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

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.

William Terry Bray:

With respect to Section 8 (a) (1), the Court concluded that it could not uphold an independent violation of that Section because to do so would be implicitly to overrule its decision in the Ritchie case and it was unwilling to do so.

We think that the Court erred on both grounds.

With respect to the factual setting, the Court of Appeals accepted for purposes of the legal question involved and which we have presented here, the findings of the examiner as sustained by the Board.

While respondents have taken issue with our statement of the case and indeed have restated the case in their brief that essentially is a result of their view of the record evidence and what the record evidence — evidence showed.

And their view of the case was not sustained by the examiner or by the Board, and as I say, the sufficiency of the evidence questions are not here, they were not considered by the Court below, we instead are relying on what the examiner found and the Board sustained.

On that basis, the examiner?s decision is set out in full at pages 216 through 249 of the appendix and shows that the unfair labor practices here arose out of an organizational campaign among respondents employees during the spring of 1968.

The respondent is a sole proprietor engaged in the electrical contracting business in Springfield, Missouri.

On March 18, 1968, five of his six employees signed authorization cards for the Electrical Workers Union.

Respondent was notified of this the next day and upon this notification, he refused to bargain with the Union and later during the day complained to his employees about their activities.

Several days later, he discharged three of the card-signers and on the same day hired two new employees who were not affiliated with the Union.

The next day, March 21, the Union filed unfair labor practice charges regarding the discharge of the three employees on March 20.

Subsequently, the dischargees were reemployed and were working for the company when on April 17, the Board field examiner called on Mr. Scrivener to discuss the charges filed against him.

That evening, the field examiner met with the five card-signers to discuss the unfair labor practice charges and received written statements from them.

The next day, Mr. Scrivener questioned the four card-signers who were still in his employ about their meeting with the examiner and that afternoon, he dismissed all four of them purportedly because there was not enough work for them to do.

The examiner found that this was not the real reason for the discharges and that instead, the dismissals were because these employees had met with and given sworn written statements to the Board examiner.

He held that a discharge on this ground violated both Section 8 (a) (4) and Section 8 (a) (1) of the Act.

Mr. Scrivener urged that he was not subject to the jurisdiction of the Board.

The evidence taken before the examiner showed that indeed Mr. Scrivener did not meet the Boards discretionary jurisdictional standard, but that it did meet the statutory standard of affecting commerce.

This was shown by evidence indicating that Mr. Scrivener purchased something in excess of $20,000.00 of goods in Interstate Commerce during 1967 and a projected sales from a single source to 1968 were in excess of $30,000.00.

Thus the Board, I beg your pardon, the examiner found that statutory jurisdiction was met and because of the nature of the discharges for having giving a statement to the examiner — to the examiner then the trial examiner concluded that public policy required that the Board assert its statutory jurisdiction to protect participants in Board proceedings.

Because the jurisdiction would be asserted on this ground, the examiner also went ahead to consider other unfair labor practice charges, found that those unfair labor practices had occurred and recommended that the Board also remedy them.

The Board agreed with the examiner that statutory jurisdiction was shown and that public policy required its exercise of jurisdiction to protect the employees who had been discharged on the ground that they had given a statement to that Board field agent.

The Board held, however, that the other unrelated unfair labor practice charges were not something over which they should assert jurisdiction on public policy grounds and thus the Board dismissed them.

We think that the discharges here, raised as they were, under the facts as they come to this Court, solely on the fact that these employees met with and gave statements to a Board field agent investigating unfair labor practice charges against their employer, clearly come within the protections of Section 8 (a) (4) and also within the protection of Section 8 (a) (1).

We think that the Court below erred on both grounds in not sustaining the Boards order.

Section 8 (a) (4) bars discrimination against any employee by his employer because he has filed charges or given testimony under the Act.

It is our submission that this provision protects not only the matters precisely stated, that is the filing charges and testifying, but also the sort of in between actions involved here, giving sworn statements to a Board agent during the course of investigation of unfair labor practice charges that had been earlier found.

Harry A. Blackmun:

Would you draw the line if it is sworn written statements?

William Terry Bray:

That is the only thing that we need, Mr. Justice Blackmun for purposes of our case here.

The Boards position is that Section 8 (a) (4) offers broad protection for any participation in a Board proceeding.

William Terry Bray:

That need not be decided however in order to sustain holding in this case since here the employees who were discharged had given written statements to the examiner.

And —

(Voice Overlap)

William Terry Bray:

Pardon me?

Go ahead Mr. Bray.

William Terry Bray:

Our basic submission is that Section 8 (a) (4) should be construed to protect this sort of activity at the least.

William H. Rehnquist:

I would find it helpful Mr. Bray in following up your answer to Mr. Justice Blackmuns question, if you could tell us how you reached that result as a matter of statutory construction?

Perhaps you are just going to get there?

William Terry Bray:

Yes sir, I think that not only is this construction in full accord with the obvious intent of the Section and the legislative history behind it as well as with the Boards longstanding view of the Section, but also substantial policy reasons.

William H. Rehnquist:

But how as matter of English usage, I mean, is it by a broad reading of the word testimony?

