Earl Warren: Number 153, Olin Mathieson Chemical Corporation versus National Labor Relations Board. Mr. Stuart.
William A. Stuart: May it please the Court. And if the Court will find that there's no material conflict in the facts in this case. The question involved as to whether strikers, even though nonstrikers who come back to work during the strike and before the Union has ordered back the body, the main body of the strikers, to come back and are reinstated in their permanent tenure whether they must be replaced or displaced in order to make run for the strikers who strike it out until the Union ordered them back. That is the prerogative question involved as to the effect, if any, of length of service upon the employees involved here, to the effect particularly of some of the employees who stuck it out to the end having greater length of service than the any employees who abandoned the strike and came back and were reinstated in a permanent tenure while the others were still there. Now, what happened in the case was that this employer which operates the plant at Morgantown, West Virginia, a chemical plant, made a study of the maintenance work with the view to determining why it was costing more than it seemed it should cost. As a result of that study, reorganization of the maintenance department was determined upon involving a reduction in force of 94 of the maintenance employees. However, before the layoff list could be prepared and the layoff made, the strike intervened. The maintenance force consisted of 234 employees, all of them union members, all of them members of these Unions who initiated the present proceeding. Now, the strike was an economic strike. There is no question anywhere in this case about any unfair labor practice being connected with the strike and the reduction of force was also an economic reduction, no question of any unfair labor practice in determining upon the number of employees to be replaced. While bargaining negotiations were going on between the employer and these Unions for looking to -- making of a new collective agreement, the contract expired. And some two weeks after that, the strike began there -- there being no contract. As to the seniority rights -- the seniority rights expired as we contend with the contract. Those rights were purely breach of contract, and when the contract came to an end, so did the seniority rights. Now all of this happened, the specific occurrences out of which this case finally -- although, all happened in -- in quite a short time. The general workers and the maintenance workers didn't go out. I mean the production workers didn't go out. The maintenance workers went out on strike, the production workers did not and the company decided to attempt to continue to operate the plant and not to close down on account of the strike. Some other strikers, as I said, triggered back to work and among of them, there are seven who are the employers whom the Board, by its order, has directed to be reinstated in lieu of seven others who must thereby be displaced. The company gave notice to the Unions after the strike had been going on about a couple of weeks that it would begin to interview applicants for jobs to replace the strikers. And two days after that, the Union ordered the whole mass of remaining strikers back to work without any settlement, not only saw that on a notice, this body of men just suddenly appeared. And at that time, on account of the previously determined reduction in force, there were 94 more employers applying for work and that were upon the job of this sort. However, these employers all appeared at once, the company was wholly unfair that had no notice and liability of coming back, it couldn't tell of course how many had come whether all, or only a -- a large part and tell who had come and who had not. So there, it was confronted with the -- upon the risk of what to do. Well what they did was to let them all in. The plant had been strike bound now for some three weeks and -- and probably, there was plenty of -- of temporary work to be done so they -- they let them all in. And they got down to work to make out the layoff list in preparation for putting into effect in the predetermined but delayed reduction in force. And then -- well, in less than two weeks, after the balance of the strikers came back, this work was done and the names of the 94 would be laid off had been determined. And then on April 2nd, the men were ordered back on the March 17th. On April 2nd, the parties met in collective bargaining, well if you again can try to settle the issues which would follow the strike in which they again failed. But at that meeting, the employers' representatives informed the Union that the layoff had been determined upon and gave notice as to the names of the employers who would be -- who would be laid off. And those employees included the seven who are the complainants here. And they had greater length of service than the seven who had been -- who had returned earlier among -- they were among the trip that goes back, and who would have to be displaced upon the reinstatement of these seven. And after this collective bargaining contract, the employer proposed a clause going to the seniority provision of the new collective agreement which confirmed that the employees who trickled back before the Union ordered back the bounds that they would have permanent tenure before the employees who came in at the end with respect to future layoffs' event. In other words, providing that --
William J. Brennan, Jr.: How was that done, by a general notice or just to -- to those who returned?
William A. Stuart: That was by a written proposal to the Union representatives on a clause to be included in the new collective agreement.
