NLRB v. FLEETWOOD TRAILER CO.
Legal provision: National Labor Relations, as amended
Argument of Norton J. Come
Chief Justice Earl Warren: Number 49, National Labor Relations Board, Petitioner, versus Fleetwood Trailer Co., Incorporated.
Mr. Norton J. Come: Mr.Chief Justice and may it please the Court.
This case is hereon a certiorari to the Ninth Circuit to review the judgment of that Court denying enforcement of the Board's order issued against the respondent company.
The basic question presented is whether an employer interferes with strike activity and discriminates against strikers in violation of the National Labor Relations Act, where he treats returning strikers as having lost their right to be reemployed ahead of new employees simply because on the day that they asked for their jobs back, those jobs are temporarily unavailable due to a reduction in production caused by the strike.
Now, the basic facts are briefly these.
Respondent company is a manufacturer of mobile homes in California.
On August 6th of 1964, as a result of a breakdown in collective bargaining negotiations, between the company and the carpenter's union approximately one-half of the company, the 108 employees, went out in support -- went out on strike in support of the Union's demand.
That was an economic strike.
Because of this reduction in working force, the company cutback its production schedule which had been about 20 units per week to 10 units per week and curtailed its standing orders for raw materials accordingly.
By August 18, the company hired 21 new employees and some of the strikers had returned to work so that its workforce was now 71 as concurred with a prestrike level of about 108.
On that date, the Union accepted the company's last contract offer, terminated the strike and requested reinstatement of the remaining strikers.
Although the company intended to increase its production and workforce to the prestrike level as soon as possible and I'll come back to that later.
It explains that the Union, that it could not, right at that moment, handle any of the returning strikers.
The Union requested that the strikers be put on a preferential hiring list.
The company refused saying that although it would consider them for openings as they occurred, if desired, they'll remain free to hire from the outside market as well.
On August 20, two days after the strike ended, six strikers applied for reemployment and on a number of occasions thereafter, they renewed their applications making it quite clear that they were ready and able to return for work.
Between October 8 and 16, the company hired six new employees for jobs which the striker applicants were qualified to fill.
None of these jobs was first offered to the strikers.
The six striker applicants were reemployed between November 2nd and December 14th.
.justice Potter Stewart: No questions that this is an economic strike?
Mr. Norton J. Come: There is no question that it was an economic strike, not an unfair labor --
.justice Potter Stewart: Not on unfair labor practice?
Mr. Norton J. Come: That is right Your Honor.
The Board found that when the six strikers applied for reinstatement at the end of the strike, they had not been permanently replaced.
No one has been hired to fill their particular jobs.
The Board further found that the lack of immediate openings at that time was a temporary condition which the company knew would change and intended to change was its purpose later achieved to return to full production and to a full crew as soon as practicable.
The Board concluded that in these circumstances, the strikers were entitled to be reinstated, a job when it came open and then when the company failed to do that in October and instead hired new employees, the company discriminated against the strikers in violation of Section 8 (a) (1) and (3) of the Act.
The Board ordered the company to cease and desist from its unfair labor practices and to reimburse the strikers for any loss of earnings attributable to the failure to hire them in October.
.justice Potter Stewart: Isn't that -- Mr.Come, am I wrong in thinking that maybe the basis you view here is one of fact.
The Board as I understand it found true and was drawing it, conclusion of fact that it found that these jobs has not been permanently -- these people have not been permanently replaced nor had their the jobs been permanently abolished.
The Court of Appeals found that they had been permanently replaced or that their jobs have been abolished as of the time that they applied.
Do you and your -- counsel on the other side really differ as to the applicable provisions of labor law?
Don't you really differ as to the propriety of the Court of Appeals setting aside the factual determination of the Board?
Mr. Norton J. Come: No, Your Honor.
I submit that it is more than a question of fact because what the Court has done here is to treat a temporary job unavailability as the equivalent of a job -- as the equivalent of a permanent job abolition.
And we submit that that is a question of law which has very serious impact upon the right to strike.