William Terry Bray:

That is precisely it Mr. Justice.

We think that testimony had in the context and which it occurs here and in the context of the development of this Section itself indicates not just testifying at a formal Board hearing, but more broadly the giving of information to a Board agent at anytime during a Board proceeding.

William H. Rehnquist:

If that it is the case, why do you need a separate protection for filing charges?

Would it not just a giving of testimony be broad enough to cover filing charges if your construction is right?

William Terry Bray:

Alright suppose it could be, although the filing of charges is not the actual discussing the charges after they have been filed with the Board which we think testifying covers.

The proceedings from the time of charge is filed which triggers the Boards participation in the charge would then be protected by Section 8 (a) (4) under the testifying.

These were affidavits?

William Terry Bray:

Yes sir, they were.

And would they have been admissible?

(Inaudible) without the presence of these employees and witnesses at the hearing?

William Terry Bray:

It is my understanding they would not.

Would not?

William Terry Bray:

Not necessarily with the particular witness who gave it.

Perhaps some other witness could have provided the necessary basis for the introduction.

Or perhaps if the witnesses were unavailable for same reasons?

William Terry Bray:

Yes sir.

Now the —

It is only a question of authentication?

William Terry Bray:

In terms of putting them into evidence?

Do you have any other reasons?

William Terry Bray:

In general the rules of civil procedure govern in Board proceedings.

Rules of evidence?

William Terry Bray:

Yes sir, and it is my understanding that the affidavits would not ordinarily had been admissible into evidence as such.

Indeed, the only affidavit that was actually introduced into evidence was introduced to clarify some of the testimony given by one of the appellants which was considerably different from his affidavit.

But what if there had been available for transcription?

William Terry Bray:

Yes, certainly they would have been and indeed this is standard Board procedure and Board rule that if a witness testifies at a hearing, any statements he has given to the Board are then available for cross-examination purposes.

William H. Rehnquist:

Because the Board practice normally, when you are contemplating appellees to have a deposition along the lines provided from the rules of civil procedure?

William Terry Bray:

No, it is my understanding that the Board practice is more along the lines of what happened here.

The field agent obtains in the field a statement from the employees of what transpired with respect to the matters that he is investigating.

He then puts that in writing and has the agent, I beg your pardon, has the employee or whoever is giving the statement sign and swear to it before him and this is the only preparation in terms of having something in writing that goes on before the hearing begins.

William H. Rehnquist:

But then supposing that the witness who gave the affidavit does not show up at the hearing which I presume the question Mr. Justice Brennan asked, is the affidavit then admissible?

William Terry Bray:

I frankly do not know.

It is my understanding, of course the Board could subpoena the witness to have him come and it has broad powers to do this.

I suppose but at least to the ordinarily — the ordinary acceptance, do you say with (Inaudible)?

William Terry Bray:

Precisely and indeed the rule specifically provides for deposition although that is not the usual procedure as I understand it.

Warren E. Burger:

I take that Mr. Bray, what you are saying is that the giving of statements, written or oral to the investigative line of the Board is incidental to the filing of charges and both incidental and preliminary to testifying in the formal hearing.

William Terry Bray:

Yes, Mr. Chief Justice, it’s my submission that not only is it incidental to it, but indeed testifying is that word is used in Section 8 (a) (4) is broad enough in context to include all of the proceedings for Board agents from the time the charge is filed until such time as the hearing actually gets underway.

Warren E. Burger:

I suppose the case, civil or criminal in the federal courts or any other courts where reprisals of any kind were inflicted upon a person for giving statements to an investigator, private or public, would be dealt with by contempt proceedings, it could be dealt with by contempt proceedings on the part of the judge, could they not?

William Terry Bray:

Yes sir.

Let me —

William J. Brennan, Jr.:

Mr. Bray, may I asked on the 8 (b) (4)?

I gather testimony then has to reach giving evidence?

William Terry Bray:

That is our submission.

That was predecessor provision.

That was the language of the predecessor —

William J. Brennan, Jr.:

Or effective order under the Act because that was the cover Act?

William Terry Bray:

Precisely, and at the time Section 8 (a) (4) was enacted and it is supplanted this Executive Order, not only did Congress not indicate any intent to narrow protections offered, but the Senate memorandum quoted in our brief indicated that Section 8 (a) (4) was intended as a mere reiteration of the Executive Order and thus it is our submission that 8 (a) (4) like its predecessor covers any giving of evidence and certainly the giving of sworn statements such as here.

Further, this comports with the clear legislative purpose behind the Section as this Court explained to that purpose in Nash versus Florida Industrial Commission.

There the Court stated that Congress by enacting Section 8 (a) (4) has made clear that it wishes all persons with information about unfair labor practices to be completely free from any employer coercion against reporting them to the Board.

The reason that this type of protection is necessary is well stated in the John Hancock case, also cited in our brief and from the District of Columbia Circuit.

William Terry Bray:

These protections must be available in order to prevent the Boards challenge of information from being brought up by employer intimidation.