William J. Brennan, Jr.: No, I mean, this advised to those who returned before the main body of workers that they would have a permanent status. Was that told to them at the time they came back?
William A. Stuart: It was not, Your Honor. Nothing was said one way or the other.
William J. Brennan, Jr.: In other words, the first notice of this was on the occasion of the collective bargaining for the new agreement subsequently for the return of everyone.
William A. Stuart: So far as the record shows, nothing was said one way or the other when the men came back or than the later time until the layoff list was being made out. But I must say that the facts briefly and they indicate that it was assumed that this man did come back with permanent tenure that they were reinstated as returning strikers with permanent tenure.
William J. Brennan, Jr.: Well, but ahead of everyone else? You say it was assumed.
William A. Stuart: It was assumed here. The point was this, Your Honor. As we contend, here was the plant with a number of available jobs. The plant was endeavoring to continue to operate, and were practically without maintenance employees. There was a great need for maintenance employees in order to continue the operation of the plant. Now, when these men came back, they were employees, they were on a strike, they were entitled to reinstatement and they got it. And --
William J. Brennan, Jr.: Well, what I'm trying to get at of course is whether -- is there anything in this record which justifies an inference that one of the inducements to get these seven or whatever the number may be to come back in advance of the large body, was that they would, by coming back, get preferential status seniority wise?
William A. Stuart: No, Your Honor, and strangely, when I say strangely, and then relate the Court held that of that had happened, if the employer had offered the strikers as an inducement to return, the assurance of permanent tenure above those who would have, who stayed out, and then the decision would have been different. But that would have brought it within the Mackay doctrine which I will -- will come to. But that -- that position, we strongly disagree with. If the Court please, we don't think that the employer had any right in the world to seek -- to get these employees to abandon the strike by offering them inducements. And we think that it would have been sure to have been the object of a complaint by the Unions for strike breaking if it had done that.
Hugo L. Black: Well, that's what -- isn't that what the Court -- the basis on which the Court acted and that was what the Board had found that they did do it for the purpose of granting a property?
William A. Stuart: No, Your Honor.
Hugo L. Black: What -- I don't quite understand. What's meant by the statement on page 26? Is it this case or some other case?
William A. Stuart: 26 -- 26 of what, Your Honor?
Hugo L. Black: Right here on the second part of it. Well, it said Judge Dobie. Judge Dobie said whether the question presented all, whether the Board has properly found that the company violated Section 8 (a) (3) so forth by changing its seniority policy after a strike to give preference to nonstrikers and to employees that return to work.
William A. Stuart: After the strike, Your Honor. I understood that Mr. Justice Brennan was inquiring whether these strikers, while the strike was on, were offered any inducement to come back to work and abandon the strike. But what Judge Dobie is talking about there is the proposal which the employer made and which the employer -- you know that would've put into effect when -- and then passed, developed in the bargaining negotiation doorway. The proposal that the contract recognized the fact that these men who came back, while there were available jobs and before the body had been ordered back by the Union, did receive permanent tenure. And that therefore, in the case of future layoffs, the man who came back last would be laid off before, there was -- who trickled back during the strike. But --
Hugo L. Black: What does he mean by saying "Always does not dispute the fact, promulgation and implementation of its superseniority policy was discriminatory in favor of employees abandoning or not participating in the strike --
William A. Stuart: What page is that?
Hugo L. Black: -- against those remaining on strike until it called out."
William A. Stuart: What page is that, Your Honor?
Hugo L. Black: Page 27 and 28 right at the bottom of 27 and top of 28.
William A. Stuart: Well, I don't think -- I don't think he meant it. At any rate, I don't think it would have been justified if it was meant discriminatory in the sense of being a violation of the Act. Now, there isn't any question that if these men who trickled back, then on being reinstated and before the other men came back did actually -- were actually entitled to and did actually receive permanent tenure. There isn't any question that by getting that, they got a superior position as to future layoffs, although those who struck to strike out -- strike out to the end.
Hugo L. Black: And that Olin did promulgate and implement its superseniority policy to accomplish that purpose.
William A. Stuart: Well, that is the proposal which was made to the Unions by the employer on -- at the first collective bargaining negotiation and conference after the strike ended.
