National Labor Relations Board v. Scrivener

PETITIONER: National Labor Relations Board
RESPONDENT: Scrivener
LOCATION: Supreme Court, Bronx County

DOCKET NO.: 70-267
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 405 US 117 (1972)
ARGUED: Jan 12, 1972
DECIDED: Feb 23, 1972

ADVOCATES:
Donald W. Jones - for respondent
William Terry Bray - for petitioner

Facts of the case

Question

Media for National Labor Relations Board v. Scrivener

Audio Transcription for Oral Argument - January 12, 1972 in National Labor Relations Board v. Scrivener

Warren E. Burger:

Excuse me gentlemen, because of our changing the position on the calendar of the case just preceding you, I called the wrong case.

I called the fifth one which will be not be reached until tomorrow and I might say with respect to Dunkin against Tennessee.

It is clear you will not be reached today that you may be adjourned until tomorrow, unless you would like to hear more arguments today.

And we will hear now 70-267, National Labor Relations Board against Scrivener.

Mr. Bray you may proceed whenever you are ready.

William Terry Bray:

Mr. Chief Justice and may it please the Court.

This case involves a Labor Board determination of unfair labor practices against an employer under the National Labor Relations Act.

In this Court, only a single issue is presented.

Whether the employer by discharge of certain of his employees because they had given sworn statements when meeting with a Board agent who was investigating unfair labor practice charges against the employer, violated Section 8 (a) (4) or Section 8 (a) (1) of the Act by virtue of the discharges.

Are these independent?

William Terry Bray:

Yes, they are.

We consider them independent.

The Board held that they were independent and we have all along presented them as independent grounds for upholding the decision of the Board.

Do you have any preference?

William Terry Bray:

Do we have any preference?

We would like for the Court to find for the Board on both grounds.

We have no preferences to which ground, if the Court chooses to go on one or the other.

You mean the case people were supportive of that?

William Terry Bray:

We think that there are strong arguments supporting either ground.

I would be reluctant to say that our arguments are more strong on one ground than the other.

William H. Rehnquist:

Excuse me, Mr. Bray.

William Terry Bray:

Yes sir.

William H. Rehnquist:

On the second ground, your brief at page 17 state that the guarantee under 8 (a) (1) includes the right of employees to participate in administrative proceedings of prior practices of the Board.

I did not see any cases cited for that proposition in your brief.

Is this just to be taken as an assertion or are there cases that support it?

William Terry Bray:

No, Mr. Justice Rehnquist, the cases which we cited at page 18 of our brief make this abundantly clear and these are quoted at the top of page 18 from the Oil City Brass Works case is squarely in point on this.

The Court there did hold that the Section 7 guarantees of the employees include the right, not only of employees to participate, but to have others participate on their behalf and that employer discrimination on account of participation in Board proceedings infringe the employees' grantees under Section 7 and thus violated Section 8 (a) (1).

The Board in this case found that the discharges violated both Section 8 (a) (4) and Section 8 (a) (1).

The Court of Appeals refused, however, to sustain the Board on either ground.

On the Section 8 (a) (4) basis, the Court relied on its earlier decision in the Ritchie case and concluded that the Section 8 (a) (4) covered only the precise matters stated in that Section, that is actually giving testimony in a formal Board hearing or filing charges with the Board.