The basic aim was to keep free and unimpeded the channels of communications between both the Board on the one hand and the participants in its proceedings on the other and to dispel any fear by the participants that by assisting the Board in its investigation, they might be subjected to employer reprisals.

Preliminary preparations, including the taking of sworn statements such as here, are every bit as essential to an effective Board proceeding as are the filing of charges and the actual giving of testimony in a formal Board hearing and thus should be included within the scope of this Section.

As I have indicated, this interpretation for which we urge is highly consistent with the legislative history of this provision.

It — certainly under the Executive Order, under the National Industrial Recovery Act this type of statement would have been protected in Congress when it was replaced the Executive Order with Section 8 (a) (4), indicated that it did not intend to change the coverage of protection afforded.

Harry A. Blackmun:

Mr. Bray, your difficulty here in the Court of Appeals really goes back to the Ritchie case, does it not?

William Terry Bray:

Certainly, with respect to the Eighth Circuit, yes sir.

Harry A. Blackmun:

And do you know — do you recall other circumstance applied for in Ritchie?

William Terry Bray:

It was not my knowledge.

There is no certain history on it in the citing.

William J. Brennan, Jr.:

And you not know why?

William Terry Bray:

Other than the fact that in that case, I certainly know one reason why and the reason I think it’s certainly a fact.

In that case, the Board had found that the discharge involved violated other Sections of the Acts, specifically Sections 8 (a) (1) and 8 (a) (3).

The Court of Appeals had no difficulty in sustaining the order with respect to those two Sections and it held that it was reluctant to enforce Section 8 (a) (4) in the circumstances of the case.

Obviously, we had the same relief that we would have had even if Section 8 (a) (4) had been enforced because that was not the type of case that we needed to bring to this Court.

Here on the other hand, the Court has refused to give these employees any relief from what we consider to be obvious unfair labor practices and we think too that the Board correctly asserted jurisdiction in this context.

I think the case has not been brought here without the Solicitor Generals approval any way?

William Terry Bray:

That is correct, yes sir.

And that — or it may be what they sought and decided by the Solicitor General should not be brought in?

William Terry Bray:

It may well had been denied for administrative reasons.

(Inaudible)

William Terry Bray:

That is right.

This view also is consistent with longstanding Board interpretation of Section 8 (a) (4).

The Board has not always invoked Section 8 (a) (4) when other violations are involved and the remedies for those other violations would be the same as the remedies under Section 8 (a) (4).

Indeed, we think that explains the Overprotective Service Company case on which respondents rely and in which the Board merely adopted its examiners finding that it would not invoke an 8 (a) (4) violation pro forma and without considering the matter.

Where the Board has given detailed consideration to the issue, it has uniformly held at Section 8 (a) (4) is violated when an employer makes discharges because of participating in Board proceedings.

The practicalities of agency action also demand this result.

A participant in a Board proceeding often does not actually file charges or testify.

He may not testify because his testimony is cumulative as happened in the Dal-Tex case or because the cases settled or dismissed before it gets to hearing which happens in over 90% of the Boards cases according to its 35th Annual Report or the situation may be as it was here, the employer discharges his employees immediately upon learning of their assistance to the Board and before any hearing could possibly have started.

If no protection is afforded for participants in these situations and we think it is obvious that the participants will be much less willing to assist in Board proceedings and that this will impair the Board in its investigative and other statutory efforts.

William Terry Bray:

Finally, several Courts of Appeals had agreed with our view of Section 8 (a) (4), specifically the Fifth Circuit has twice sustained Board Orders finding Section 8 (a) (4) violation in essentially similar context as that presented here.

The M & S Steel Company case on page 16 of our brief as well as the Dal-Tex Optical Company case on that same page involved Section 8 (a) (4) violations where the employee was discriminated against either for giving statements through a Board agent or for appearing at a Board hearing, but not actually testifying.

The cases cited at note 11 of our brief on page 16 indicate that other Courts of Appeals had also broadly read Section 8 (a) (4) to protect participants in Board proceedings in context other than merely filing charges or testifying.

Finally, the subpoena powers under Section 11 support our view.

As I indicated, the Board could have subpoenaed these men to give the statements which they gave the agent, had they not done so willingly.

In that event, the Second Circuit has held that the Board must assert jurisdiction to protect the participants in Board proceedings.

It cannot decline to assert jurisdiction in that circumstance.

While the employees here gave their statements willingly, we think this should be encouraged, not discouraged, and that there is no sound reason for denying equal protections to the voluntary participant as to those who appear under subpoena.

Turning to Section 8 (a) (1), it was the Boards position and it is our position here that the discharges on the grounds which the examiner found, independently violated Section 8 (a) (1).

We do not think that the Court below gave any significant consideration to this issue and instead rushed it off with the explanation that to uphold an independent 8 (a) (1) violation would be implicitly to overrule Ritchie, even though Ritchie involved only Section 8 (a) (4).

It is our position that these discharges are clearly barred by Section 8 (a) (1).

That Section prohibits employer conduct that interferes with, restrains or coerces employees in the exercise of rights guaranteed by Section 7.