Hugo L. Black: Then he added not as all and denied that its action discouraged union activities.
William A. Stuart: Well, I think that's a matter of -- of inference, Your Honor.
Felix Frankfurter: But the Board drew -- drew it.
Hugo L. Black: Oh, it felt.
Felix Frankfurter: The Board drew it
William A. Stuart: Of great many things --
Hugo L. Black: Judge Dobie said all and then denied.
William A. Stuart: Well, I -- I don't deny it. I don't think anyone could deny that. It discouraged union activity very much for these men to lose a strike.
Hugo L. Black: Well, he didn't say lose a strike, if that --
William A. Stuart: I know he didn't, but I'm saying that.
Hugo L. Black: Then the Olin adopted a policy and put it in effect for that purpose.
William A. Stuart: In other words, there are great many things may have a discouraging effect on union activity and so, with the difference, I say this to Your Honors, still may not be a violation of the Act.
Felix Frankfurter: But wasn't -- wasn't there a year, a purposeful classification as to seniority rights, purposefully disadvantaging those who had been out on strike -- not as an inevitable consequences -- consequence of making replacement but designed to have those fellows remember.
William A. Stuart: No, Your Honor.
Felix Frankfurter: It wasn't the operation -- the inevitable operation of hiring people to replace people on strike and hiring people who would then obtain permanent tenure. That's one of the --
William A. Stuart: As we contend --
Felix Frankfurter: -- typical aspects of a strike, but that has been held not to be, as I understand it, an unfair labor practice.
William A. Stuart: Quite so, Your Honor, and that is precisely what our contention is here, that this clause to be added to the contract and which was -- unilaterally effectuate it and then the union then agreed to it, was no more than a regulation of the inevitable consequences of the fact --
Felix Frankfurter: Are you -- I beg your pardon.
William A. Stuart: -- no more than a recognition and a confirmation of the inevitable consequences of the fact that these employees came back to work from a strike when jobs were available, and thereby, became of their own right entitled to permanent tenure and that's what they've got. And as a result of that, when the body of strikers came back later, there were later for a fewer permanent jobs than there were employees and made it for these employees who came back last had to take temporary jobs.
Felix Frankfurter: Are you -- are you urging on this Court the proposition that although the Board made a finding that there was this conscious discrimination after the strike was over with a view of inflicting that kind of disadvantage to those who had been on strike that that's what the Board found. Are you urging there was no basis for that finding and no basis for the Court of Appeals in sustaining that finding or finding that finding sufficiently sustained for them to require to be respected, are you -- are you?
William A. Stuart: I am contending that along with some other --
Felix Frankfurter: All right.
William A. Stuart: -- along with some other things, Your Honor.
Harold Burton: But aren't you making the point -- but aren't you making the point that this was in the nature of a reward after the event rather than an inducement before the event?
William A. Stuart: That is -- that is -- no -- no, Your Honor. We're not making that either. The Board contended that this was a reward after the event to the strikers who came back before the -- the body who were ordered back then it was a penalty --
Harold Burton: Everybody agrees -- everybody agrees there wasn't -- not made before they came back.
William A. Stuart: Everyone agrees that nothing was said before they came back. Yes, Your Honor.
William J. Brennan, Jr.: Well, Mr. Stuart, I gather then that you're asking us to say that actually, in legal consequence, what was done here does not differ from a situation in which rather than seven strikers coming in and taking those jobs, you had employed seven new men.
William A. Stuart: Precisely, Your Honor, precisely. And we are saying further that the Court, in placing its decision holding it upon the ground that these employees who trickled back were not approached by the petitioner and were not offered inducements to come back and -- but on the contrary came back voluntarily that they therefore -- they thereby proved that it wasn't necessary for the company to give them this permanent tenure in order to get them, and therefore they weren't entitled to it.