The reason that the Court --
.justice Potter Stewart: Well, you would not say would you that if the jobs had been abolished or -- and more predominantly if the -- if there had been permanent replacement hired, you wouldn't -- you would have -- you would not say that the refusal -- if they hire these applicants, it would have been an unfair labor practice, wasn't it?
Proceeding on my factual premise?
Mr. Norton J. Come: Now, the -- under the Board decision, the Board was not have found that the refusal to take them back when they first applied in August would be an unfair labor practice.
It might have a case of subsequent discrimination if they had a continuing application.
But had there been --
.justice Potter Stewart: Permanent replacement --
Mr. Norton J. Come: A permanent replacement --
.justice Potter Stewart: And economic strike --
Mr. Norton J. Come: Or a permanent job abolition --
Justice Byron R. White: Right.
Mr. Norton J. Come: The Board would not have found a violation --
.justice Potter Stewart: They tell you to hire these people was not a fair labor practice.
Mr. Norton J. Come: Now, what you had here was nothing like that and it is so substantially different on those two situations and we submit that it does present a very basic legal question.
I would like to illustrate what I'm talking about here.
Now, this was not under Mackay, there is no question that in an economic strike, the employer would have a right to hire permanent replacements.
Now this was not -- despite the fact that the respondent here talks of this as though it were a situation of replacement, this is not a Mackay situation.
By that, I think it's perfectly clear that respondent did not show in this record that it was his obligation to do.
He didn't hire any particular person to replace the new strikers.
I think that that's quite apparent on the letter which the respondent's counsel wrote to the Union which appears at page 81 of the record where he says, “Since we did not hire nearly as many replacements as the number of persons on strike, it's really impossible to supply a statement indicating which individual strikers the new employees replaced.
And similarly, the plant manager at page 62 of the record said that as to who replace who, it is difficult to say.
But as to what man filled, what man's position on page 63, I can't honestly say these men were hired in preparation for increasing the production and getting it backed up.
In other words, the company was in the process of expanding its production back to the pre-war level even -- no, it hired some new employees.
It was still well below at least over 30 jobs below of the pre-war compliment which it was intending to get up.
There was no replacement in -- on Mackay, nor was there any permanent job abolition in the sense that the prior cases have regarded as legally sufficient to be the equivalent of -- to be sufficient could deprive the employees of their employee status.
Because after all, what we have to set is again is to require of course specific provisions in Section 2 (3) of the Act which says that an employee on strike has not lose his status as an employee.
You have to have something -- a very substantial before it is going to rise to a stature of being sufficient, could deprive the employee of his employee -- a striker of his status as an employee.
A permanent replacement is one of those things.
Yes, permanent job abolition is another one.
Now, let us examine that.
With respect to that, we have the credited testimony here of the plant manager, Mr.Chapman, on page 51 of the record in which he is asked, “Did you subsequently increased your program production of units?”
He answered, “Yes, we did, for the purpose of purchasing and getting reorganized, we agree that we would -- say, programs 10 units a week until we found out how things was going.
But it was our intention to get back the flow production as soon as possible”.
And he repeats the same thought on page 17 -- 57 of the record.
You did intend at all times to get production as quick as possible up to 20 trailers a week, correct.
So here is a situation where at the time the strikers asked for their jobs back, on August 20, those jobs were not filled by anyone that was hired during the strike as replacement for the strikers nor could it fairly be said that in any realistic sense, those jobs had been abolished.
Justice Byron R. White: Oh, are you -- are you suggesting that this was a thought (Inauidble) the aftermath of most strikes at least its production doesn't start automatically as descending take -- that they ask the striker and that the -- for that reason, there has been no room for the strikers for the turn of the -- takings (Inaudible) and they were entitled to have those positions, Is that the kind of situation (Inaudible)?
Mr. Norton J. Come: That is the kind of situation they think Your Honor because what I'm getting through now and the last analysis, what we have here is a problem of balancing the action of the employer against its effects upon the rights to strike.
