LABOR BD. v. WASHINGTON ALUMINUM CO.

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Argument of Dominick L. Manoli

Chief Justice Earl Warren: Number 464, NLRB, Petitioner, versus Washington Aluminum Company.

Mr. Manoli.

Mr. Dominick L. Manoli: May it please the Court.

This case is here on writ of certiorari to the Fourth Circuit.

The Labor Board found in this case that the respondent company violated the National Labor Relations Act by discharging seven employees who had concertedly walked out of the plant in protest against inadequate heating of the machine shop in which they were employed.

The Board's order requires the respondent company to offer reinstatement of these employees with back pay.

The court below set aside the Board's order.

It concluded that the walkout, the concerted walkout was not concerted activity within the protection of the statute and that therefore, the discharge does not violate of the Act because the employees, prior to the walkout, had failed to make a demand upon the employer to correct the objectionable conditions.

The question presented is whether in the circumstances of this case, there is award in the statute for the interposition of such a condition precedent to the employees' exercise of their right to engage in concerted activity for mutual aid or protection.

I shall briefly summarize the basic facts which give rise to this controversy.

The respondent company operates a plant in Baltimore, Maryland where it is engaged in the fabrication of aluminum products.

And in connection with this plant, it operates a machine shop.

The day shift on the machine -- on the machine shop consists of a foreman and eight employees.

And at the time of the events that gave rise to this controversy, these employees were not represented by a union nor was there in effect any collective bargaining agreement which provided for machinery for the handling of grievances.

The shop is approximately 40 x 75 feet.

It is not insulated.

It has a number of doors which open to the outside and during working time, these doors are open by frequently.

The shop is principally heated -- principally heated by large gas furnace and to -- by a large oil furnace rather, by large oil furnace and two much smaller gas furnaces.

Sometime prior to the walkout here in question, the employees complained about the coldness of the shop in the winter time.

On January 5th, 1959, a Monday morning, the employees of the machine shop reported at the plant some time between 7 and 7:30.

That particular morning was extremely cold and for Baltimore, an abnormally cold day, cold morning.

An anticipation of the heat, the night watchmen had been at the plant at 1 o'clock that morning -- 1 o'clock Monday morning, and again at 5 o'clock that morning and had sought to start the furnaces, but he was unable to start the large furnace, and the large furnace is the one that is the source of -- the primary source of heat for the machine shop.

When the employees reported at work, as I say between 7 and 7:30, they found the shop extremely cold.

And one of the employees, Caron, went into the foreman Jarvis' office in order to get warmed but found that his office was just as cold as the rest of the shop.

While he and foreman Jarvis were discussing the cold in the shop, foreman Jarvis saw a couple of employees, as the record puts it, all huddled up near the doorway, and Jarvis remarked to Caron, "If those fellow had any guts, they would go home."

Caron reported this statement to his fellow employees and they discussed it among themselves, and they decided to go home.

There's one employee who testified and answered the question, "Why did you leave the plant on Monday morning with these other men?"

I'm reading it -- at the bottom of page 43 of the record.

His answer was, "Well, they said it was extremely cold, and we had all got together and thought it would be a good idea to go home.

Maybe we could get some heat brought into the plant that way."

Now, seven of the eight employees, as I say, had decided to go home, and as they were leaving, Jarvis and perhaps one or two of the employees, or rather Caron.

As they were leaving, Caron, one of the employees remarked to foreman Jarvis that they were going home, they were leaving, it was too cold.

They walked out at approximately the time that the 7:30 whistle which blew the -- which marked the -- the start of working day, the time that whistle blew.

Only one of the eight employees decided to remain and apparently the record suggest that he was an alien and feared that because he was an alien, he might have difficulty obtaining other employment.

Meanwhile -- meanwhile, the company's electrician had fixed the furnace, probably some switch there hadn't been put on.

He fixed the furnace and within a few minutes after 7:30, the furnace was operating but the temperature in this machine shop did not reach normal until nearly noon at that day.

About an hour later after the men had walked out of the plant, the company's president appeared at the plant.

And when he discovered what had happened, he ordered the seven men to be discharged because he said, "They had left without permission."