Hugo L. Black: May I say that -- I -- I'd like to find out if I'm wrong about it. It seems to me that you're asking the Court to say that the trial examiner, the Board and the Circuit Court of Appeals were wrong in approving this finding which Judge Dobie states on page 20C. The Board found an agreement with the trial examiner that Olin changed its seniority policy after the strike so as to give preference to employees who had worked during the strike in order to discipline the employees adhering to the strike, went at the very end and that Olin's action in this regard and its further action pursuant to its new policy of laying off all seven employees would be violative of Section 8 (a) (3). And how could we hold the view unless we disagree with the findings of the trial examiner, findings of the Board as approved by the Court of Appeals?
William A. Stuart: Well, Your Honor, I think you can -- I think you can hold with me without doing more than holding that this employer would have -- have been guilty of strike breaking if it had done the same which was the sole thing the Court said they didn't do in order to win a favorable decision in the case. And let me -- let --
Hugo L. Black: But what do you do about this finding? Is this finding right or wrong?
William A. Stuart: The finding -- the finding is wrong, Your Honor, and that it --
Hugo L. Black: Why, because it's not supported by the facts?
William A. Stuart: Not supported by the evidence, sir.
Hugo L. Black: Not supported by the evidence. So what you're presenting here, we overturn the findings made by the trial examiner, approved by the Board, and then approved by the Court of Appeals. We have to, don't we, if we -- in order to get away from that finding.
William A. Stuart: Well, Your Honor, I -- I don't think it's quite as simple as that. Your -- Your Honor is going to have before you the question of the applicability of the Mackay decision of this Court. That's the whole thing here. That's the -- that's the doctrine on which both parties rely here. And if Mackay is interpreted as we contend then that's automatically not to set finding out, it's a matter of law more than a matter of fact.
William J. Brennan, Jr.: Well, would you tell me this, Mr. Stuart, if I may refer you back to what Mr. Justice Black was just reading for you. Does Mackay hold anything like this if this had read so as to give preference to new employees hired during the strike in order to discipline employees adhering to the strike?D oes Mackay say anything like that?
William A. Stuart: Let me -- let me just read, Your Honor, exactly what Mackay does say. Of course, that -- it's in a very short --
Hugo L. Black: Page 28?
William A. Stuart: -- brief on pages 18 and 19 in our brief -- 19 and 20, Your Honor. Nor was it an unfair labor practice to replace the striking employees without us and enough to carry on the business.
William J. Brennan, Jr.: Yes, well now, but look at the difference. The words I substitute in the sentence that Mr. Justice Black read to you would make a breach you see, so as to give a -- give preference to employees hired during the strike, not in order to carry on the business but according to the finding of the Board, in order to discipline employees adhering to the strike. That was the Board's finding.
William A. Stuart: That was the Board's finding.
William J. Brennan, Jr.: Well now, now if -- how -- how do you get over that? How --
William A. Stuart: Well --
William J. Brennan, Jr.: Other than as Mr. Justice Black suggests, so you're asking us now to say that the evidence didn't support that finding.
William A. Stuart: We got over it in this way, Your Honor. The Board started, they started these whole proceeding now -- they -- they started the deal at the end of the strike and there's the -- after everybody was back. And they said, "Then after the strike was over, you came here to the bargaining conference with this proposal and you put it unilaterally into effect after the strike was over when we declined to a great turn." But now, what the Board didn't do and as we say should have done was to -- regarded back to the time during the strike and should have consulted the Mackay case or the Mackay doctrine as applying then when these men came back. When they came back, they had the right. They were employees and they had the right to reinstatement and permanent tenure, they had that right. And if the employer had declined to receive them in permanent tenure, the employee -- the employer would probably -- probably have been the object of an unfair labor practice proceeding. As a matter of law, they had that right. Now the Board, instead of starting now where it should have started, it started at a much later period when what was done merely confirms the legal effects of what had happened while the strike was going on.
William J. Brennan, Jr.: But I think as I -- am I correct --
William A. Stuart: And it's a matter of law.
William J. Brennan, Jr.: Am I correct that Mackay in point of time concern the right of the employer, in other words, the charge was that he had replaced strikers in an effort to carry on this business and that that was an unfair labor practice. And all this Court said was that was not.
William A. Stuart: That's right.