And since -- what occured here is likely to be a situation in most strikes to regard this kind of a temporary job unavailability.
It's wiping out the striker's employee status is inherently disruptive of the right to strike and is trying to mean that in virtually every strike, a striker is going to run the risk of this kind, the loss of his employment status.
It is a far more devastating than the right of permanent replacement which is recognized in Mackay because after all, permanent replacement depends upon a number of variables.
It depends upon the nature of the labor market at the time of the strike, the skills that the strikers possessed.
There's no (Inaudible) that the strikers are going to be replaced by going on a strike.
As a matter of fact, that the anomaly, if you adopt the principle of the Court's norms that this kind of temporary job unavailability is enough to supply the employee -- the strikers of their employee status is that the more effective the strike, the more likely the strikers are going to find that their employment status is going to be lost because it would take the employer a little longer to get back into production.
To give the best example, if the strikers are wholly successful to get everybody in the plant out, they offer to come back two weeks earlier, it's going to be most (Inaudible).
The employer was not able to hire any replacements at all, he's not going to be able to open up that day or the next day.
Its going to take him a couple days and under the principle of the court below here, those strikers lose their employee status.
We submit that, as far as recognized that the Board (Inaudible) strike the balance of the -- the balance of the Board confronts here is defining that this kind of a job unavailability is not an opportunity to deprive the strikers of theiremployment status.
And (Inaudible) could have been (Inaudible).
And I should point out that one has got (Inaudible) taking this important law.
I think it is important to (Inaudible) probably thrown off basically by (Inaudible) of the Board and I think that those (Inaudible) distinguishable on their fact that the holdings of -- it is (Inaudible).
Unknown Speaker: Are these briefs in (Inaudible)?
Mr. Norton J. Come: (Inaudible)
Justice Byron R. White: (Inaudible)
Mr. Norton J. Come: Well, what we had is the Board's decision.
The Board forced on the (Inaudible)
Justice Byron R. White: But Does it -- (Inaudible)
Mr. Norton J. Come: (Inaudible)
Justice Byron R. White: (Inaudible)
Mr. Norton J. Come: Well --
Justice Byron R. White: (Inaudible)
Mr. Norton J. Come: They filed (Inaudible) decision on page 87, Footnote 4, (Inaudible).
I think this --
Justice John M. Harlan: (Inaudible)
Mr. Norton J. Come: (Inaudible)
.justice Potter Stewart: (Inaudible)
Justice John M. Harlan: (Inaudible)
Mr. Norton J. Come: I understand Your Honor.
Chief Justice Earl Warren: (Inaudible)
Argument of Hugh J. Scallon
Mr. Hugh J. Scallon: Mr.Chief Justice may it please the Court.
The Court has shown itself familiar with the basic facts in this case which are substantially as outlined by Mr.Come.
The factual nature of this dispute, I think is made very clear if I may simply quote one sentence each from the decision of the National Labor Relations Board and the decision of the Ninth Circuit.
The National Labor Relations Board and this appears in the record at page 87 said, “None of the six had been permanently replaced.
The lack of job openings on August 20th was a temporary condition”.
The Ninth Circuit on review and specifically quoting the language on scope of review from Universal Camera, stated, “The record demonstrates that the jobs had been abolished or absorbed for an indefinite period of time and only later were they recreated."
This is basically the issue of this case, the fact issue whether these jobs had been permanently abolished or only temporarily unavailable.
Justice Byron R. White: What was the page (Inaudible) for your second quotation.
Mr. Hugh J. Scallon: The second quotation appears at page 101 of the record Your Honor.
Justice Byron R. White: (Inaudible) the fact that there were 71 jobs that the -- when the strike was settled and only 68 when these people applied for reinstatement?
Mr. Hugh J. Scallon: Well, we take two positions on that sir.
The first one is that this definitely goes to show that what we had had here was not a temporary aba -- temporary displacement of jobs due to the strike.
Actually, two months after the strike, employment was still decreasing.