Notice was given to the very -- to the seven men, either by telephone or by telegram, that particular day that they were discharged.

In a very short time of the decision to discharge them, one of the employees came back and apparently indicated that he was prepared to go back to work but the company said, "No, that they won't take him back."

And on the next day or two, one or two other employees also indicated the desire to return to work but again the company refused to reconsider its decision.

Justice Potter Stewart: Mr. Manoli, the discharges were the same day, did you say?

Mr. Dominick L. Manoli: Yes sir.

Justice Potter Stewart: Same day as the walkout.

Mr. Dominick L. Manoli: Yes, the same day.

That's right and all of the parties were notified on the day of the walkout.

That's correct.

Now, as I said, the court below disagreeing with the Board concluded that this walkout, this concerted stoppage of work by these employees was not concerted activity within the protection of the statute because these employees had failed prior to the walkout to make a demand upon the employer to correct the objectionable conditions.

The court below did not set aside the Board's additional findings that these people had complained about the coldness of the shop in the winter time sometime before the walkout.

But it is kind of these complaints on the ground that these complaints had not been coupled with a specific demand that the employer do something about it.

Now, in our judgment and the Board's judgment, we believe that neither the basic -- neither the specific provisions of the statute nor its basic policies warrant the imposition in the circumstances of this case of such a condition present to the employer's exercise of their Section 7 rights, namely, the right to engage in concerted activities for mutual aid and protection.

Now, the starting point of our analysis, I think is Section 7 of the Act and Section 8 (a) (1).

Section 7 of the Act provides that the employer shall have the right to engage in collective bar -- to engage in concerted activities for purposes of collective bargaining or other mutual aid or protection.

Section 8 (a) (1) makes an unfair labor practice for an employer to interfere with, coerce or restrain employees in the exercise of their Section 7 right.

Now, I think there can be very little question that the walkout in this case certainly satisfies the literal language of Section 7.

It was the concerted action of seven employees.

It wasn't protest against objectionable working conditions and hence for their mutual aid or protection.

And I venture to say -- I venture to say that the walkout here is the most elementary form of concerted activity for mutual aid and protection and that the walkout here represents nothing more than a simple exercise of the employee's right to engage in a concerted stoppage of work for the purpose of objecting to a -- to conditions of work that they don't want or like.

And it would seem to follow --

Justice Potter Stewart: Was there a collective bargaining agreement --

Mr. Dominick L. Manoli: No sir.

Justice Potter Stewart: -- in effect covering these employees.

Mr. Dominick L. Manoli: No sir, there was not.

They were not represented either by union and there was no collective bargaining agreement in effect.

It would seem to follow that the employer's discharge in this case is the plaintiff sort of interference and restraint of employees in the exercise of Section 7 rights.

Now, I am aware, I'm aware if the Court please that the courts, both the Board and the courts have held that not all conduct, not all the employees self-helped which falls within the literal scope of Section 7, necessarily enjoys its protection.

Both the Board and the courts have held at that Section and that be read literally so as to minimize all conduct which falls within its literal scope without regard either that means or the opposite.

Both the Board and the courts including this one, have held that concerted activity may lose the protection of the statute where either -- either where its object is in contravention of a specific provision of the statute, our statute, or its basic policy, or the provisions of some related federal statute or -- or whether means used, even though for a lawful act are so egregiously incompatible with the recognized standards of conduct in employer-employee relationships as to be deemed indefensible.

Now, I submit Your Honors that this case does not fall within any of those categories.

The court below sought to anchor its decision in this case here upon the policy of the statute which fosters the peaceful resolution of industrial disputes through collective bargaining and through negotiation.

And the court felt here that the failure of the employees to go through the formality of making a prior demand upon the employer before they walked out was in derogation of this policy.

Now, of course it's true that if employers make a prior demand upon the employer to correct objection of the conditions, it may be conducive to the peaceful resolution of that dispute.

But to say as the court below apparently thought, to say that there's an inconsistency between strike action, concerted work stoppages and the statutory policy of fostering the peaceful resolution of industrial disputes by negotiation and for -- because the employers have not gone through the formality of making a prior demand, I submit that Your Honor, that to say that, to say that there's an inconsistency between the two is to misconceive, is to misconceive the place of strike action and work stoppages in the statutory scheme.