William J. Brennan, Jr.: Now, your view in your case however, as I understand it, the action at which -- your action at which the complaint was directed is your action as subsequent to the strike in relation to the -- according at that time as the Board found at least for the purpose of punishing these other strikers who didn't come back.
William A. Stuart: In relation to, Your Honor, what happened after the strike and without any relation at all to what happened during the strike.
Hugo L. Black: What difference does that make? Is -- can -- can an unfair labor practice be excused by saying it occurred after a strike? In other words, suppose -- or -- or you would come here and admit to us just what's in here and say "Yes, we setup this program. It was after the strike, however. And we did it for the purpose of disciplining these men on the strike and to keep them from doing that in the future." Would that be a violation of the Act?
William A. Stuart: Well, Your Honor --
Hugo L. Black: If you say -- if -- suppose you said that --
William A. Stuart: We --
Hugo L. Black: -- would that be a violation of the Act?
William A. Stuart: Well, if we did it, but we didn't do it.
Hugo L. Black: That's right and they say you did.
William A. Stuart: Well, they -- they draw that as more to legal conclusion on a closed conclusion of facts, Your Honor.
Hugo L. Black: Judge Dobie didn't so treat it.
William A. Stuart: Well, I -- I want to have a little something to say about Judge Dobie's decision in a moment. But I -- I do want to -- I do want to get this clear. As we contend what was done after the strike in putting into black and white this provision as to the two classes -- in case of -- of subsequent layoffs. That did no more than recognize what had happened as a necessary legal consequence during the strike. We're -- we're standing on law here and not on the facts, Your Honor, and I -- I want to go away from the Board's -- from the idea that that is a Board that -- that finding of the Board is a finding of fact upon any basis that the Board can stand upon.
Felix Frankfurter: Mr. Stuart --
William A. Stuart: But that's our position.
Felix Frankfurter: Mr. Stuart, there was another part of the decision in the Mackay case. Namely, the Court found that the Board was justified in finding that in taking back the people, they discriminated against those who were the most active in the union activity.
William A. Stuart: That's right, Your Honor.
Felix Frankfurter: Now, as I understand this decision and regarding this on this, that's what the Board found in this case with reference to the layoff, references of seniority rights. Is that --
William A. Stuart: Seniority rights.
Felix Frankfurter: Well, that's the seniority right. It's found that in fact, it found -- I don't see how a discrimination is other than an ascertainment of fact whether you discriminate or not, must be an ascertainment of -- call it what you will, a conclusion by the Board on the record that they aimed at people who are particularly aggressive in the strike. Now, I can well understand, of course I can understand you to maintain that there isn't a shred of support for any such conclusion.
William A. Stuart: There's no such contention.
Felix Frankfurter: So that's an -- that's an arbitrary, then it becomes no finding, it becomes a dogmatic assertion. Is that your position?
William A. Stuart: Yes, Your Honor, and there's no contention on the part of the -- of the Board at all that this was aimed at people who -- who are particularly active in the strike, none at all. As a matter of fact, all the men who had the greater length of service got back. And this made it for just caught to pay a land. All of them but these seven had so little length of service that even under the Board's construction, they still didn't get in. But the -- the -- it was just these seven who were far down the list, anyhow, who were not outranked by the lower seven of those who were -- who were kept. But I -- I do -- I don't want to urge this upon the Court that the Board in finding that there was a -- in effect that there was a violation of seniority here that there was a discrimination against seniority. We contend this stronger as we can that the Board introduced in the case a very confusing issue there because there was no seniority at all, it was not in existence, and these men had no seniority. And to say that the employer departed from its former seniority policy is merely to say that it departed from the provisions of the collective agreement to which had been enforced before it expire. And I --
William J. Brennan, Jr.: Then tell me, Mr. Stuart, if there had been no strike and the Union and the company had not been able to agree on a renewal agreement. During the hiatus before they agreed on and after the termination date, would there had been no applicable seniority policy on that plant?
