necessarily included within that power was the power to dismiss Board petitions.

As this Court said in Hecht versus Bowles, a grant of jurisdiction to issue compliance orders are hardly suggest an absolute duty to do so under any and all circumstances.

The difference in language alone would distinguished this case from Wirtz versus Glass Blowers Association cited in the Attorney General’s brief, there, as this Court obtains to point out, the labor management reporting in disclosure act of 1969, left no room for choice but required that the Court shall declare the election void and direct a new election.

The Court of Appeals acted within the proper grounds — bounds of discretion in this case, as its judgment discloses, the case had command to be heard on the transcript of the record from the Board.

On the basis of that record and the argument of counsel, it must have been clear to the Court that it was dealing in this least with a deep-rooted, hardcore offense.

On the contrary, it was dealing with inferences to be derived from speeches properly characterized by the trial examiner was made in “without ranker”, good humor give and take in a question period.

The Court of Appeals put and did conclude that the offenses were so superficial and so intertwined with the election proceeding that enforcement was not justified.

Now, the Attorney General calls your attention properly to your decision in Rutter-Rex.

The situation in Rutter-Rex was entirely different.

There the Court of Appeals was dealing with an employer whom have had already in an earlier case ordered to comply with the Board’s order.

It was the second time out when the Court of Appeals decided to modify the Board’s order with respect to backpay.

The case involved one of the most serious offenses under the Act and unfair labor practice strike in the obligation to reinstate with backpay.

In reversing the court below, this Court discuss in detail the nature of backpay orders and the burden of whom — who should bare the lost pay, the employee or the employer notwithstanding the Board’s delinquency.

I submit that our case is entirely different.

There is no backpay order. Only the initial consideration of whether an order for enforcement should issue at all.

Certainly, this Court did not intend in Rutter-Rex to overrule its prior decisions in Universal Camera or in Braunfeld.

There, the question of the limitation of review was thoroughly discussed and it’s clear that does not mean the same thing as no review.

The power to enforce, modify or set aside Board orders was given by Congress to the Courts of Appeals.

No standard was set or prescribed by Congress as to when it must exercise that power and one may decline to exercise such power.

Such decisions were left into the discretion of the Courts of Appeals subject of course to review by this Court, but review of what?

Whether there was an abuse of discretion.

The test as was stated in the Pittsburg Steamship is not whether you would make the make the decision as the Court of Appeals made where the case before you in the first instance but whether the judgment of the Court of Appeals constitutes an abuse.

Abuse has not been shown in this case, and the judgment should therefore be affirmed.

Policy arguments directed to the proposition that Raytheon if not ordered to cease-and-desist might engaged in further conduct of violating the act substitute speculation for facts.

At the time the case was a heard, almost four years had gone by and no other unfair labor practices had been charge, much less filed.

Why should the Court of Appeals be required to deal deeply into the record to decide difficult questions of statutory interpretation, constitutional questions to which they relate, when the evils against which enforcement has sought do not exist?

Charles H. Resnick:

This Court has consistently stated that the federal courts do not have jurisdiction to resolve academic questions, particularly those involve in constitutional issues.

While the Board may contend that are to seeking in order prevent unlawful conduct in the future, this case can properly be moot when the conduct sought to be enjoined as is conjectural as it is in this case.

Cases cited by the Board from other circuits are not at variance with the position for which we contend.

Those courts had and exercise of their discretion to grant enforcement on substantially different facts.

Whether they or this Court might have decided our case differently is not the question.

The question is whether they have the discretion.

Indeed, the Ninth Circuit, which decided our case has followed Mexia as we cite in our brief at — can you have the page in — as we cited in our brief at page 25.

The same panel of judges which decided our case which two of them decided subsequently the repeated case, in which way they like you to follow Mexia.

So, it has not automatically elected to move every case which has there has been subsequent election of compliance.

Byron R. White:

Mr. Resnick, what’s the consequence of holding an issue moot in a situation like this, does the Board adjudication stand?

Charles H. Resnick:

No, Your Honor.

There is no enforcement granted in this case.

Byron R. White:

Well, no enforcement but the Board has issued a final order.

Charles H. Resnick:

I supposed the order would nonetheless stand.

You’re right, Your Honor.

Byron R. White:

And the finding of an unfair labor practice in connection of the representation proceeding would stand?

Charles H. Resnick:

I believe it would, Your Honor.

William J. Brennan, Jr.:

But that’s not the way we ordinarily when we dispose — something is moved to ordinarily we like to sweep clean them around back.

Dismiss the original, isn’t it different?

Charles H. Resnick:

We don’t view this as the is the classical case of mootness, Your Honor, but only as mootness being in a shorthand term here for the Court deciding that the case was so little remaining significance that that the petition to be dismiss.

William J. Brennan, Jr.:

And what about enforcement?

But anyway, in this case the adjudication stood — the Board’s adjudication stood it was not vacated.

Charles H. Resnick:

It was not reversed, no, Your Honor.

Warren E. Burger:

You haven’t yet made an argument that courts ought to be very careful about having a prior restraint on First Amendment — exercise of the First Amendment rights, speaking to their employees.

Charles H. Resnick:

Your Honor, I feel very strongly and we argue that positions strenuously to the Court of Appeals below.

We didn’t feel that that issue was before you hear but only the question of how the Court of Appeals properly exercised its discretion but in this case we think it quite remained that the First Amendment issue certainly would had had to be considered by the Court of Appeals and they could take that into account when determining whether there was enough to this case to justify such a consideration.

We seek no broad rule of law mooting every case in which a certified election is held.

Indeed we are sure that is not the law.

We seek only the concurrence of this Court in the proposition that the Court of Appeals on the facts of how our particular case had and did not abuse the discretion to dismiss the Board’s enforcement petition.