As this Court said in the Insurance Agent's case, the right to engage in work stoppages for mutual aid or protection, the right to engage into strikes was not a grudging exception to the statutory policy of fostering the peaceful resolution of industrial disputes.

It was part impartial of it as indicated by Section 7, by Section 8 (a) (1) and Section 8 -- and Section 13 of the statute which in some brought in to protect the right of the employers to engage in concerted activities, and immunize the right to strike except as specifically provided otherwise in the statute.

Congress has seen no inconsistency between work stoppage or strike action and the policy of the statute of the peaceful resolution of disputes, just because the employers had not made a prior demand and there is no provision.

Justice William J. Brennan: Mr. Manoli, may I ask --

Mr. Dominick L. Manoli: Yes sir.

Justice William J. Brennan: May I ask you, is there anything about the Universal Camera, the principle there would justify the Court of Appeals'?

Mr. Dominick L. Manoli: Well, I don't think we have a fact issue in here Your Honor.

Justice William J. Brennan: You think it is not (Voice Overlap) --

Mr. Dominick L. Manoli: I think substantially basic facts are undisputed.

I do think that we make it into a question about where the Board has made an accommodation between competing interests within the framework of the statute on how much --

Justice William J. Brennan: I know but you don't -- there's no reference to Universal Camera or its principles in either brief.

Mr. Dominick L. Manoli: I don't -- we don't believe that Universal Camera is involved in this case.

Now, there's no provision in the statute which requires the employees to make a demand upon the employer before they engage in a strike or on a walkout for mutual aid or protection.

The only exception to this is Section 8 (d) of the statute.

And Section 8 (d) provides for what has been called the cooling-off period, but this provision applies only where there is in effect a collective bargaining agreement and the price have given notice to terminate or modify it.

Well, that is the situation and that is not the situation here of course, then the parties, the employment may not lock up.

Now, the employers may go out on strike without having given certain notices and engage and had -- and have to have this cooling-off period.

I say we have nothing like that here.

Now, it may well be -- it may well be, there will be that spontaneous work stoppage such as in this case, may be the most effective method that the employers have at hand for compelling the employer to alleviate objectionable working conditions.

And again, as this Court noted in the Insurance Agents, the fact that peaceful self-help by employees maximizes the pressure upon the employer to do something about it, about the conditions that they are objecting to does not necessarily make those self -- does not make those self-help activities run it counter to the statutory policy of collective bargaining or a fostering the peaceful resolution of industrial disputes by negotiation.

Now, there may be situations -- there may be situations where the broad Section 7 rights may have to be accommodated to some legitimate employer interest.

For example, both the Board and the courts have held that where you have a spontaneous workout -- a spontaneous walkout which may create a hazardous condition of the plant or may endanger its safety that the employees may lose the protection of the statute under those circumstances.

Or you may have a situation like the Third Circuit had in Condenser, a number of years ago.

Number of years ago where the employer had promised the employees that he would hear them -- hear their grievance at the end of the working day and they acquiesce in this but subsequently then just walked out of the place.

Here, the Court of Appeals for the Third Circuit said, "Well, they had given an implied promise that they would wait until they had -- or would hear them as he had promised to do it."

But we have nothing like that in this case.

There was no collective bargaining agreement to this case.

There was no promise to hear these people, there was no union involved in the case.

The employees had made -- they hadn't be -- made complaints, they hadn't made complaints about the coldness of the plant some time prior to the particular walkout here while the court below discounted these complaints on the -- on the ground that they were not coupled with specific demand that the employer do something about it.

I suggest that that view is rather hyper technical.

When the employers appeared at the plant on this morning, the condition there were intolerable and was the most natural thing on the -- on earth for them just think that work was out of the question and for them to go home.

Now, the employer, at all times, knew why the employees had walked out.

He'd knew why they had walked out, when he discharged them.

It knew what it had to do in order to bring them back.

It could've notified them that the furnace was in operation and that the plant would be heated -- would be -- would be heated up, normal temperatures by noon, but instead, what did it do?

