Textile Workers Union of America v. Darlington Manufacturing Company

PETITIONER:Textile Workers Union of America
RESPONDENT:Darlington Manufacturing Company
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 37
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 380 US 263 (1965)
ARGUED: Dec 09, 1964 / Dec 10, 1964
DECIDED: Mar 29, 1965

Facts of the case

Question

  • Oral Argument – December 09, 1964
  • Audio Transcription for Oral Argument – December 09, 1964 in Textile Workers Union of America v. Darlington Manufacturing Company

    Audio Transcription for Oral Argument – December 10, 1964 in Textile Workers Union of America v. Darlington Manufacturing Company

    Earl Warren:

    — Worker’s Union of America, Petitioner versus Darlington Manufacturing Company et al. and Number 41, National Labor Relations Board, Petitioner versus Darlington Manufacturer Company.

    Sam J. Ervin, Jr.:

    Mr. Chief Justice, may it please the Court.

    There has nothing whatever in the history — list of history in the National Labor Relations Act that indicates any congressional purposed to the private enforce of their right to withdraw from business at anytime for any reason.

    On the contrary, there was have — the legislative history shows the contrary.

    This Act had its genesis in the Wagner Act.

    When the Wagner Act was before Congress, congressman Griswold of Indiana, a ranked member of the committee which reported the Bill for the House assured the House that they have the House’s assurance, there is nothing in the Bill to keep an operator from closing his plant and when the White Act was before the senate, Senator Walsh, chairman of the Senate Committee which reported the Bill, gave this assurance to the senate.

    Now, some fundamental rights an employer has just as our rights an employer — an employee has.

    No one can impel — compel an employer to keep his factory open.

    So in dealing with this Bill, we have not gone into that domain.

    The Wagner Act was subsequently converted to the National Labor Relation Acts by subsequent amendments.

    The Act in its present form, uses the term employee 78 times, the term employer 64 times, the term employment, 22 times and the term commerce which it defines to mean interstate commerce, 31 times.

    In all essences, the terms employee, employer, employment and commerce are used in the Act in context which disclose that congressional purpose of the Act is to secure to employees the right to organize and bargain, collect to represent just their own to choosing it with their employer in respect to rates of pay, wages, hours of employment and other conditions of employment, and to forbid the employer for the engaging in unfair practices interfering with such rights, so long and so long only, as the employment relation exists between the employees and their employer, and so long and so long only, as their employer is engaged in interstate commerce or in an industry affecting interstate commerce.

    There is not a syllable, a word, a phrase, a paragraph or a section in the Act, which can be reasonably construed to deny to any employer in the private business, the power to remove himself from the regulatory power of Congress under the interstate commerce clause at any time for any reason by vehemently going out of business.

    If Congress had undertaken to pass an Act of that character, it would not only have exceeded its power under the interstate commerce which is restricted to the power to regulate people while they engaged in interstate commerce or in an industry affecting interstate commerce, but it would have been reported to the economic rights secured to Americans by the Due Process Clause of the Fifth Amendment.

    It would have denied Darlington as a corporation, the right of property that it — one of the fundamental rights of property to which is a right secured for that — of a clause, to go out to this sale of its property at any time it pleases — and also it would have denied the right protected by the Due Process Clause deliberative property on behalf of the stockholders of Darlington, because it would have denied them the privilege of exercising the liberty of disarming the corporation and taking it as their own property, for either sales or their net assets of the corporation.

    [Inaudible]

    Sam J. Ervin, Jr.:

    Well, the railroad is a public utility which is —

    [Inaudible]

    Sam J. Ervin, Jr.:

    Well, the difference in commerce is that the railroad is a public —

    [Inaudible]

    Sam J. Ervin, Jr.:

    Is a public utility, it gets exclusive privilege as in the [Inaudible] nape of monopoly.

    And it operates under a public franchise, that’s not true of about private employers and that’s the fundamental distrait distinction.

    [Inaudible]

    Sam J. Ervin, Jr.:

    Yes, it’s based upon the commerce clause plus the fact, that the railroad in Tennessee can merely a private profit for sale, is engaged in the performance of a duly affected with the public interest and for that reason, since it gets to public franchise in the nature of monopoly cannot withdraw as a private of business can.