In spite of the fact, and the Ninth Circuit specifically cited the record on this account that the -- a record shows that all strike associated disabilities were cured or were curable within 30 days, the training of employees and getting supplies and so on.
Now this proves that what we had here was an abolishment due to an economic state of affairs.
Essentially, it was nothing but a layoff which happened to coincide with a strike.
And second of all, we would point out that to the extent that there was a decrease of employment, these new job openings that occurred in October were really nothing but filling the place of permanent replacements.
And it's well established that there is no right to preference on the part of strikers with it then replaced to --
Justice Byron R. White: So three replacements -- there had been -- three openings had been created out of the 71 jobs that were in existence at the end of the strike.
Mr. Hugh J. Scallon: That's right.
Justice Byron R. White: Now, did the Labor Board or the deal with -- what you -- what that would mean is a difference between three of these people and three others?
Mr. Hugh J. Scallon: That's right, the Labor Board --
Justice Byron R. White: Did they deal with that at all?
Mr. Hugh J. Scallon: The Labor Board did not deal with it.
The Court of Appeals did deal with it and has treated it in this way that to that extent they were -- did constitute nothing but a replacement of replacements.
Justice Byron R. White: But what do you do with the fact that five months later, you were back to prestrike levels, just like you at all -- like you're plan -- said the -- that he is intended to be --
Mr. Hugh J. Scallon: Well --
Justice Byron R. White: -- as soon as possible.
Mr. Hugh J. Scallon: Five months is a long time Your Honor in the industrial market.
This strike occurred in August, this prestrike production or this is what you might call a prestrike production level and there's really no magic in saying that there was a 110 employees and 20 units before the strike.
But even so, this level was not achieved until five months after the end of the strike and there is no evidence in the record that this represented a calculated regrouping of the --
Justice Byron R. White: Well there's evidence, is that -- there's evidence that the -- that your client intended to get back to prestrike level as soon as possible.
Mr. Hugh J. Scallon: That's right Your Honor.
And if -- but as the Court of Appeals pointed out and this appears at page 100 of the record, that these four lines which were reported by the -- by Mr.Come, really were addressed to nothing more than big intentions as to future plans.
The specific test to the specific course of events however was that the production had remained -- it was actually slightly less than their capacity at the end of the strike two months later.
Justice Mr. Justice Brennan : Mr.Scallon, do I gather that if these were in fact a situation of temporary unavailability, you would concede that the Board order should have been enforced?
Mr. Hugh J. Scallon: Oh, yes sir.
We stipulated that --
Justice Mr. Justice Brennan : Well, now -- except for three people?
Mr. Hugh J. Scallon: That is right Your Honor --
Justice Mr. Justice Brennan : Well now --
Mr. Hugh J. Scallon: That stipulation appears in the record in this brief.
Justice Mr. Justice Brennan : Well, I would have take the Board finding in that respect as a finding that this was a temporary unavailability situation.
Mr. Hugh J. Scallon: I feel that -- that was their finding of the fact.
Justice Mr. Justice Brennan : Well then -- then I gather the -- on the Universal Camera, the only issue for the Court of Appeals are that whether there was substantial evidence to support that finding?
Mr. Hugh J. Scallon: That's right sir.
Justice Mr. Justice Brennan : Is that what this case contend to?
Mr. Hugh J. Scallon: Yes sir.
And the Ninth Circuit Court of Appeals supported Universal Camera and in this Court there is no contention by the petitioner that the Ninth Circuit misapplied Universal Camera.
Now, under -- question of the Board president, the petitioner's brief and Mr.Come here today could only distinguish them on the grounds and I'm quoting from his brief now, “The strikers' jobs had in effect been abolished”.
Now that is precisely the very question which the Board itself said it was determining, which the Ninth Circuit said it was determining so that they cannot constitute a valid distinction of those cases.
Unknown Speaker: Well, I think that's just wrong.