It summarily fired them.

Now, we are told -- we are told that the walkout here interrupted critical production of this -- all that we're -- the evidence, the right of testimony in the record is that there was some one item that was supposed to go out, it's an unspecified item.

The testimony is it was supposed to go out that day, and the other thing was that two people were taken from some other jobs and put in the machine shop.

Now, I venture to suggest Your Honors, that whatever disruption there was here for production at best, at best was no more than what it would be incidental of any strike or work stoppage.

Now, weighing these factors -- weighing these factors, the Board concluded -- the Board concluded that the failure of the employer, the omission of the employees to make it -- close with the formality of making a prior demand upon the employer to correct the objection or conditions was insufficient.

It was insufficient in the circumstance of this case to award a forfeiture of the right to which otherwise entitle to under the statute.

This Court has said that where an accommodation must be made, must be made between competing interest within the statutory framework but the primary responsibility for making these accommodations is -- lies with the Board, and that the court should respect that kind of an accommodation unless it's unreasonable.

We think that the court below lost sight of this principle when it upset the Board's judgment of this case.

Basically, it seems to me, the court below has made its decision with respect to the legality of the walkout here, turn upon its notion that there was something unfair about it.

Something unfair about it because the failure of the furnace to work, the mechanical failure of -- of furnace to work was of something of opportunity and that the furnace was in operation within a few minutes after the employees had walked out.

But both the Board and the courts I think properly so had been weary.

They've been weary of conditioning the exercise of Section 7 rights upon their individual notions as to what is wise or fair or proper.

Indeed, as long it goes 1938, this Court said in the Mackay case that the wisdom or unwisdom, the justification or the lack of justification of the employees may have in engaging in concerted activity is normally irrelevant to the question of illegality of that activity.

And to hold otherwise, to hold otherwise would present the very serious danger of resurrecting the discredited common law of conspiracy doctrine under which such is decided whether act -- concerted action by employees was legal or not legal under basis -- their own individual views as to what was fair, desirable or wise.

This philosophy, we believe runs counter to the philosophy of the federal labor policy as reflected not only in the Norris-LaGuardia statute but in our statute as well.

Of course, the court below -- the court below was not so unmindful of history as to phrase this decision in terms of fairness or wisdom, but we think that that was the inevitable and we submit that it was wrong.

It was wrong for it to have overruled the Board's judgment in this case.

Chief Justice Earl Warren: Mr. Bair.

Argument of Robert R. Bair

Mr. Robert R. Bair: Mr. Chief Justice, may it please the Court.

The unique feature of this case is that there is no current labor dispute involved.

There was no preexisting working condition which had been brought to the attention of management of this company which had been made the subject of a labor controversy.

And as a matter of fact, the Board itself made no specific finding that there -- that there was a current labor dispute in this case.

They merely adverted to what they called prior complaints about the cold.

What were these prior complaints?

There were on -- there were seven employees who were discharged.

Only three of these employees testified on the subject of prior working conditions, and these three did not use the word complaint.

The general counsel asked them whether they had made any complaints before this walkout about working condition.

Caron, the leader, said he used to talk to the foreman.

He talked to the foreman about the cold.

The second man, Heinlein, said he remarked about the cold on prior occasions.

He remarked, as a matter of fact, when I -- when I on cross-examination asked him about these remarks, he said he spoke several times during the past six months, maybe a year, maybe two years ago whereas, only two months prior, in November of 1958, the respondent installed a 500,000 BTU furnace in a shop, an additional furnace, not a replacement but an additional furnace in a shop, the heat from which flowed in to this machine shop.

Now, it seems to me that this completely knocks out any value that the Heinlein testimony had.

Now, the third witness is a man named George, and George was asked about prior complaints.

But did he respond by saying complaint?

He said no.

No.

He asked the foreman several times why the furnace would not put out more heat.

Now, this is the sum total of the evidence in this case about a current labor dispute.

There was no -- there was no concerted action taken.

These -- these so-called remarks asks about -- asking about the cold, used to talk about the cold were topics of conversation such as you have in every plant with the doors opening and shutting, bringing business in and out.