    I think that’s the fundamental mistake.

    Now, I would like to say — just a few more words that there never has been a case in which there has been a more diligent effort on the part of the general counsel to make out of case.

    He took almost six years of time in order to propel this case and dig-up evidence.

    He produced thousands of pages of all testimony, and inspected thousands of documents belonging to some 20 different corporations.

    And when all of this evidence was produced, the trial examiner who did a most thorough job, made this correct finding.

    He said in effect that there was not a scintilla, I mean not a bit of evidence introduced in this case which was inconsistent with the complete independence of Darlington and that all the thing the evidence showed with respect to the relations of Darlington to other corporations was and it had the same normal relations to Deering Milliken, the sales agent, as ordinarily existed between a manufacturer and corporation and the sales agent, and that it merely had some limited cooperation of a voluntary nature with some of the other corporations in an effort to minimize the cost of tax service, the cost of tenants service as the industrial engineers, and lack of services essential to its existence of which it could not otherwise have obtained or obtained so cheaply.

    William J. Brennan, Jr.:

    Well, Senator may I ask you if this were a company with a number of plant, a single company with a number of plants, is your argument based on the legislative history go so far as to suggest that it would not be an unfair labor practice, with such a company to close down one plant to force all organization as other plants?

    Sam J. Ervin, Jr.:

    I think that you’ve come down to the question.

    The finding is that they closed down to keep them dealing with the Union that is the first thing.

    Now, the only one that was obligated to deal with the Union was the Darlington plant which had been designated as an appropriate bargaining unit and it was only one obligated to deal with the Union, the other plants that had no Union representation.

    Now that the courts upheld, that is the lower courts have handed down decisions which are cited in brief, that if an employer who has several plants, closes down the plants which is a self-sustained and economic unit in itself that he is not guilty of an unfair labor practice (Voice Overlap) in doing.

    William J. Brennan, Jr.:

    Do the cases hold that even though he closes it down to force all organization of other plants?

    Sam J. Ervin, Jr.:

    Yes.

    That’s we’ve cited cases in the brief as I interpret them now —

    Earl Warren:

    What case holds that —

    Sam J. Ervin, Jr.:

    Well, one of them is a rapid tran — Rapid Boundary Incorporated and in that case they had two plants, one in — one place in New York and another one they closed down the first and continued to operate the second, and held that it would not guilty — an unfair labor practice in the first plant.

    Then — this Court has only made one pronouncement on this subject, and it says in this case of the Southport Petroleum Company case, which was passed in the 315 United States of page 100.

    In that case, there had been labor controversy.

    And after the order of the National Labor Relations would refine reinstatement, and the case got into the Circuit Court, the employer attempted to raise, in court he said, he go and complete the out of business.

    He sold — he has claimed and going out of business after the order was entered to the National Labor Relations Board.

    The Circuit Court declined to order — uphold the evidence taken on that part and this Court held that that was alright of course the port could be erased down the compliance decision after the decision of this Court and in that opinion, Mr. Chief Justice Jackson said — stated — recognizes and uses.

    He says, “Well, there has been a modified discontinuance, at a true change of ownership which would terminate the duty of reinstatement created for the Board’s order or merely a disguise continuous to all employer does not clearly unfair,” and he said, “That matter can be passed on the compliance thing.”

    Now, I would like to make — these are — these closing observations.

    This is a practical matter.

    Practically every substantial business in United States has to guide its conduct by the provisions of the National Labor Relations Act.

    And they have to do this under the interpretation placed upon it by lawyers and by businessmen, practical men.

    And I think there’s something in the King James version of the Bible that has a direct reference to this matter, a practical — uses some practical wisdom.

    It said, “God judges not as man judges.

    Obey him, looketh upon the external appearance, but God looketh upon the heart.”

    Now, we have this kind of a situation under the case of this nature.

    Every economic factor indicates that the only successful thing for the business to do is to go out of existence.

    That’s what all the economic facts is, it’s all the external appearances are.

    As to thing that businessmen and the lawyers, they’ve had to guide themselves them out.