Mr. Hugh J. Scallon: Now, although not addressed to an oral argument here, the petitioner suggest that a different result might be compelled in this case because of this Court's recent decision in the Great Dane case which holds that given the discriminatory act by an employer, that an intent to discourage membership in a union organization in its broad sense can be inferred in the burden of proof shifts to the employer to justify his action.
Now, we submit that Great Dane is not applicable to this case for these three reasons.
First of all, as Mr.Come said this morning, the Labor Board concedes that no preference is required for strikers whose jobs had been abolished, now I submit that it couldn't have been the intent of Great Dane to require an employer to justify an action which the Labor Board concedes as a matter of law it had a right to do.
Secondly, and probably recognizing the foregoing, the law of the Labor Board in it's own brief here only applies Great Dane to unreplaced economic strikers.
That appears in their brief at page 10.
Now, as I indicated, we stipulated at the hearing orally to -- on the record and we have contended ever since that if the strikers' positions had not been permanently abolished, they were entitled to preference.
But if they had been permanently abolished, they were not entitled to preference.
But again, this turns on that fact issue.
There is even however -- I think a more fundamental reason why Great Dane is not applicable to this case.
And I think -- and it goes to the whole heart of the Government's action.
In Great Dane, the -- an employer on July 12th suddenly announced that back as of July 1, vacation eligibility would be determined.
The result was that the strikers were not eligible for vacation, nonstrikers were.
At least in the opinion of the majority, this was a clear case of discrimination and the Court to hold it to both of its opinion to the issue of intent and burden of proof in that regard.
Now, the Court pointed out in Great Dane an 8 (a) (3) violation consisted two elements, ithas to have the discriminatory act and there has to have the intent to discourage union activity.
Here, we do not have the first element of the 8 (a) violation, a discrimination.
As the record shows the -- and the Court of Appeals so found, what we had here was really a permanent cutback of operations and these strikers were unemployed as a result of a permanent cutback.
And this doesn't constitute a discrimination, and again, I -- I think the best statement of why it doesn't constitute a discrimination appears in the petitioner's brief where they say and I'm quoting, this is at page 15, “Where there's always a risk that changes in economic conditions or inefficiency of production may prompt the elimination of the jobs that some employees hold.
And still another argument, what seems to me to be basically inconsistent incidentally with the Board's acceptance of the general principle of permanent abolishment constitutes replacement, the petitioner here suggests that we should be compelled to establish a preferential hire list because the employer might use an economic cutback as a deliberate subterfuge to pun -- to continue to punish strikers after the strike is over.
Now, this I submit is just another way of raising a fact issue.
It goes to the question whether there was in fact abolishment or whether there is a deliberate withholding of the position from the employees.
I'd like to point out here, that the hearing examiner found, the Labor Board adopted and the Circuit Court approved the finding that the employer had no conscious intent to discriminate against these employees.
Its discrimination if any was inadvertent in determining whether there had been a permanent cutback or not.
Turning to the amicus brief and so far as it goes beyond the intentions of the Labor Board, is the position of the AFL-CIO that notwithstanding the entire body of law that has developed under the Mackay Radio case back 1938, this Court sua sponte should establish a rule that an employer must create a preferential hire list or striking employees regardless of the business conditions and so on that exist after the strike.
It is very candid in its brief and is -- and it admits that the contrary rule had been applied and I've quote without exception since the Mackay case was decided.
Now, there are a number of reasons why the Court should not act on the suggestion of the amicus in this brief or in this case.
I'd say first of all, that this is not the type of case that this Court decides as a matter of first impression.
This is a highly important and highly -- very noble decision that should not be made without the -- without prior consideration of lower levels.
As this Court said in the (Inaudible) case, which I quoted in my brief, followed the Board's decision is not the last word, it must assuredly be the first.
Second, I believe the contention of the amicus is not sound in law either in the language of the statute or in its legislative history.
First, looking specifically at the language of the statute, Section 9 (c) (3) deals with the rights of strikers who have been replaced and speaks specifically in terms of reinstatement.