It was -- they were topics of conversation just as they were topics of conversation during the summer when the men were breaking about the heat.

Now, to raise this evidence into a current labor dispute, with which Congress was concerned, with which -- which leads to strikes, which obstruct commerce, which gives this Court and the Board the very source of jurisdictional power to govern actions which are involved here, to raise this evidence into a current labor dispute is absurd.

There was -- there was not -- there was no concerted action whatever.

There were -- there was no labor organization involved in this case whatever.

There was no organizational activity involved in this case whatever.

There were seven men, working in a machine shop, it was a cold day, 15 degrees, 18 degrees below the normal for that day, the winds were howling from 23 to 43 miles an hour.

The furnace -- the main furnace, 1,500,000 BTU furnace was not operating.

The watchman didn't know how to start it for some strange reason, but it was not operating.

It was started just as soon as the company electrician arrived at the plant at 7:15 in the morning.

These men were huddled outside of the foreman's shop.

The leader told the men what the foreman had said to him.

If they had any guts, they'd go home, and so they went home.

They went home because it was cold.

We do not deny that.

They went home because of what Caron told them that Jarvis said about them, if they had any guts, they'd go home.

These were the two reasons the men went home.

The men did not go home because there was a current labor dispute, because this was a protest against the cold.

The men went home because it was cold.

Now, why is the existence of a current labor dispute so important?

As I said previously, the labor dispute is the very source from which this Court and from which the Board and from which Congress attains jurisdiction to act in matters of this kind. Section 1 of the Wagner Act is very explicit on the subject.

Section 2 (3) defining employee and Section 2 (9) defining labor dispute expressly recognizes the need for a current labor dispute.

Section 2 (3) preserves an employee's status under the Act.

It recognizes that if an employee ceases work as a result of unfair labor practice, he remains an employee under the Act.

Section 2 (3) states further that where there is economic strike involved, not an unfair labor practice but the employer, where an employee ceases work in consequence of or in connection with a current labor dispute, he remains an employee under the Act.

Therefore, I say that in this case unless there is current labor dispute, the statute does not recognize these employees as retaining their employee status.

The Mackay case referred to by Mr. Manoli holds just this.

There was a question before this Court in that case as to whether there was a current labor dispute.

This Court found that there was.

There were negotiations, collective bargaining negotiations leading towards the hope of a contract governing wages, hours and working conditions.

There is no such thing here.

This Court's decision in the Labor Board against the Electrical Workers likewise recognizes the importance of the concerted activity occurring in the context of a current labor dispute.

Now, not only does Section 2 (3) of the Act recognize the importance of a current labor dispute.

Section 10 (c) which gives the Board the power to reinstate employees to effectuate the policies of the Act refers to employee to obtain a definition of employees.

We go back to Section 2 (3) where again we arrived at the requirements of a current labor dispute before employees quitting work, retain their employee status under the Act.

Now, we submit that the Board should have made a finding as to whether or not the evidence consisted of -- constituted a current labor dispute.

They passed over this jurisdictional prerequisite I believe because of their belief that the punishment was disproportionate to the offense.

They thought the discipline was too severe.

But it is submitted that the harshness or the mildness of discipline is not a matter for the Board to determine.

Management is much better qualified at least in this one phase of Labor Relations to decide what is best to maintain order and discipline in a particular plant governed by peculiar conditions of the business in this particular plant.

It is not for the Board to decide whether discipline is harsh or severe.

And we believe that in this case, the Board was in actuality substituting its judgment for that of management in the question of the severity of punishment.

Turning now to the question, assuming arguendo that the facts in this case can support a finding of a current labor dispute, where are we then?

Assuming that the testimony of these three men asking about the cold, remarking about the cold, talking about the cold can be ballooned into a labor dispute, where are we?

The employee -- the employer discharged these men for a cause.

The cause was that the men left the plant without notice to the foreman, without discussing the matter with the foreman, without requesting anything of the foreman, without investigating whether or not the furnace was running, without asking for a conference, without making an ultimatum.

They did not inform anybody of the action they were taking of the objects they sought of the purposes they thought that they were going to achieve.