William A. Stuart: We cite the authorities, if Your Honor please. In the brief, I think not. And in fact the -- the trial examiner in this case made that point very neatly. When the Board attorney was undertaking to say that there should be some regard to the seniority provisions, the old contract even though it had had expired. And the trial examiner said, "Well, you went on a strike didn't you?" And the Board attorney said, "Yes, but the contract had expired." The trial examiner said, "Yes, that's my point." In other words, there was a -- there was a -- a no-strike provision on this contract. Unless the contract had expired, of course, there couldn't have been any strike and none of this would have happened. And we do contend most strongly that there was no seniority in effect and there are a number of cases cited in the -- in the brief. Now, the whole -- the whole point of the case --
William J. Brennan, Jr.: May I ask this, Mr. Stuart? Sorry to interrupt so often. Has there -- was there any formal announcement at anytime by this employer that the -- in addition or when the contract expired by its terms, was anything said after that that the old contract seniority shall not apply or otherwise any --
William A. Stuart: Nothing to say.
William J. Brennan, Jr.: Nothing of that kind.
William A. Stuart: Nothing to say.
William J. Brennan, Jr.: Do you rely on the mere fact of termination of the agreement as importing --
William A. Stuart: (Voice Overlap) --
William J. Brennan, Jr.: -- that thereafter, there was no seniority?
William A. Stuart: The termination of the agreement as emphasized by the fact that the employees promptly went on a strike thereafter, against -- what would have been against the no-strike clause in the contract.
Hugo L. Black: You referred to the trial examiner. Didn't he specifically and pointedly find that this discharge laid off seven employees discriminatorily pursuant to his discriminatory seniority policy put into effect?
William A. Stuart: Yes. And he -- he was just wrong, Your Honor. As -- as we contend, there wasn't any seniority. And he lost sight of the fact that earlier, he -- he had recognized the fact that there -- there was nothing under the contract in effect.
William O. Douglas: Before you came in here?
William A. Stuart: Now, I'd like to -- I'd like just to summarize this point which really is the whole point of the case as we see it. And that is that here were returning strikers who applied for reinstatement. There were numerous jobs available at the time, they were entitled to reinstatement and permanent tenure and they got it. Now, when they were in there, they were there. They had a position that they were entitled to and were entitled to defend against the other strikers who did -- who had not returned under the very clear holding of the Mackay decision as -- as we understand. The -- the Mackay case says, he is not bound, the employer, he is not bound to destroy -- to discharge those higher, to fill the places of strikers upon the election of the latter to resume their employment in order to create places for them. Well, now that's what the Board has done here. It has ordered this employer to lay off these seven men who obtained permanent tenure by coming back, presenting themselves and getting it while there were ample jobs available. The Board has ordered the employer to lay them off in order to make places for strikers who returned later, and for whom there were not available jobs. Now, that -- that is what the case comes down to and irrespective of the finding of fact which amounts to an inference as to the employer's motivation in connection with the time at which the proposal to the union was made, irrespective of that. We contend that as a matter of law, these seven employees along with a number of others who returned before the strike was called off by the Unions that they acquired a status which they are entitled to hold.
Felix Frankfurter: When you say irrespective of the finding of motivation, how can you -- how can you put that aside to be irrelevant? That's what discrimination involves normally, motive. I mean that's what -- that's what discrimination means that you prefer between -- that's your purpose or motive or call it what you will.
William A. Stuart: Your Honor, I am speaking of the motivation at the material and critical time. There could not have been any such motivation as the Board found at the time when these men presented themselves.
Felix Frankfurter: I understand -- I understand the argument that the Board was just entitled to find it as a matter of law, I understand that.