Section 9 (3) -- (c) (3) simply gives them a very limited right, the right to vote and we submit that the limited nature of this grant indicates that the Congress did not have in mind to grant them any additional right beyond this point.
Second, if you look at -- or third rather, if you look at the legislative history of the 1947 and 1949 amendments to the Labor Management Relations Act, there are twice specific reference to the Mackay Radio case and is significant, the language that the spokesman at that time used is the position of the amicus that Mackay holds nothing more than that an employer may hire permanent replacements, but did not address itself to the question of what the right of those persons who have been replaced -- what their right will be after the strike is over.
But if -- we're referring to page 22 of my brief where the pertinent legislative history is given, it should be noted that the Senate Report Number 1126 says this, “If such strike is an economic one and not caused by an unfair labor practice of the employer, strikers permanently replaced have no right to reinstatement”.
In other words, Congress at this point had recognized the further extension of the Mackay doctrine that it not only give the employer the right to replace but hire replacements, but it also terminated the rights of reinstatement of the replaced employees.
Now, that's from the Senate -- that is from the report.
As all -- I had -- it's very significant, although it comes from a critique of the bill, Senator Pepper used this virtually identical language.
Finally, there is a practical reason why the Court should not change this rule at this stage of the game.
This has been the virtually universal -- or the universal rule for almost 30 years and employers all over the United States have acted in reliance on these rules concerning reinstatement.
Now, if this Court were to change that rule today and apply it to my client, essentially on a retroactive basis, the result would be that subject only to the statute of limitations, every employer in this comp -- in this country, who hired as of -- which might call off the seniority list, in other words a new employee would be subject to an unfair labor practice finding and the substantial back pay liability.
I've cited in the -- in my brief, the cases in this Court which point out that when there has been a long reliance, unchallenged on an administrative interpretation of an act that this Court will not likely reverse it.
I have nothing more unless the Court has some questions, I will --
Justice Byron R. White: Well, what would you do if the period here is getting back to a full production for 30 days if I joined this -- and had then a refusal to be reinstate sometime during the 30-day period on the ground that we (Inaudible) with those employees but and they hired somebody else?
Mr. Hugh J. Scallon: Well, I think your question Mr.Justice White illustrates the very factual nature of this case.
There's no -- there's going to be some industries in which you can put people back to work the very next day doing what they were doing, you've had a repetitive type of work with a ready market for it.
A department store where the employees can walk back in the door and walk behind their counters and ready to go back to work.
It may have a contrary situation of the -- whether the maker of a locomotive factory or some capital goods factory in which heavily dependent on orders in order to be --
Justice Byron R. White: Are you saying then that the -- that all jobs other than those which are in existence at the day -- on the day the strike ends, have been abolished?
Mr. Hugh J. Scallon: No sir.
No, we had never made that contention and that is words that --
Justice Byron R. White: Well, what other jobs are available at the end of the strike, other than those jobs that -- in which people have been working?
Mr. Hugh J. Scallon: I would say the jobs should be considered available are those which -- once the employer or those which will be created as the employer recovers from the effect of the strike.
But once the effect of the strike has been obviated and the employer then continued, then he's simply is in the position of -- as if there had been a layoff for instance.
Justice Byron R. White: Well, what's -- here's a strike one day and -- the strike is over on one day.
And five months later, the employer in fact to where he was before that strike.
Well, whatever got him below a prestrike level strike did, isn't it?
Mr. Hugh J. Scallon: The strike did, but also from the record, apparently, there must have been a shift in the market because as I say, the records shows and the Ninth Circuit found that the effects of the strike were overcome in 30 days, yet the employer contend -- continued to operate at that reduced level.
Justice Byron R. White: Are you saying that even if there hasn't been a strike, the employer couldn't -- could've fallen off to the strike.
Mr. Hugh J. Scallon: That's definitely in -- there's -- the record would indicate that, yes sir.
Chief Justice Earl Warren: Didn't the Court of Appeals indicate that the -- they said judge this as a number of jobs that were available at the conclusion of the strike?