Thank you.

Warren E. Burger:

Thank you Mr. Resnick.

Mr. Attorney General, you have about to five minutes left if you would to use it.

Richard G. Kleindienst:

I won’t burden the Court with more than just a couple of minutes as the Chief Justice please.

I’d like to begin at the end and respond to the question raised by the Chief Justice.

Section 8 (c) of the Act, confers upon employers and employees free speech right, and there is a means by which that you could determine whether or not your First Amendment rights under the Constitution had been adequately protected under that section.

But I don’t think that the respondent company here can pull itself up by its bootstraps with respect to the position it takes in this case because although I was not present when this case was argued before the Court of Appeals, I’ve argued several such cases.

I don’t know what they were thinking about and what the judges of the Court of Appeals were thinking about but I do know what the record says. with respect to this whole question of mootness, and it says this on page 48 of the appendix, and it’s a per curiam statement by the three judges, during oral argument in this Court, counsel for Raytheon made a suggestion of mootness, and the Court grant them lead to file a motion, and then the Court said accordingly on the authority of General Engineering Inc., Raytheon’s motions are granted and that proceedings are dismissed.

In General Engineering Inc., it goes off solely on the question of mootness.

And Mr. Justice Stewart raised the question well, how long is this General Engineering case been around.

It was decided in 1962, Mr. Justice but in 1963, the Seventh Circuit, and in 1956, the Fourth Circuit being aware of the General Engineering case, refused to follow it and followed a different result and as a matter of fact, relied upon this Second Circuit decision in Clark Brothers in 1947, and I honestly believe that if the Ninth Circuit had had before it the Mexia Textile case and the Clark Brothers case are they would never arrive at the result that they did in general election.

With respect to the question raised by Mr. Justice White and Mr. Justice Brennan on what happened when you declared moot, what you have is a naked ineffectual statement by the National Labor Relations Board that an employer is engaged in unfair labor practice conduct but you can’t do anything about it.

And I think that that would further complicate the situation because you would again have the total environment be clouded by a statement by National Labor Relations Board that this company didn’t engaged in illegal conduct and yet if in fact it had, there couldn’t be an order of the Court to make them cut it out and if that happened, I think the company would be under the burden always and be accused of this type of conduct.

Warren E. Burger:

It would have some of the fact, would it not, Mr. Attorney General in the sense, I’m speaking now of the existence of the determination of an unfair labor practice that if a new complaint were issued on at a later time and the conduct was similar conduct the Board certainly would have its eye on the prior determination, it would have a carryover.

Richard G. Kleindienst:

Yes, it would.

I think, what it would do instead Mr. Chief Justice would run right up the Court of Appeals and say, you gave us an order, an order these people not to do this and now that they’ve done it and we want you now to hold them guilty of contempt.

Warren E. Burger:

Well, I’m speaking — I’m on going on the assumption that there would be no continuing effect if the Ninth Circuit’s judgment was left standing and you have no enforcement order.

There would still be some impact on the unfair labor practice determination itself, would there not?

Richard G. Kleindienst:

Well, that might have some impact on the Board’s decision and than you get into problems of whether or not improper inferences or illegal influences were drawn as the result of prior conduct.

I think the best way to clean the case up really and get rid of this principle of law that inadvertently came on Ninth Circuit and doesn’t square itself with the policy of this Court whether the decision of other circuits is to send it back there and ask them to find out whether in fact this company engaged in unfair labor practice activity, if the they didn’t, then dismiss the whole kit and caboodle, and if they did, they may come susceptible to contempt citation.

Byron R. White:

That seems to me to be a little inconsistent with what you said earlier that you seem to concede that if the Court of Appeals had made the determination that there wasn’t any substantial chance of any recurrence of this conduct that it could have reach properly refuse (Voice Overlap).

Richard G. Kleindienst:

If you interpreted my remarks of saying that Mr. Justice White, I think you misunderstood me.

I said that there is conceivably some facts situation where they could. I don’t believe they exist in this kind of a case, and if you got that impression from my (Voice Overlap)

Byron R. White:

Well, I certainly did.

Richard G. Kleindienst:

Well, I’m sorry.

Byron R. White:

You mean a Court — a Court can find that in can be conceded by the union that no there’s no — really no substantial chance, no meaningful chance that this conduct will every reoccur?

Richard G. Kleindienst:

I can take —

Byron R. White:

And but nevertheless we insist that you adjudicate this — adjudicate this unfair labor practice which will take you a lot of time and energy and then if you would agree with the Board, you must enter a cease-and-desist order?

Richard G. Kleindienst:

Oh, I agree with you that, Mr. Justice White but I do not believe that this is that kind of the case.

Byron R. White:

Well, I know you and that’s — but that’s another point of why should we — you apparently take there is some standard by which of mootness or non-enforceability should be judged, and you — at the very least you claim the Court of Appeals didn’t apply it.

Richard G. Kleindienst:


Byron R. White:

If there is that kind of a standard that didn’t apply, why shouldn’t that have the job of the not us of the first applying of the standard?

Richard G. Kleindienst:

Well, I think this Court has applied the standard generally, and I think the Ninth Circuit has misapplied it.

I don’t believe that this record shows that there’s no reasonable expectation under any circumstances that this kind (Voice Overlap) had occurred.

Byron R. White:

(Voice Overlap) the Court of Appeals that have job to doing in the first instance under the right standard?

If they did it under the wrong standard, I’m not saying that (Voice Overlap) wrong.

Richard G. Kleindienst:

I fully agree to that.

I just think it did on the wrong standard, Your Honor.

I fully agree to that Mr. Justice White.

Thank you.

Warren E. Burger:

Thank you, Mr. Attorney General.

Thank for your submission.

The case is Submitted.