William A. Stuart: The Board found this as to something that happened long afterwards. And they didn't go back to the time when the motivation would have counted, that's our point, when the motivation applied. And the employer could have had only one motivation when these men presented themselves. And that was that it was his obligation to admit them to the plant and give them -- put them back to reinstatement in permanent tenure employment. And that was the decisive time -- and that's when the status was fixed. Now that's our contention on what -- whatever the Board may have found as to the things that happened afterward, can't relate back to that, and our inference based on -- based on this black and white confirmation of a legal status which arose while the strike was going, can't -- can't affect that as we contend. Now, the -- I want to -- I want to say something here about the Court's decision because as the point file which I think is -- is quite well remarkable. The Board and the Court found that this was a discriminatory interference with the exercise of the right to strike by rewarding the strikers who returned before for abandoning the strike and thereby penalizing the others for continuing to stay at it. Now, that decision, if the Court will examine it on this point, is on extraordinarily narrow ground. And that is this that the promise of permanent tenure was not made to these strikers before they returned from the strike and as an inducement to return. On page 30, here is what the Court said, "With a strike in progress, the primary concern of the employer is to keep his plant in operation. It is then proper for an employer who might be unable to procure replacement save upon a promise of permanent tenure, to promise such tenure to the replacements." Now, that is evidently saying that if the employer had done that here, the decision would have been in his favor. But says the Court, "When the strike is over, when the plant is in operation, then the imposition of the superseniority policy in favor of the replacements and against the strikers is quite a different matter." The whole thing is on that now and they've had it. That is the case before us. There is nothing in the record here to show that at the time of Olin secured these replacements for the strikers, Olin made any promise of permanent tenure to these replacements. And within our brief, the Mackay case, as condoning this conduct on the part of Olin. Now, the Board -- the Board's conclusion was the same. That simply follows the conclusion of the Board. If their whole case turns from the fact that it wasn't necessary in the situation that existed in the strike, it wasn't necessary for the employer to promise these strikers any inducement in order to get him to come back. Since he came back voluntarily and the employer was not under the -- the pressure in endeavoring to keep its plant operating to approach them and offer them inducements to come, that therefore, the decision is against the employer. Whereas if the employer had done that, it would have been -- it would have been the employers' favor. Now, we say and the cases that was cited in the brief that the employer couldn't possibly have done that without being open to a charge of strike breaking and we understand the Board to concede that in its brief. Now, the -- the order of the Board on page 41 of the transcript says this, and I come back again to that matter of seniority and departure from the former seniority policy which the Board found. Item C --
Hugo L. Black: Where are you reading?
William A. Stuart: Page 41 of the transcript, item C.
Hugo L. Black: Page 41, on the first part.
William A. Stuart: Yes, Your Honor. C, rescind forthwith his discriminatory seniority policy announced on April 2nd, 1954 and effectuated on April 9, 1954 and restore all employees affected thereby to the seniority they would have enjoyed, absence such discriminatory policy. Now, that is the prime example of the confusion which the Board introduced in the -- in the case by assuming the existence of seniority rights in these employees when they didn't exist. Now that order, as we -- as we see it, certainly would be very difficult to see how that order could possibly be enforced. What in the world is the seniority they would have enjoyed, absence to such discriminatory policies -- policy, nobody can say. The Act doesn't create any seniority. The -- the contract had expired. They -- they didn't enjoy any seniority. And that -- that is just an illustration as -- as we contend of the confusion in -- into which the Board was led by assuming that there was any distinction between these employees on the ground of length of service. There weren't any. The Board -- the -- the employer might very well have taken any number of different tests or basis for deciding who's going to -- who's going to be retained and who's going to be laid off. He wasn't limited by the law. He might have laid them off on a basis of skill and efficiency or of any number of things. But he actually did use was what the Board is complaining about here. But our contention is that that issue has no place in the case. There was no seniority, there's no seniority policy, and there were no seniority rights which these seven could call upon the -- could successfully call upon the Board to enforce. Now, this -- this case has the same question exactly. It was before the Ninth Circuit in the -- in the Potlatch case. And the Ninth Circuit decided in accordance with the contentions which we are making here. In fact, the written proposal which the Court has denounced in this case was almost word for word the same as it was in the Potlatch case.
Harold Burton: Do you claim a direct conflict in the Potlatch case in this decision below?
William A. Stuart: Yes, Your Honor, and I understand the Board to concede that practically.
Hugo L. Black: What were the findings in the Potlatch case?
William A. Stuart: The findings (Voice Overlap) --
Hugo L. Black: How could there be a -- how could there be a conflict unless it's on -- it's when -- when --
Earl Warren: Yes.
Hugo L. Black: -- so far as the evidence is concerned to support the findings.
William A. Stuart: The situation on the Potlatch case was in all essential particular as the same as in this case, Your Honor.
Hugo L. Black: How could it be the same? The question here is, they've found, that your people did this for the purpose of discriminating against these people and put in the policy with any such purpose.