Mr. Hugh J. Scallon: Well, the Court of Appeals quoted some language from the Brown & Root case which would appear to establish a highly arbitrary cutoff.
It says that essentially, that is to be determined as of the day that the strike has ended.
I think what you -- the problem there is a little bit of a conceptual one.
Ordinarily, the question whether a man had been replaced in a situation of abolishment isn't going to come up the day the strike ends.
It's going to come up later on down the line when there is a new opening, just as it did in this case.
That's what this whole case is about when you get on down the line.
Nevertheless, the status of the employee is actually determined as to the end of that strike -- but you, but the question comes up and the evidence to which the Court looks would be both the evidence which exist on the day that the strike ends and also subsequent evidence.
And the opinions of the Ninth Circuit is a good illustration of this.
They -- while they made that is determined as of August 20th, they didn't went on to point out to see, if you look at this, the employer had a capacity to produce 15 units at the end of the strike, two months later it's only producing 14.
He had said -- by the end of the strike he had 71 employees.
Two months later, he had only 68.
In other words, that -- the statement of the Court of Appeals is not to be taken literally.
Chief Justice Earl Warren: And you wouldn't suggest (Inaudible)?
Mr. Hugh J. Scallon: No sir.
Chief Justice Earl Warren: And if a -- if they found the fact contrary to the Board, with that concept in mind, what would say?
Mr. Hugh J. Scallon: Well, I think sir that the -- I would say this, that the opinion of the Ninth Circuit clearly shows that it did not make it that -- that they can't make it under that determination because if so, all this information about what happened two months later would be totally irrelevant.
Yet, the Court set it out in detail.
I would say in defense of the Ninth Circuit, that it quoted this language verbatim from the decision of the National Labor Relations Board.
Chief Justice Earl Warren: Mr.Come.
Justice Mr. Justice Brennan : Mr.Come, why isn't this just as it --
Rebuttal of Norton J. Come
Mr. Norton J. Come: Well --
Justice Mr. Justice Brennan : -- Mr.Scallon had suggested, nothing except a question whether the Court of Appeals correctly applied Universal Camera.
And if that's all it is, what might have been possibly the result?
Mr. Norton J. Come: I intended to answer that question first Your Honor.
I think that it is not a pure fact question for the reason that the Chief Justice has suggested, namely, you look at the Court's opinion on page 100, the last paragraph.
“With such an intent directed to the future is not the determinative of the question of whether or not the jobs had been abolished, tested as of the date when the strikers applied for work”.
I think that the Court in finding contrary to the Board in here that these jobs had been abolished, did so under the erroneous legal premise.
If you will look only at the situation, on the day that the strikers come back, now once you eliminate that premise, I submit, that the Court of Appeals probably would have and indeed should have sustained the Board's finding, because on this record, it's quite clear, you'll had only a temporary job unavailability to -- specifically to strike conditions.
There is no suggestion here that there was any change in market demand.
The vice-president, Mr. Weidy (ph) testified in the record here at pages 37 and 38 that the reasons that they were not able to pick up immediately was a two-fold one.
One, so the people that they hired during the strike, the new people were untrained.
They needed to be trained.
Secondly, orders for raw materials had been cancelled during the strike and it took 30 days to refill them.
Justice Mr. Justice Brennan : Well, I gather Mr. Come that -- these were on the -- the Universal Camera problem, perhaps I shouldn't say again, do you or do you not agree -- if only Universal Camera then -- right or wrong is -- does Universal Camera contemplates with you (Inaudible) into your case?
Mr. Norton J. Come: I think that's right.
Of course, Universal Camera has the safety valve that where you have a situation where the Court has so grossly applied it, this Court will step in.
Justice Mr. Justice Brennan : Have we done that often?
Mr. Norton J. Come: No, you have not done it often.
Justice William O. Douglas: I thought that the issue was not what you read or I think a hundred (Inaudible) would compensate a 101 in the mind of the Court of Appeals, I mean, if the record demonstrates that the jobs has been abolished and absorbed in an indefinite time?