Section 7 in turn assures broadly that employee shall have the right to inform, join or assist labor organizations and to engage in other concerted activities for purpose of collective bargaining or other mutual aid or protection.

The Board and various Courts of Appeals have repeatedly held that Section 7 – that the Section 7 guarantees include the right to participate and given information in Board proceedings as well as the right to have others do the same without fear of being penalized by an employer for having done so.

As I mentioned, the Oil City Brass Works case as well as the other cases on page 18 of our brief established this proposition.

Further, it is well established that employer discrimination because of participating in the Board proceedings or because of doing so on behalf of others, unlawfully restrains rank and file employees in the free exercise of their Section 7 rights and thus violates Section 8 (a) (1).

Indeed the Fifth Circuit has gone so far as to hold that this is an 8 (a) (1) violation as a matter of law.

Several Courts of Appeals’ cases involved quite similar circumstances to those here.

The Electro Motive Company case at pages 18 and 19 of our brief from the Fourth Circuit held that an employer discharge of a Board participant for having given a Board agent a statement, precisely the circumstances here, violated Section 8 (a) (1).

The Southland Paint case from the Fifth Circuit similarly held that the discharge of a participant because he testified in a Board hearing and because he gave an affidavit to a Board agent violated Section 8 (a) (1).

In this latter case, the Fifth Circuit said that an affidavit given in a Board proceeding is essentially the equivalent of testifying in a Board hearing.

While both these cases involved the discharge of a supervisor, yet we think the present case is even a stronger one for invoking the protections of Section 8 (a) (1).

Supervisors generally are excluded from the protections of the Act and yet in those cases, the Courts found that they must be protected in order to protect the rights of the rank and file employees to an effective Board proceeding.

It seems to us to follow that certainly where an employee himself who is protected by the Act participates in a Board proceeding and then he is discharged for having done so, the circumstances here, that Section 8 (a) (1) has been violated because his Section 7 Rights had been infringed.

The Texas Industries case set forth at page 19 of our brief also supports our view of Section 8 (a) (1).

There the Fifth Circuit upheld the Board finding that merely asking employees about statements they had given a Board agent and for copies of those statements violated Section 8 (a) (1).

We think again that the present case where the employer goes much further and discharges the employees because they had done so is even more appropriate for invoking the Section 8 (a) (1) protections.

The reasons that we have stated with respect to Section 8 (a) (4), also many of those apply to support our construction of Section 8 (a) (1).

The legislative purpose of protecting all Board participants and assuring that all persons with information about unfair labor practices are free to come before the Board, certainly justifies this construction.

Moreover, the practicalities of agency practice and the fact that many participants do not actually testify or file charges supports our construction of 8 (a) (1) in order to assure these men that they will be protected from discharge for having come before the Board.

William Terry Bray:

Lastly, this has been the consistent Board construction of Section 8 (a) (1) over many years and this is entitled to weight.

The Section 11 subpoena powers also support this view.

As I have explained the employees could have been subpoenaed to give the statements and had they done so, it is also clear that the Section 8 (a) (1) protections are as broad as the Section 11 Subpoena Powers.

Are you not really talking about the Section 7 under the (Inaudible)?

William Terry Bray:

With respect to whether the type of activity here involved is included within Section 7, yes, but we think that that is clear.

There had been numerable holdings to that effect and we do not understand the Eighth Circuit to have denied enforcement of our order here on the grounds that this type of activity is not protected activity under Section 7.

What right under Section 7 do you think of employees are violated?

William Terry Bray:

The right of employees — the general right of employees to engage in concerted activity is or includes the right to invoke and have an effective Board proceeding to protect those rights.

This has been held in all of the cases cited in our brief and we think it is well established that right is infringed when a participant in a Board proceeding is discharged because of having done so.

As I say Judge Reese of the Fifth Circuit concluded that a discharge on this ground violated Section 8 (a) (1) rights as a matter of law.

Had these employees —

The Board then is redundant?

William Terry Bray:

Well, it is redundant if you accept my construction of Section 8 (a) (4), but there is no problem there because it is clearly established that the same activity can violate one or all of the Sections of the Act, it need not violate just one.

Had these employees been subpoenaed as I say, it is clear that they would have been protected.

Further, the mere fact that these employees appeared voluntarily rather than pursuant to a subpoena is not any ground for denying them similar protections and indeed the Fourth Circuit in the Electro Motive Company case showed that this had to be so because the effect on the protected rights is precisely the same whether or not the participant has been subpoenaed and the Court in that case held that it did not make any difference whether or not (Voice Overlap).

Would you argue in concerted activities, you only had one employee involved here rather than four?

William Terry Bray:

If we had one employee involved and he was engaged in Union activities, yes, we would argue that this was a protective right under Section 7.

In other words, I think —

As concerted activity?

William Terry Bray:

I think that — reading, if I may the language of Section 8 (a) (1), it could be within a number of the protections of Section 8 (a) (1).

It need not be just in the concerted activity.

In 8 (a) (1)?

William Terry Bray:

I beg your pardon.

Section 7.

It could be within a number to the provision of Section 7.