William A. Stuart: They've found that in Potlatch too, Your Honor and then the Court overturned it.
Hugo L. Black: They overturned your findings but that's on the evidence before them.
William A. Stuart: No sir.
Hugo L. Black: This is quite different evidence, how could there be a conflict?
William A. Stuart: There's practically no difference in the evidence, Your Honor. The whole thing went along just exactly the same way. Precisely, the only difference was, and I don't think that's a material difference at all that there were some new employees as replacements who came in as well as some returning strikers. But the announcement was made by the employer in both cases after the strike had failed. It was made at the beginning of the first bargaining conference. It's true that in Potlatch, the strike was settled at the bargaining conferences and this case was not settled but the announcement we made at exactly the same time, they were at the beginning of the bargaining conferences and that's where they argued to fail and after the plant was going on in collaboration.
William J. Brennan, Jr.: Well -- but I -- I guess this is an actual -- I'm looking at the Court of Appeals' opinion at page 30 in which this is quoted from Potlatch. "In the instant case, therefore, the discrimination between replacements and strikers is not an unfair labor practice, it's quite a tendency discouraging an activity because the benefit conferred upon the replacements is a benefit reasonably appropriate for the employer to confer in attempting to protect the continuous business and so forth."
William A. Stuart: Yes.
William J. Brennan, Jr.: Isn't that a very different finding in the one that was found here that this finding being, that what was done was an order to discipline employees?
William A. Stuart: Yes, Your Honor. Well, that --
William J. Brennan, Jr.: Now, what about this Mr. Stuart, is this an accurate summarization of at least one fact in the record that Olin's -- I'm looking at page 29. "Olin's attorney, Stull, admitted in one of the conferences with Union representative that Olin's insistence on that superseniority plan was motivated by Olin's preference for the employees who had been loyal to Olin by helping to break the strike, and also Olin's concern that the plant be not shutdown again." Is that accurate?
William A. Stuart: That's accurate but the inference is erroneous, Your Honor.
William J. Brennan, Jr.: Well, I'm –- I'm trying to --
William A. Stuart: Well, let me --
William J. Brennan, Jr.: It seem to me that there must have been rather -- if that's accurate, that law of it or if its standing alone support this finding that the whole purpose of what was done was in order to discipline employees adhering to the strike.
William A. Stuart: Let me explain this, Your Honor, which will account for the answer I gave Your Honor. The Court there was assuming that the plant had been shutdown by the strike, which it had not, and was assuming that Mr. Stull was talking about its being shutdown by future strike which it was not. If -- when Your Honor considers the facts, you will find that this was a trial run of this plant. The list it was going to terminate was regardless -- regarding among the plant and was a list to this employer on the list which was terminated the following year. And the production record which was made during this period, this very critical period, it was going to determine whether at least it was going to be renewed or whether all these employees would be out of the job. Now, that was the plant but as the -- the point about the plant being shutdown. And if the contract, if Your Honor would look at the -- would -- would look at the exhibit and read that in this context, you will see that what Mr. Stull was talking about was the possibility that unless men were loyal to the job and the plant operated at -- at full blast and effectively that the plant wouldn't shutdown because the top measure would renew the list the following year.
Hugo L. Black: Do you think our Universal Camera decision has any relation to this case?
William A. Stuart: Well, Your Honor, I think it has.
Hugo L. Black: In that case, we've indicated pretty strongly, doesn't it, that the Court of Appeals starts first responsibility and only in the most exceptional circumstances when we attempt to read all the evidence to overturn the finding?
William A. Stuart: Yes, Your Honor. I think also in that case, however, you indicated pretty strongly that under Taft-Hartley, you were not bound in the same way that you had formerly been by the Board's findings. And what the Court has done here has been to have more, as a matter of law than as a matter of fact as it -- as we contend. And now, if the Court please, I should like to -- I have only a few minutes left on my time, I should like to reserve it for rebuttal.
Earl Warren: Just one moment please. The Court as of the opinion that the judgment in this case must be affirmed and, counsel, it will not be necessary for you to argue. We'll recess now.