    Can it be said that instead of having an objective standard, we have to have a subjective standard and in any cases where every economic factor demands it as a matter of sound judgment, the termination of the business, that the case terminates the business because of – because of perhaps while the [Inaudible] to have a sound head and good exercise of the good intellectual judgment, they have a sort of bad part, is that the kind of things as a practical matter in this case.

    Now, it was said yesterday that Deering Milliken got into this matter by offering these people employment, but he couldn’t done it because it was six years after the Darlington went out of business before it was ever said that it was entered a duty on anybody to reinstate these employees.

    And then the order was made that Darlington would have to pay these employees until 16 other corporations, which are not parties to this case, either employ the Darlington’s former employees or put them out of the preferential list, all until the last [Inaudible] upon trembles and to ultimate silence.

    Sam J. Ervin, Jr.:

    And why is Darlington to suffer that penalty?

    Because it didn’t furnish employment to these people after its resolution and its liquidation back in 1956.

    Now, it couldn’t furnished the employment because this plant was so peace mean that it was dismantled and its machine was sold and 99% of this machine that was sold to a corporation [Inaudible] and had no connection with the Milliken, in any way and it’s not all it couldn’t have done so as a physical matter, but it couldn’t have done so as the matter of law, it had no legal capacity.

    Darlington was a South Carolina Corporation organized for the purpose of operation of a manufacturing plant to manufacture textbooks and the Act of the South Carolina Section 12-601 of the 1940 — 52 Code which was in existence provides that when a corporation is dissolved in any matter, its life is continued merely for the purpose of liquidating its affairs and litigating causes of action arising prior to its dissolution.

    And it says this, but it’s life — but it can do those things.

    But it does not continue to exist for the purpose of continuing the business for which they were established.

    So, it didn’t have the physical capacity, it didn’t have the legal capacity to do what is to be penalized for not doing.

    Earl Warren:

    Senator, may I ask this question on your speaking about matters of the heart.

    I notice in the brief of the Solicitor General on page 4, it says this.

    “At the start of the organizing campaign, Mill Treasure Olan promptly advised Roger Milliken of this activity by telephone.

    Thereafter, management engaged in a systematic and extensive effort to procure the Union’s rejection.

    On several occasions, threats were made by second-hands and overseers that the mill would be closed if the employees vote for union representation, just as of Milliken family had previously closed a plant in May” and then they cite about a dozen pages from the record to establish that, how do you handle that?

    Sam J. Ervin, Jr.:

    Well I’ll handle that this way.

    As a matter of fact, Roger Milliken had only one connection with this whole controversy prior to the election.

    It was handled entirely by the general manager of the Darlington whose name was Jim Olan.

    And the only connection of Roger Milliken had with it, was that — he instructed Darlington’s counsel, he was the president of Darlington.

    He instructed Darlington’s counsel to advise Olan during the campaign as to the law applicable to the situation.

    That’s his only connection until after the election has been carried.

    Now all that Roger Milliken did after that was to show that he was a diligent and a sincere person of Darlington.

    He recognized that if there was a substantial number of the employees that will oppose to the necessary — the increased use of labor, a more advanced and efficient use of labor in order to keep the mill in existence, that the mill could not possibly avail of the marginal nature of Darlington, could not possibly do it.

    Now, those statements that were made were in an editorial, not what the Milliken said, but in an editorial which pointed out that in the controversy concerning Darlington, that the Union had assured these people that if they elected the Union it could never — the Darlington could never go out of business and its management could not put into effect a program which was necessary for the economic survival of Darlington.

    And all he said in that connection was that he called us to the attention of the managers of the other mills which operated during Milliken as a selling agent, that they all — that they had full public relations in Darlington.

    And the inference is that if he fails that — it had good public relations, that the people of Darlington would have understood that the Union was trying to take over the management of the plant they have, and he — and that they’ve [Inaudible] – the liquidation would not have been necessary.

    The economic situation will not come about and all he suggested was, there should be good public relations for the communities in which they operated.

    That was instructions to the managers of plant and not to the Union.

    I won’t say that on this evidence that the decision of National Labor Relations Board has confirmed to evidence, is confirmed to the provisions of the Act and the interpretation based upon the Act by the National Labor Relations Board is inconsistent with the power of Congress under the commerce clause and repugnant to the due process clause of Fifth Amendment.