(Voice Overlap) Let me —

Well (Inaudible) —

William Terry Bray:

I am sorry I do not have the language of the Section, Your Honor.

Within your brief any way?

William Terry Bray:

Yes sir.

Warren E. Burger:

I think you time is up Mr. Bray.

William Terry Bray:

Thank you.

Warren E. Burger:

Mr. Jones.

Now by way of background just let me ask you a broad question first.

Is it not reasonably have part of the whole adversary process to interrogate witnesses before they are called into an adversary proceeding?

Donald W. Jones:

I think that would be true, Your Honor.

However, this case I want to emphasize at the outset, this case has a very unusual features which made it unlikely that any statements would be taken in this case from any employees.

Warren E. Burger:

How does the Board function or how do employees get to cases to the Board if any impediments are put in the way of having them freely give statements to government agents who come and call on them?

How could the Board function?

Donald W. Jones:

Well, the Board has foreseen this difficulty I think and they have and the Congress has as well.

In connection with the Administrative Procedure Act which has some provisions that make all certain government records available to the public information.

They have exempted the statements by the Board, the Congress has in Administrative Procedure Act and Congress has said these statements may be held strictly confidential.

They are exempted from the public information provisions of the Board.

So all statements taken by the Board in investigations are held to be strictly confidential by law and they cannot be, the contents of those statements are the fact that they are taking cannot be —

Warren E. Burger:

Well, what’s that got to with the need to interrogate witnesses before you call them?

You do not — lawyers do not customarily bring witnesses into a tribunal if they do not know what they are going to say, do they?

Donald W. Jones:

That is true Your Honor.

However, the statements that we are talking about are taken at a stage of the proceedings which is before any complaint has been issued and as to —

Warren E. Burger:

To determine whether a complaint should issue, is that right?

Donald W. Jones:

Right.

However, in our case, Your Honor, if I may go back to facts of this case momentarily, in this case, the facts are this.

The charge was filed containing a claim of 8 (a) (1), 8 (a) (3) and 8 (a) (5), I believe originally.

Immediately upon getting this charge, the company counsel, there was myself, wrote a letter to the Regional Director and informed the Regional Director of the Board that this company did not meet the Board?s jurisdictional standards.

They did not meet the $50,000.00 requirement for Board jurisdiction and we offered at that time to show our books and records to the NLRB so that they can see that they had no jurisdiction over this company.

At the same time, the company sent the three employees then involved who had allegedly according to those original charges been laid off sent them a letter saying, You have not been laid off, you are free to work here as usual as long as work is available, this is a misunderstanding.

We sent a copy of that the Board.

The employees came back to work.

Now, about a month later, the Labor Board agent came down to my office, as this is shown in the record and we had a meeting to go over the books and records of the company to see if in fact the Board had jurisdiction.

Now, contrary to what is said by petitioners brief, there is no evidence in the record that we discussed the merits of the charges at that time and in fact, we did not.

We discuss merely the fact of whether there was jurisdiction.

Donald W. Jones:

Now, we had no idea that Board was going to take any statements from any of our employees at that time.

There is no requirement that the Board do so.

We think the Board had no reason to take any statements from employees, if they have no jurisdiction over the company at that stage.

Now, at that stage, then, there anything prior to that time is no longer claimed to be a violation before this Court because the labor Board itself after the hearing declined to assert jurisdiction on anything up to that date.

Now, later, the next day according to the evidence, the next day after the company representative and I met with the Labor Board investigator in my office, went over our financial records which show as according to, as everyone now admits that the Board did not have jurisdiction at that point.

It was at the outset, this company was too small to meet the Boards jurisdictional standards.

This company as a result of being too small to meet the Boards jurisdictional standards, this company could not get access to the Board process as to protect it from an illegal secondary boycott which the union started out against the company on March 15, 1968 at a time when the Union representative involved in this case admits he did not represent a single employee of this employer.

So when that March 15, 1968 picketing started at an apartment house project where my client had some men working, my client did not go to the Labor Board and say, Please help us stop this secondary boycott because it violates 8 (b) (4).

Because the Labor Boards Jurisdictional Standard published said, No, no I am sorry Mr. Scrivener, you are too small for us to protect.

We have got no time to protect you.

So later when the Union came and said now as the evidence shows on the 8 (a) (5) allegation, when the union came and presented the cards to the company and said now we signed up the majority of your people, we want to bargain with you.

Even though the Supreme Court of the United States has said in Gissel Packing Company just a few years ago, that an employer has an absolute right to an election under 9 (c) (1) (b) under the Act before they have to bargain.

This company, my client could not get an election on the Labor Board because the Board has published Standard saying, No, Robert Scrivener, you are too small, we have got no time to give you an election.

We have got not time to let you have access to our processes.

So then the Union came along and this Union in this town, this particular Union in this town has a standard form agreement that the only kind of agreement they will sign is a standard form agreement which has been negotiated at the national level by the National Electrical Contact Association and International Electrical Union.

So when they presented this contract to my client and said, Now, you sign this by 6 o?clock tonight or else as shown by the record in that contract as an exhibit in the appendix.