The true motives of the employer in this case and there's no evidence that contradict this or simply to punish the men for infraction of the plant rule, namely leaving the plant without permission.

Justice John M. Harlan: What -- what significance if any do you attribute to the foreman's remark --

Mr. Robert R. Bair: Your Honor --

Justice John M. Harlan: -- if those fellows had any guts, they would go home?

Mr. Robert R. Bair: I think the significance there is that it presented to the men a challenge or a dare or an encouragement, and that the men may very well have left because of that and but for that, they might not have left.

Now if that is so, that indicates to me all the more clearly that the men did not leave to protest a preexisting working condition.

Justice John M. Harlan: Do you think it could be interpreted reasonably as indicating that if they wanted something done about this and then -- for them to do is to go home?

Mr. Robert R. Bair: No Your Honor I do not.

I think the evidence will show Your Honor that Caron and Jarvis, the leader and the foreman frequently talked together in a jocular fashion.

They frequently kidded one another about activities in and about the plant.

This was not a serious conversation that took place in the foreman's office.

I think the record will bear that out Your Honor.

Now, the Board did not try to explain to discredit or give any reasons for disregarding the employer's evidence of the reasons or the motives behind the discharges.

I don't know why.

I think it is incumbent upon the Board in discharge cases to give some reason for disregarding the evidence of the respondent.

The House Conference Report, Number 510 of the 88th Congress points this out very clearly at page 56.

And then Section 10 (c) as enacted by the Taft-Hartley Act completely deprives the Board of power to reinstate employees discharged for cause.

That is the language of Section 10 (c).

The Board shall not have power to reinstate employees who are suspended or discharged for cause.

So on page 75 of the appendix A to the respondent's brief, the last paragraph of Section 10 (c).

Now, it maybe asked what happens when you have a conflict between 10 (c) giving the employer the power to discharge for cause and Section 7, giving the employees right to take concerted action for their mutual aid and protection.

I have no difficulty reconciling the two Sections.

It seems to me that Section 7 contemplates something that has to do with an employer unfair labor practice, which is not involved here a prior preexisting unfair labor practice, or it must have something to do with collective bargaining, negotiation, conference, self-organization.

Here in this case as I say, there was no notice, no demand, no ultimatum, no discussion, no conference.

You have a bold unannounced walkout.

Turning to the employer's activities in this case, you have no refusal by the company to do anything.

You have the instant action of the company in trying to correct the condition and the condition was corrected within minutes after the electrician arrived.

Working temperatures were normal by noontime.

Two months prior, the company had installed a 500,000 BTU furnace in a shop to supplement the heating plant.

So, we have here, it seems to me, a way to reconcile Section 10 (c) and Section 7.

Section 7 uses the word other concerted activities for the purpose of collective bargaining or other mutual aid and protection and it is submitted that the word other refers back to collective bargaining.

The mutual aid refers to an attempt by the employees to aid themselves in improving working conditions as to which there is a dispute.

It contemplates going to the employer conferring with him, negotiating with him, and if unable to agree then to take the ultimate weapon and strike.

But it contemplates in the first instance some attempt to resolve disputes.

The words mutual protection do not refer to protection against working condition and it is submitted.

If there is an abnormally dangerous working condition, the employee is fully protected by Section 502 of the Act which states that if they quit in good faith because of abnormally dangerous conditions per work at the place of employment, this quitting shall not be deemed to strike under the Act.

In other words, this definition confirms our thesis namely that when an employees walkout without making a demand or without conferring with their employer in any way.

But, because of some dangerous condition of work, this is not a strike in the true sense of the word.

A strike contemplates the ultimate weapon following a demand upon the employer or a concession and a refusal by the employer to concede.

Now, I say that protecting an unannounced walkout of the nature we have here will not effectuate the policies of this Act.

And then unless a reinstatement will effectuate the policies of the Act that cannot be ordered under Section 10 (c).

Chief Justice Earl Warren: What do you do Mr. Bair with the finding of the Board as quoted by Mr. Chief Judge Sobeloff in his opinion on 124 of the record where he says, "The trial examiner found, and we agree, that the respondent violated Section 8 (a) (1) in terminating the employment of seven complainants who were engaged in protected concerted activity under the Act.