    I thank the Court’s for the patience in hearing accorded to this small town lawyer.

    Earl Warren:

    Mr. Updike.

    Stuart N. Updike:

    Mr. Chief Justice, may it please the Court.

    In the brief time that it remains for me, I would like to do three things.

    Stuart N. Updike:

    One, I would like to give the Court my views as to the problems which are placed before it on this record by these appeals.

    Second, I would like to raise a question of law that there is on the common ownership requirement in connection with the determination of whether or not a single employer is closed by the record.

    And lastly, I would like to answer if I may, some of the questions according to my views of these facts, some of the questions that were posed both yesterday and today by the Court.

    And specifically and while it is fresh in my mind, I would like to answer the question to Mr. Chief Justice Brennan in that, I know of no case, where there was directly involved a motivation to close down the plant (a) in order to avoid or prevent or restraint the organization at another plant and.

    William J. Brennan, Jr.:

    [Inaudible] cases that Senator referred to the Rapid Boundary and that doesn’t seem to have going to factor in that case, doesn’t it?

    Stuart N. Updike:

    It does not, no sir.

    As a matter of fact, both the Board itself and the court below stated and I think it is the fact that there is no case precisely like this one, but I would urge upon the Court in view of the questions that were asked yesterday to bear with me while I bring to the Court’s attention that we have made a careful search of this record and I think I’m the only lawyer, not the only one in the courtroom, but the only one who has addressed the Court, who had anything to do with this case in the course of its trial.

    And I assure the Court that our search of this record has shown no finding requested and no finding made either by the trial examiner or by the Board itself with respect to any purpose or motivation with respect to the closing of Darlington, as regards any other plant of the respondent Deering Milliken viewing it for the moment —

    William J. Brennan, Jr.:

    Well Mr. Updike —

    Stuart N. Updike:

    — as a single employer, which of course I do not concede.

    William J. Brennan, Jr.:

    Was that the exhibit to which we referred yesterday or call the notice of the magazine article in that?

    Stuart N. Updike:

    Yes sir.

    William J. Brennan, Jr.:

    Who put that in, the Board —

    Stuart N. Updike:

    Practically, all of these exhibits were put in by the Board.

    What the Board did in conjunction with ourselves was to review the corporate history of Darlington and of Deering Milliken and statement of a so-called service corporation and the so-called research corporation reviewed the entire file history of those companies for a period of two years antecedent to the Darlington closing.

    And practically, all of these exhibits were selected out by the Board and were placed in evidence.

    William J. Brennan, Jr.:

    But that particular circulation to the treasurer, is that —

    Stuart N. Updike:

    Yes sir.

    William J. Brennan, Jr.:

    — of the other plants that followed after the closing of the —

    Stuart N. Updike:

    Yes, it followed after the closing and Milliken’s only reference to it was that he thought that this would be interesting to them in considering their relations with their communities and of sympathetic understanding of the problems that they had.

    And so long, according to my understanding of the law, so long as the employer restricts communications such as this to supervise every personnel and in this instance, as I believe this record clearly shows, in fact, there was finding by the trial examiner unreversed by the Board, in this industry, the treasurers of these companies are in the unique position under their Bylaws of being the chief executive officers answerable only to the Boards of Directors, that’s precisely what the Bylaws of Darlington showed.

    And so when the Board refers in these briefs to Milliken being the president of this and the president of that, this record shows that the relationship of the president in the textile business is that roughly corresponding to the Chairman of the Board.

    He is a senior executive who presides at meetings of shareholders, with the actual running of the business and the decisional responsibilities with respect to the business on this record, held by the client examiner and unreversed by the Board, is in the hands of the treasurer and it’s his responsibility —

    William J. Brennan, Jr.:

    [Voice Overlap] whether it was a board of the Union at the any time when these proceedings below, relied upon that circulation as proof that the closing of Darlington was for the purpose of forestalling organization of the other plants?

    Stuart N. Updike:

    On the contrary, they used it to show a general anti-union bias on the part of Milliken.

    Milliken was on the stand in this case for about five days under examination, both on the first hearings where it went to the violation at Darlington itself, and on the subsequent hearings which went to the single employee status problem.