Even though that type was demand especially when the contract contains unlawful non-mandatory subject to bargaining and would — and exceeding to that demand would require my client to delegate his bargaining responsibilities to another association in violation of his rights under law and even though this has been declared unlawful by the Board, my client could not file a charge with the Board because he is too small to protect.

So, now the Board has — the General Counsels office of the Board has attempted to use 8 (a) (4) to prosecute my client as a device when they have no jurisdiction to protect them or to prosecute him under the own published standards.

Now, I want to go to the events that brought about this layoff and I would like to clarify this.

We hear talk about discharges.

There is no evidence of any discharges on April 18, 1958.

There was an economic layoff on that date.

On April 18, 1958 which was a day or two after, I think the record shows it was the next day after the Labor Board had taken statements from the men the night before at the union hall, those statements were taken without notice to us.

We were not present.

We had no right to be present.

They were confidential.

We have no notice of it, no knowledge of it.

The next morning, the evidence shows that two of the employees and Mr. Scrivener had some conversation.

It was an isolated, neighborly conversation that people in the Ozarks customarily have in a small company like this.

It is not clear, completely clear who started the conversation, whether the employees started or whether Mr. Scrivener started it.

Donald W. Jones:

Our version is that the employee came up to Mr. Scrivener and said, Hey Bob, we talked to the Labor Board man last night.

Thurgood Marshall:

Mr. Jones, was — did the trial examiner found it?

Donald W. Jones:

The card-examiner used words similar to what the petitioner uses here that say that Mr. Scrivener questioned the employees.

We submit that the record is completely opposite to that thing.

Now, we have preserved our argument that there is no substantial evidence to support the findings of a trial examiner at every stage of the proceedings.

We urged that to the Board in our exceptions which are in detail in the appendix.

We urged that to the Eight Circuit Court of Appeals in our brief, parts of which we made an appendix through our brief and our position to a certiorari in this Court so that there are here in this Court —

Thurgood Marshall:

Well, then do you have any evidence that they were fired?

Donald W. Jones:

That there were fired?

Thurgood Marshall:

Yes sir.

Donald W. Jones:

No, Your Honor, there was not.

Thurgood Marshall:

No evidence?

Donald W. Jones:

No, here is the situation on that.

Thurgood Marshall:

No evidence?

Donald W. Jones:

There was no evidence.

There were facts.

The evidence was that they were laid off on a Thursday afternoon, April 18, it happen to occur on the Thursday afternoon.

There is absolutely no evidence that they were fired.

They were laid off at that time.

Thurgood Marshall:

What is difference in your contract and operating your claims between laid off and fired?

Donald W. Jones:

Well, the lay off have a reasonable expectancy of recall and Mr. Scrivener told him as shown by the record, as found by the trial examiner, that it was a Thursday afternoon when the men came back that afternoon after having had this brief conversation with two of them about, Hey Bob, we have talked to the Labor Board man last night.

Mr. Scrivener said, That old boy sure will not tell you much really.

This was the appellees testimony.

Mr. Scrivener did not remember this and he testified that he had no knowledge of the fact that they had even given statements at the time he laid them off on April 18.

Warren E. Burger:

But you are now arguing Mr. Jones, the weight of the evidence.

Assume for a moment, for the moment that they were terminated because they gave statements to the Labor Board investigator?

Do you maintain on that the Eighth Circuit reached the correct decision on that assumption?

Donald W. Jones:

Yes, Your Honor I do and now here is —

Warren E. Burger:

That is the legal question involved here

Donald W. Jones:

Yes, the legal question.

Donald W. Jones:

If we would assume — what you really are asking I think is does the law as now written, does the law as now written, require an interpretation of 8 (a) (1) or 8 (a) (4) that an employer that went out and said, You son of a gun you gave a statement to the Labor Board, you are fired.

Now, would that be a violation of 8 (a) (1) or 8 (a) (4) for giving a written statement?

I would say it would not be a violation of 8 (a) (1) or 8 (a) (4).

Definitely, it would not be a violation of 8 (a) (4) which on the point of giving testimony under the Act because of the meaning of the word testimony and I think that meaning is clear.

Now, however, if the purpose of the employer was to discourage unionism in doing that, it would be a violation of 8 (a) (3), it would be a violation of 8 (a) (3).

Warren E. Burger:

Well that evidence, would you have much difficulties supporting conclusion that in fact it was an interference with union activity?

Donald W. Jones:

The trial examiner so found.

The trial examiner found that that violated 8 (a) (3).

Now, we appealed that decision to the Labor Board with our exceptions.

We presented these arguments concerning the fact that the Labor Board had no jurisdiction under its own jurisdictional standards and the Labor Board did not review the findings, in fact on 8 (a) (3) that they did decline to assert jurisdiction on 8 (a) (3) on the grounds that it would not be fair for them to prosecute my client under 8 (a) (3) when he was outside their jurisdiction, under published standards which were authorized by Congress under Section 14 (c) (1) of the Act.

