Earl Warren: Number 7, National Labor Relations Board, Petitioner, versus John Brown, et al. Mr. Come.
Norton J. Come: Mr. Chief Justice, may it please the Court. This case is here on certiorari to the Tenth Circuit to review the judgment of that Court, Chief Justice -- Judge Murrah dissenting, denying enforcement of the Board's order against respondents who are retail food stores in Carlsbad, New Mexico. This case and Number 255 which follows it, involves the application of this Court's decision in the Buffalo Linen case which was decided in 1957. In the Buffalo Linen case, as I will explain in greater detail in a moment, the Board sustained the -- this Court sustained the Board's conclusion that the nonstruck members of a multiemployer bargaining unit were privileged when one of their members was struck during contract negotiations to lockout or temporarily lay off their employees in order to protect the integrity of the multiemployer bargaining unit against the threat of the whipsaw strike that this tactic which said in motion. The question presented in this case is whether the Board reasonably concluded that the nonstruck of members exceeded the limits of defense of the multiemployer unit and thereby committed an unfair labor practice when after laying off their regular employees in response to a strike against one of their members, they resumed the operations not with their regular employees who were ready and willing to work but with temporary replacements for their regular employees. Number 255 which follows does not involve a multiemployer unit. The question there is whether a single employer is privileged even though a strike is not imminent to lockout or temporarily lay-off his employees in order to advance his bargaining position. That question was left opened by the Court in the Buffalo Linen case. Now, to turn to the facts of this case, which is as I said before, a multiemployer of bargaining unit situation, the respondents here are members of a multiemployer unit of retail food stores which has for several years, bargained on a group basis with the retail clerks union. In March of 1960, the parties reached a new pass on a new contract and the union called a strike against one of the stores, Food Jet.
Arthur J. Goldberg: So far, this is like Buffalo Linen?
Norton J. Come: So far, this is like Buffalo Linen. The four other employers in the unit who operated six stores, treating the strike against Food Jet as a strike against them responded by sending their employees home when they reported to work telling them that they were laid off because of the strike against Food Jet. So far, it's still like Buffalo Linen. The difference is this, at this point, Food Jet hired replacements for the strikers which they had a right to do.
William J. Brennan, Jr.: I know you used the word “replacement” also in the brief, but do I understand that those folks who were hired were told that they were employed only for the duration of the strike and that the strikers will be reemployed when the strike ended?
Norton J. Come: Yes, Your Honor I --
William J. Brennan, Jr.: You know my question is --
Norton J. Come: Yes, Your Honor.
William J. Brennan, Jr.: -- on that set of facts. A replacement at least in the sense of permanent replacement started -- quite the words?
Norton J. Come: Well, I prefer with the adjective temporary replacements and I -- by the use of the word “temporary” as I've --
William J. Brennan, Jr.: Does that have any significance incidentally, do you think? Is that fact that the word temporarily replacements, have any significance here?
Norton J. Come: In the Board's view, that does not that although temporaries are less horrendous than permanents, still the use of temporaries in these circumstances would not be justified.
Byron R. White: Well, Mr. Come, when Food Jet reopened if whatever follows -- with some replacement was temporary or permanent -- did it opened that full blast -- was it trying to also run at store with some of its other employee -- it didn't replace everyone, did it?
Norton J. Come: As nearly as the record shows, Your Honor, well, it hired a fair complement of temporaries; I don't think that the record shows that exactly how -- how full it was. The record reference is there as I recall them, record of page 40 and at 39.
Byron R. White: Well, this does have something to do with the question, doesn't it?
Norton J. Come: Well, under the right -- under the Mackay decision, Food Jet being a struck employer had a right to try to operate during the strike.
Byron R. White: Yes, but the extent to which it actually operated during the strike has got something to do with what the other employers were committed to do, doesn't it or not? I guess the Board's position is that it isn't, was it?
Norton J. Come: Well, it does not to the extent of permitting them to substitute for the regular employees. Under the Board's position, they might want to use their regular employees only on a reduced basis in order to keep pace with Food Jet. But whether Food Jet opened fully or only partially, in the Board's view that would not privilege the other stores in using substitutes for their regular employees.
William J. Brennan, Jr.: Even temporary employee?
Norton J. Come: Even temporaries.