    And in the course of that, that was introduced and used exclusively to show bias in respect of Milliken’s motivation with regard to the closing of Darlington, who had Darlington as an independent unit.

    Byron R. White:

    But at least it’s very clear that no findings whatsoever by any court or agency or examiner in regard to motivation with regard to other plants?

    Stuart N. Updike:

    That is correct sir.

    There was no finding either by the trial examiner or by the Board.

    Stuart N. Updike:

    Now if the Court please, it is my view that the primary problem before this Court is what it deals, how it deals with the decision of the court below.

    Now the Board here decided first, there was a violation at Darlington when Darlington went out of business.

    That was an affirmation of the holding of the trial examination — the trial examiner.

    The Board reversely examined, however, with regard to the so-called single employer issue and held that there was a single employer presented here.

    The Court of Appeals, and incidentally those — the decision by the Board was treated too with the two dissents as to the issue of single employer, and one dissent as to the issue of violation.

    At the court below, we have the court below holding that Darlington viewed as an independent unit had an absolute right to go out of business, and that’s holding number 1.

    And then without deciding anything with respect to the fact on the single employer issue, the court below accepting the findings of the Board arguendo only, went on to hold that even in those circumstances so long as the going out of business was complete, unsigned, permanent, it was on the same parity or on a parity with the same problem as presented by Darlington viewing it as a separate unit on its own.

    Now, it seems to me that this Court has faced before the issue with respect to Darlington.

    What does it do?

    Does Darlington have the right to go out of business for any reason on this record, without violating this Act?

    And it seems to me that although the Board has urged this Court that it may disregard that issue that it may not disregard it and it should face up to that as the primary issue here.

    Now, Mr. Manoli and Mr. Abramson have both asked this Court to proceed to the decision of the single employer issue before it, because I think it was Mr. Manoli who said it was fully briefed or I state to the Court with respect that it has not been fully briefed.

    In the first place, in spite of Manoli’s assurance, when the — when Solicitor General Cox put in the petition for certiorari here, he stated to this Court and to his adversaries as well, in the footnote on page 10, “Since the Court, meaning the Court of Appeals, did not consider whether the finding was sustained on substantial evidence, the issue would appear to be open on remand.”

    The second reason why we have not done it is because we have understood the rule of this Court to be starting with the Universal Camera, and ending with the United States or NLRB against Walton in 1960, this Court reviews the primary job that revealing evidentiary determinations by the Board to be the job of the Courts of Appeal and not of this Court.

    And so, in preparing all the briefs on behalf of Deering Milliken for this Court, our only treatment of the issue of single employer is the treatment of an issue of law, and that issue of law is precisely this.

    The Board stated in classic terms and terms with which we do not disagree, that the tests for single employer are common ownership, common control of operations, common control of the crucial area of labor relations in such a way that a common enterprise, whatever that phrase means it’s produced.

    In oral argument to this Court, we have taken the first element, the element of common ownership because there the record is not complicated.

    It’s based on a stipulation that appears in the record with regard to the share ownership by the Milliken family, the members of the Milliken family and where they own the shares.

    And we make a contention as a matter of law, that if common ownership is an ingredient in the totality of a single employer status, then no case has ever held that any common ownership posture such as we find on these facts has ever been held to result in a single employer states.

    We have not argued the very — we have not argued the very complicated facts on this record with respect to the risk of the single employer problem.

    The court below — in the court below, the Board’s brief alone was 96 pages devoted to an analysis and presentation of the evidence on this single employer question.

    It’s a long record.

    It’s replete with many, many exhibits.

    Some of the exhibits running 50, 80 pages in length and we submit that on this record, it would be going against this Court’s own precedents, not to send this back if the Court disagrees with the court below on the issues presented as I have outlined them a moment ago.

    Now, I would like if I may, to turn to certain questions that were asked by the Court yesterday.

    They were (Inaudible) proof of them, dealing with whether there was any evidence of any kind that business had been shifted from Darlington to any other plan connected with Deering Milliken Company or selling products through Deering Milliken Company.