Congress said – Congress when enacted the labor Act, they gave the Labor Board the power consistent with the Commerce Clause, all the Power they had to, on affecting commerce but they also at a later time enacted Section 14 (c) (1) which gave the Board authority to decline, to assert jurisdiction over a certain class or category of employee — employers.

The Labor Board has exercised that power and has promulgated jurisdictional standards declining to exercise jurisdiction over a class or category of employer which in the non-retail trade and non-retail industry is $50,000.00 annually.

My client is a small employer.

He does not meet that and therefore the Labor Board through that, the 8 (a) (3), the 8 (a) (1), and the 8 (a) (5), the labor Board at page 275 of the appendix —

Warren E. Burger:

Now, again Mr. Jones, I am looking at the petition for certiorari here.

The petition was sought and granted to determine whether the discharge of an employee because he is given a written statement of the Board during the investigation is a violation of 8 (a) (1) and (4) and I don’t think we need to go into any other matters or spend any time on any other matters?

Donald W. Jones:

Your Honor, I think it is very important for this Court to consider this case on the facts of this case.

Now —

Warren E. Burger:

Well, we will consider them and we will hear argument within the framework of the question presented by the petition and by the writ, but there is no use in spending time beyond that.

Donald W. Jones:

Yes.

Let me go to the Boards decision in this case.

William O. Douglas:

There was no classification here whether or not the company is in commerce?

Donald W. Jones:

No, Your Honor.

William O. Douglas:

And the Court of Appeals is against you and the Board is against you on that?

Donald W. Jones:

No, Your Honor, here is my position on that and I think that I am correct on this.

In the Eighth Circuit, we had roughly six arguments which had been preserved at all stages.

Those arguments were lack of statutory jurisdiction, we claim that the Board did not even prove statutory jurisdiction.

Warren E. Burger:

Well, whatever you have there, there is only one question here as in fact?

Donald W. Jones:

Well —

Warren E. Burger:

They come back to?

Donald W. Jones:

I see what Your Honor is referring to.

The point is in my opinion, if the Court, I want to make this clear that if the Court were to decide against me, I do not think this would mean an outright reversal because the other five points we urged in the Eighth Circuit had never been considered.

The Eighth Circuit decided for us on one of the six points.

William O. Douglas:

As you said that you were marginally under the Act?

Donald W. Jones:

Yes, and —

William O. Douglas:

They did not say your marginally outcome under the Act?

Donald W. Jones:

They did say that.

They did not review the substantial evidence question.

William O. Douglas:

Right.

Donald W. Jones:

They did not review the constitutional question as to whether or not it is Due Process of law or a violation of the Administrative Procedure Act to prosecute an employer who is too small to protect under their jurisdiction standard, to use their jurisdictional standards in an arbitrary and capricious and discriminatory manner to prosecute the employer who is too small to protect.

They did not decide that.

And in fact, while I am mentioning that point, the Peterson case that the Second Circuit Court of Appeals’ is squarely on the point in my position on that point because that is —

Byron R. White:

You simply say that here you can just support the judgment of the Court of Appeals on any grounds that would support it?

Donald W. Jones:

I think that that is proper.

That if the Court of Appeals in the Eighth Circuit was correct on any grounds, I would like to have this Court sustain it on that grounds alone, but I do want to hasten to the —

William O. Douglas:

I thought you said they passed it only one ground?

Donald W. Jones:

They passed on only one ground.

William O. Douglas:

Our normal practice would be, if we disagree with you on the point is here, we would remand to the Court of Appeals (Voice Overlap)?

Donald W. Jones:

Well, I will go on to * (a) (4).

Now, there is no issue here in my judgment on 8 (a) (1).

I want to make that clear.

There is no issue here on 8 (a) (1).

I refer to the Boards decision at page 275 on the appendix.

In these circumstances we find that equal and effective administration of the process of the Act require us to limit our exercise of jurisdiction to limiting the Section 8 (a) (4) violations.

The Board did no assert jurisdiction on 8 (a) (1).

The Board asserted jurisdiction only on 8 (a) (4) and I also disagree that 8 (a) (1) was ever involved in this case on any basis related to the 8 (a) (4) issue other than as a derivative issue.

8 (a) (4) — 8 (a) (1) was always considered derivative.

The Boards decision makes that clear.

This is standard practice.

I point this out in my brief in our position to certiorari.

William J. Brennan, Jr.:

Well, then I take it then that – really what Chief Justice had suggest we ought to get to this 8 (b) (4) and if we decide against you, say that the Court of Appeals, now you decide the other questions, is that right?

Donald W. Jones:

I think that would be proper.

Warren E. Burger:

You have just got about 10 minutes left to cover that.

Donald W. Jones:

Alright, thank you Your Honor.

Now, on the 8 (a) (4), we contend that when 8 (a) (4) says — well, first of all, let me know at this point.

When we are considering 8 (a) (4), we are only considering the portion of 8 (a) (4) referring to testimony under the Act.

There is no claim here that any of the employees involved gave any charges under the Act.

They gave the – the question is whether or not the statements they gave were testimony and so we are not concerned with any — whether or not 8 (a) (4) is violating in regard to charges.