We rely, inter alia, upon the following.

The credited testimony of the employee Hovis, that, "We all got together and thought it would be a good idea to go home.

Maybe we could get some heat brought into the plant that way."

The credited testimony of the employees Heinlein, Caron and George as to previous complaints made to the respondent's foreman over the cold working conditions, and to the effect that the men left on the morning January 5th in protest to the coldness at the plant, and the evidence of the seven complainants left the shop at approximately the same time.

Mr. Robert R. Bair: Mr. Chief Justice --

Chief Justice Earl Warren: Yes.

Mr. Robert R. Bair: The -- with reference to the complaints about the cold, I have already addressed myself to.

Chief Justice Earl Warren: But you have, but --

Mr. Robert R. Bair: The --

Chief Justice Earl Warren: -- hasn't the Board some discretion in determining whether a matter -- a thing is a complaint or a mere -- mere casual discretion?

It doesn't have to be a violent complaint surely it doesn't, in order to represent a complaint against cold conditions.

Otherwise, the more -- the more general the men were, the more considerate they were in their conduct, the less rights they would have.

They don't have to -- they don't have to do it in a turbulent manner, do they?

Mr. Robert R. Bair: I understand Your Honor and I agree with you.

But the evidence must be evidence of a serious complaint, evidence of something more than a topic of conversation it seems to me.

It has to be --

Chief Justice Earl Warren: Well I suppose if they called it to the attention repeatedly of their foreman who represents the employers that the Board would at least have the right, would it not, to consider those things as complaints particularly when it got down to 15 degrees, that's pretty cold for people to work in without the heat?

Mr. Robert R. Bair: Well, that is so Your Honor, but -- but that was a very special day, occasioned by very special circumstance.

The previous complaints were not complaints with reference to a day when the furnace was not operating.

The so-called complaints, I do not admit that they were complaints.

The general counsel asked them questions using the word complaints.

They replied in terms of -- I talked about the cold or remarked about it or asked about it.

That is -- that is our position Your Honor that the evidence was not of the sort that could support a current labor dispute.

In other words, a controversy between capital and labor over a cold working condition, it just does not take that status.

Chief Justice Earl Warren: But the Board have -- would the Board have a little more discretion in determining whether these were complaints or not but we're dealing with unorganized men who have no one to represent them on the other hand where they have a union with a shop steward whose duty it was to carry complaints to the management?

Wouldn't -- wouldn't you think that it could be a little less formal when you're dealing with men who are not organized and who might on the rule not want to go and complain literally to the employer but who would and -- well as he could call it -- call it to the attention of the -- of the owner that it was too cold to work in and so forth and then finally that they have (Inaudible) for these 15 of the men might be seriously injured in their health, they all get together and say, "We'll go home.

Maybe we can -- maybe we can have the situation remedied."

Mr. Robert R. Bair: Well Your Honor, in that situation, I fall back on the other phase of the argument that even if there is, even if you can say that this is a current labor dispute, you still have to look to the reasons for the discharge which are, the right to discharge for cause being protected by Section 10 (c).

And you have to try to reconcile the employer's right to discharge under 10 (c) with the employees' right to take concerted action under Section 7.

The motives of the employer in discharging these men cannot be laid to a scheme to coerce or intimidate these men or to interfere with their rights to take collective action.

The employer would have taken this action whether it was by one man or three or seven.

The employer's motives behind the discharge have long been looked at by this Court in other cases, and the power of the employer to discharge has been upheld by this Court time and again, Jones & Laughlin, the Fansteel case, they all advert to the fact that the Wagner Act does not interfere with the right of the employer to select and discharge his men.

It does interfere with his right only when by doing so.

He is trying to interfere with their rights under Section 7.

And finally, the rights under Section 7 being protected are not rights to take any kind of action but their rights to take concerted action directed towards the policies of the Act, towards negotiation collective bargaining which leads to elimination of labor disputes.

Chief Justice Earl Warren: Mr. Manoli.

Rebuttal of Dominick L. Manoli

Mr. Dominick L. Manoli: If the Court has no questions, I have no further to add.

Chief Justice Earl Warren: We'll recess then.