    And Mr. Manoli stated that he thought that there was some of what this record shows that in each instance, the only contracts that ever went to Deering Milliken and Company for — or to a company connected with it, were first offered in the open market competitively, see if any other company would do it, and in the very few instances in which it did occur, sometimes Darlington paid a premium in order to get someone else to produce the particular goods in order to satisfy the claims of customers.

    In other instances, Darlington itself paid the premium to the customer in order that the customer would in effect cancel out on the contract obligation at that time.

    That is the record with regard to it and the trial examiner spent some 12 pages of findings in this record with respect to that.

    And its conclusion was, that there was no substantial evidence that any part of Dalington’s business found its way into the mills of Deering Milliken and Company.

    Stuart N. Updike:

    Now in other words, when the court below said that this is not a runaway plant and they’re — that we are confronted here with a situation that a complete and permanent, I believe the Court was correct and on the records before this Court, what this Court should do is affirm the court below on the ground that when an employer ceases to be an employer and takes himself out of the coverage of the Act like taking himself out of the commerce covered by the Act, that that should be an end to it and that the penalty involved in going out of business should be regarded as to sanction.

    That same sanction should apply even when there are several plants involved so long as those plants are separate, self-sustaining economic units with a profit objective, because by going into bankruptcy or going out of business, the penalty on the employer is so great that it is not surprising that this is the first case in 20 years under the Wagner Act to produce this problem, I believe.

    In other way, it’s from the time the Wagner Act came into existence until 1956, this was the first instance in which an employer had taken this step with respect to a problem arising under the National Labor Relations Act and posed issue of illegality under that Act.

    So, I would ask if the Court agrees that it affirm the court below, but if it does not and cannot affirm the court below, and if it finds we are wrong in this contention, then I submit that the complicated problems of the single employer status should be remanded to the Court of Appeals as suggested in the petitioner’s brief, bringing the case on certiorari here, on behalf of the Board and as urged in our own brief.

    Thank you —

    Mr. Updike —

    Stuart N. Updike:

    Yes sir?

    – was the product made by Darlington, different product made in the other plants?

    Stuart N. Updike:

    Yes sir.

    Basically, it is — may I have 30 seconds, I think I can explain.

    There is a spectrum, the term print ports, there were some five so-called print ports [Inaudible] but there is a spectrum of products all the way from sheer thin stuff like muslin on the one hand, all the way down to materials such as Dungarees that children wear.

    The size of the threads are different, the size sometimes of the — it’s in the cross threads, there were thousands of constructions that are involved.

    And they shift over from one to another, may take much. So that — in that neck Darlington, as the record shows, was in what was called the fancies business, the other mills were not in the fancies business.

    Fancies means that they have a circus effect like the ripple that the Senator spoke about yesterday in a [Inaudible]

    Could the other plants have taken over the Darlington right out [Voice Overlap]

    Stuart N. Updike:

    Some of them undoubtedly had machinery sufficiently versatile, that after a period of time they could have.

    But the evidence is clear that all of these mills were running six days a week, 24 hours a day, so that something has to go off the looms if you would like to take Darlington’s business or any other business and put it on the other looms.

    And in this situation, it would have taken a long one to affect any kind of a shift-over even though — perhaps the line was profitable, but these are not interchangeable constructions on this record.

    In other words, they’re not the same.

    You can’t just go from one to another and accept them as being the same —

    [Inaudible]

    Stuart N. Updike:

    What is that sir?

    Earl Warren:

    [Inaudible] in some instances take over the contracts, did they not (Voice Overlap).

    Stuart N. Updike:

    There was few instances that I mentioned in speaking to Mr. Justice Brennan in answer to his question, yes sir.

    Earl Warren:

    Yes.

    Stuart N. Updike:

    Thank you sir.

    Sam J. Ervin, Jr.:

    Mr. Chief Justice —

    Earl Warren:

    Mr. Abramson.

    Irving Abramson:

    — if it please the Court.

    I will prevail on the Court to utilize the two minutes that I have to pick up the discussion which just left off and in that connection, I direct the Court’s attention if it pleases to Volume 6 in the transcript of record page 1916, wherein the Court of Appeals amended its original decision.