This is only statements, whether it is testimony — whether it is statements or testimony?

We contend that the word testimony as used by Congress is one that has been long understood by lawyers, legislators and Courts.

We cite several cases of general application on the use of that word.

Congress obviously knew what the word testimony meant when they used it in the statute.

Congress used that word, they did not use the words statements.

They did not use the word of broader application.

They use a technical, legal term testimony and we contend that the statute on its face is clear and unambiguous and that it should be so read and that the Eighth Circuits interpretation of it is just exactly what Congress wrote.

Thurgood Marshall:

Was the purpose to ensure that the employee would have a right to give his information to the NLRB?

Is that the main purpose and that he should not be punished for it?

Donald W. Jones:

The — I think the purpose was exactly what Congress — I have to rely on finding the purpose of Congress upon exactly what they said.

I think the purpose, at least it appears to me, that when Congress wrote 8 (a) (4), they said the employees need protection in two cases, in two situations.

One, where they file a charge and directly confront their employer, we do not want them to be fired or discriminated against because they filed charges, that issue is not here; two, where they gave testimony in a Board hearing.

Now before and if you look at whole Act together, under a Board hearing when the charge is filed and it’s investigated and a complaint is issued and notice of hearing.

At the hearing, the employer has a right to appear cross-examine the witnesses, including any employees who gave testimony, the employer has a right to cross-examine.

Thurgood Marshall:

But before you get to that, and how under the Sun does the Board get its charges if it does not talk to the employees?

Donald W. Jones:

That is true.

It is not set forth in the statute how the Board goes about their investigation and how the rules do —

Thurgood Marshall:

Well how could the Board find out that the employees have a grievance?

Donald W. Jones:

Well, it is clear under the law as this Court held in Nash versus Industrial Commission in Florida and another case, it is clear under the law and under the statute that the Board itself cannot initiate a charge which incidentally, that is another point.

Thurgood Marshall:

That is not what I am talking about, but how will they ever know about it?

Donald W. Jones:

A charge has to be filed by some person and then the Board investigates as they deem —

Thurgood Marshall:

Well I guess I am back with Chief Justices original point.

Thurgood Marshall:

When you are talking to your witness before and he is not protected.

Donald W. Jones:

Oh!

I do think he is protected.

I never did give in making that point.

I think there is ample protection.

Congress has provided a criminal penalty which is ample protection.

Now, if you say an employer says to an employee, I am going to fire you because you gave a statement to the Labor Board.

Well, if his purpose is violated 8 (a) (3), then that is protection.

However, if you say —

Thurgood Marshall:

Well how about if the employer says, You were talking to the Labor Board man last night and then this lady and says to him and oh, by the way, I am sure the business is going to lay you off, that is not protected?

Donald W. Jones:

In Section 12 of the Act, Congress provides a criminal penalty for anyone interfering with Board processes or the performance of the duties of the Labor Board investigator or agent of any Board member.

There are criminal penalties there.

These provides ample protection so to merely construe 8 (a) (4) —

Thurgood Marshall:

That is ample protection for the employee?

Donald W. Jones:

I think it would be.

I certainly think it would be ill advice for an employer to do anything to an employee that would be interfering with the Board agent?s powers if it were subject to $5,000.00 penalty.

Thurgood Marshall:

Is there much difference — is there a lot different in the standard of proof under criminal prosecution in a hearing before and then allowed to (Inaudible)?

Donald W. Jones:

Yes, there is obviously and —

Thurgood Marshall:

Well why is this rule about the testimony for?

Donald W. Jones:

Well, it think it is —

Thurgood Marshall:

Because if you do not need the testimony provision, if you got the criminal provision?

Donald W. Jones:

Congress says, provided — I think Congress saw that an employee who appeared in open court against his employer when his employer was sitting there and listening to every word, cross-examining, the employer was present, I think that is what Congress meant to protect.

Thurgood Marshall:

(Inaudible) wholly wasn’t the case.

Donald W. Jones:

Well, if the employee had given testimony, he is protected for against any discrimination for that testimony once the employer heard.

I do not think Congress meant to say that an employer could be held guilty of discriminating against an employee for something an employee said in a secret statement about which the employer has no knowledge.

Now, how can — in all these 8 (a) (4) cases and I include the ones cited by the petitioner and I believe in every one of them that I can recall at least, there may be one or two exceptions that I do not recall, but in everyone that I recall, when the Board finds an 8 (a) (4) violation, they find it on the basis that there were some adverse testimony to the employer.

Now, we do not — now on this record there is only one statement in the evidence that of Don Cockrum (ph).

The other three men said they gave statements to the Labor Board investigator.

They did not say they were written and sworn.

There is no evidence that the other three gave written and sworn statements.

Donald W. Jones:

How could this employer know whether the statements given were helpful or harmful?

How could he be motivated to discriminate against the employees if he did not know what they had said or anything?

And I think Congress — I think Congress never, never even considered that 8 (a) (4) might be possibly used to put an employer in a situation with this one he is in.

Warren E. Burger:

I think we have your points counsel.

The case is submitted.