Mr. Norton J. Come: Well, I submit to Your Honor that the reason they made that finding is because they were operating under the erroneous legal principle that they set forth on page a 100 before they get to that conclusion.
Justice William O. Douglas: But if that was true, that the jobs had been abolished, as soon as it is -- as a fact then there would be no issue here (Inaudible)?
Mr. Norton J. Come: That is correct, there would be no violation either.
Now, with regard to this five-month business, this is not a five-month situation.
The -- it's true they didn't get up to full levels of the production until five months.
But they started picking up within six weeks when they made their first hires.
They hired -- they took back -- they hired three new people and there was no showing that they were any better qualified than the --
Justice Byron R. White: Well, what about the --
Mr. Norton J. Come: -- three --
Justice Byron R. White: -- when they hired the -- they were pretty short with what they had when the strikers --
Mr. Norton J. Come: Well, with respect to that Your Honor --
Justice Byron R. White: Don't you have to deal with that?
Mr. Norton J. Come: Well, I think that the Court has dealt with it by finding that none of the people that were hired during the strike were replacements for any of the strikers because the company did not indicate that they had replaced any particular striker and who was in the process of expanding its workforce.
So therefore, the threat -- the inference that the Board --
Justice Byron R. White: Yes, but you'll have to admit, it is -- you have to say that none of the strikers could have gotten the company to replace any of the 71 people that they had on the payroll in the strike whether they were replacements or whether they were returning -- strikers who had returned.
Mr. Norton J. Come: No, but the point is --
Justice Byron R. White: Isn't that raised, isn't that right?
Mr. Norton J. Come: Well, that is correct but the --
Justice Byron R. White: Well, then the company does the way of either three people lie -- die or leave or something, three of those 71 jobs, there are some strikers have first (Inaudible).
Mr. Norton J. Come: Because the strikers' jobs were not filled because the company had a work compliment of a 108 before the strike and they were going to a 108 at all times and they ultimately reached that.
Now the fact that they have 71 jobs filled, leave at least 30 some odd that remained to be filled.
And there --
Unknown Speaker: (Inaudible)
Mr. Norton J. Come: -- there were only six strikers here --
Justice Byron R. White: You'd put all the three jobs as a 106th, seventh and eighth job, they still considered it.
Mr. Norton J. Come: Oh, I submit that the burden is upon the company to show that that is not so.
That that law presumes it as that's so -- that that is so, unless the company is able to establish as they were unable to do --
.justice Potter Stewart: I'd say, last in, first out.
Mr. Norton J. Come: That is correct.
They were unable to do that on this record and in the passages that I read you.
Now, with respect to the Board cases, I just want to say this Mr.Justice Stewart.
It is in quite as flat as I left it, not only did the trial examiner indicate that the Brown and Root case was factually distinguishable.
He cited the case there called (Inaudible).
And in that Board case, the Board draw the distinction between strikers who are permanently replaced and those who are not permanently replaced.
And it points out that with respect to those who are not permanently replaced the employer is under a duty to recall them as work becomes available.
We submit that that --
.justice Potter Stewart: As I understand there is no disagreement between counsel on that legal question at all?
Mr. Norton J. Come: On what --
.justice Potter Stewart: It's a -- if strikers have been permanently replaced -- an economic strike, and there's a
Mr. Norton J. Come: -- That is correct.
.justice Potter Stewart: -- to rehire --
Mr. Norton J. Come: That is correct.
.justice Potter Stewart: If they have not been -- and it's an economic strike, and they apply, then there is a duty to rehire.
I understand there is no issue between counsel on that problem whatsoeer.
Mr. Norton J. Come: On that issue the --
An issue was raised however by the position of the AFL-CIO, I believe (Voice Overlap).
.justice Potter Stewart: Yes, but you're not espousing that position are you?
Mr. Norton J. Come: No, we are not espousing that position.
But this is not a case of permanent replacement in the Mackay sense.