    Irving Abramson:

    In the original opinion of the court below, the Court said that the manufacturing done at Darlington was not transferred to the other mills when Darlington was shut down.

    Thus in the original form, the decision below in part read “It is noteworthy that Darlington was the only Milliken-related plant manufacturing clean-cloth and since its liquidation, none of the remaining mills has undertaken the manufacture of that kind of product.”

    That was deleted in the final decision of the Court of Appeals obviously because that’s an incorrect finding.

    Hugo L. Black:

    What page did you say?

    Irving Abramson:

    Page 1916, Mr. Justice Black of Volume 6 of the transcript of the record, reflects this deletion of the original opinion.

    Furthermore, Deering Milliken mills began to make cloth of two types theretofore made only by Darlington.

    The rest of the Milliken mills never made this type of cloth, only Darlington made it.

    But after Darlington mills were shut down, that work then was taken up by Deering Milliken.

    And one other point which reflects an interest by Mr. Justice Brennan and Mr. Justice White with the respect to the findings by this Board and I direct Your Honors’ attention to page 25 of the findings of the Board wherein it says, “Roger Milliken’s participation is in the area having the greatest impact on labor relations in the area of collective bargaining.”

    Then the Board says, “Thus, he circulated a memorandum and editorial which was obviously intended as a primer to the managers of the mills in combating union organization.

    Thus, the organizational campaign — during the organizational campaign, his pervasive influence was demonstrated by the statements of supervisory employees that Roger Milliken would close the plant rather than permit its unionization.”

    William J. Brennan, Jr.:

    Mr. Abramson, do you need that as the fact saying that Darlington was closed down, for among other reasons to forestall organizations at the other Deering Milliken plant?

    Irving Abramson:

    I do so, very definitely — and I tie in this transcript that we’ve read.

    William J. Brennan, Jr.:

    I think they might have been said more explicitly, if that’s what the finding intends, would it not?

    Irving Abramson:

    It is true that the Board could have said a lot of things perhaps more explicitly, but the primer refers to on its face, is headed.

    The object lesson of the closing to the Darlington mills and that object lesson was sent to the heads of each of the other Darlington mills, it couldn’t be any plain of message.

    William J. Brennan, Jr.:

    I think you told me yesterday that while the evidence showed that that went to the heads of the other mills, and there’s no evidence in this record at least that in fact that circulation was brought to the attention of any employees of the other mills.

    Irving Abramson:

    That’s an accurate statement, yes.

    We’d merely presume that the purpose of the communication that has thoroughly stated in the memorandum of Roger Milliken, this is interesting, you ought to know about it and give it to the community.

    And we assume therefore that if the managers of the mills followed Roger Milliken’s instructions, they would have given it to the community which includes the work that was done in Deering Milliken plants.

    [Inaudible]

    Irving Abramson:

    I think this is a critical question Mr. Justice Harlan please.

    In that — and I would suggest the answer to that is this. Like many other violations of the law, the sole and exclusive criteria is motivation.

    An employer may give a wage increase to an employee and not violate the law.

    But if that wage increase is given to the employee for discriminatory purposes, he violates the law.

    An employer may discharge an employee without violating the law, but if the purpose is — is a discriminatory discharge, he’s in violation of Section 883.

    And therefore, I — maybe I’m getting around the circle, but getting therefore to your Honor’s question, if the motivation of closing down the plant is for the purpose of committing a violation of the law namely to frustrate the purposes of collective bargaining, then the Fifth — central trust of the closing down is to violate the law and therefore it becomes unlawful.

    [Inaudible]

    Irving Abramson:

    Well, this — I hope I’m not presumptuous in suggesting that it’s elemental.

    The trial examiner found very conclusively that if an employer is permitted to close down the plant, it undercuts the underlying principles of the right of collective bargaining.

    Irving Abramson:

    There isn’t a single officer, be it administrative or judicial of the many people that handled this case that if it is agreed with the proposition that the finding that this plant was closed down for illegal purposes was not supported by substantial evidence, not a single officer, judicial or administrative.

    And the cases a clear, they are legion to suggest that the — if you have a illegal purpose in shutting down, it becomes a violation of the law.

    We cite a dozen cases in our briefs to that effect.

    Thank you, Your Honor.