William J. Brennan, Jr.: And in this instance, since they were temporary (Voice Overlap) --
Norton J. Come: They were -- they were temporary as I was going to get to the nonstruck employers when Food Jet resumed operations likewise resumed operations. They continued to lay-off against their -- or lockout against their regular employees and they functioned with managerial personnel, relatives of management, personnel manager, jurial and clerical that they brought in from stores outside of the bargaining unit and also with some temporary boys that they hired locally. They were temporary in the sense as you pointed out Mr. Justice Brennan, it was made perfectly clear that at the end of the strike, the regular employees would be called back and they were in fact called back.
Arthur J. Goldberg: (Inaudible)
Norton J. Come: I think so but I would like to get to Buffalo Linen and what we understand to be the rationale behind it before I -- if I may come back to your question Mr. Justice Goldberg. Before I do that, I'd like to say that and I'm going to try to center my argument around 8 (a) (1) because I think that if I come in on 8 (a) (1), I'm also in under 8 (a) (3) or it may not be necessary to reach it as the Court did brought up in Sims case. 8 (a) (1) as the Court knows, makes an unfair labor practice to interfere with restraint or coerce employees in the exercise of rights guaranteed in Section 7. In determining whether there is a violation of Section 8 (a) (1), we know the fact that there -- that employer action tends to interfere with employee organizational activity is often times only the initial inquiry where the employer as in this case was not motivated by any anti-union animus. It becomes necessary to balance the competing interest of the employer. Now, this Court has recognized that that is so and that that test is a delicate one and that it's primarily the Board's task in the first instance and if its accommodation is reasonable even though some other accommodation might also be reasonable, the Board's accommodation is entitled to stand. Now, the two most recent cases that illustrate that in this Court are the most recent case, the Erie Resistor case. You can compare that with the Mackay case. Mackay said that an employer in an economic strike had a right in order to operate to replace the strikers even though, that tended to interfere which strike activity unbalance the employer's interest (Voice Overlap) privilege. Yes?
William J. Brennan, Jr.: The fact is not there on the principle but there is this difference isn't it with temporary employee that has simply less of an impact upon the striking or lockout employees and their future then did superseniority in the Erie Resistor --
Norton J. Come: There is no question that it had less of an impact in superseniority but let me --
Byron R. White: I thought you'd answer me that nevertheless we've already indicated that the Board has a really wide latitude to draw -- strike these balances and that the (Voice Overlap) --
Norton J. Come: The question is whether that (Voice Overlap) --
Byron R. White: (Voice Overlap) -- that not much of a distinction between.
Norton J. Come: Well, the question is whether the Board could reasonably say that this was more a step beyond what you need to defend the integrity of the multiemployer unit which was sanction in Buffalo Linen which I am now going to get to.
Byron R. White: I suppose on the same basis though you would argue, you'd say that on this fact, Food Jet is going to stay open and the other respondents couldn't hold down at all.
Norton J. Come: No, I'm not going to say that Your Honor. Under the Board's view --
Byron R. White: You mean that -- you mean to say that Food Jet staying open isn't enough to get out of Buffalo Linen?
Norton J. Come: No. Buffalo Linen as you will recall proceeds on this promise that when you strike one member of a multiemployer bargaining unit, what you are seeking to do -- what the union seeks to do is to use the pressure of the sales and services of the other stores which remain open to force the struck member to effectuate and in that way, one by one the union breaks off the employers and if this is carried to its logical conclusion, it will atomize the multiemployer bargaining unit.
Byron R. White: This is not what (Inaudible) case is closed. I mean this is -- this is --this is the purpose, this is the real -- this is the real (Voice Overlap) --
Norton J. Come: That --
Byron R. White: -- (Inaudible)
Norton J. Come: That is correct.
Byron R. White: Perhaps the fundamental reason (Inaudible) that the other employer (Inaudible)?
Norton J. Come: Well, I suppose that reasonably, you could balance this in such a way as to conclude that as soon as the -- as Food Jet resumed operations, the other employers had to reopen. However, there is a possibility that even -- if Food Jet does reopen, he maybe reopening in a limping fashion so that the other employers might still find it necessary to stay shutdown in order to avoid the whipsaw starting up again.
Byron R. White: Well, of course you will have to base it with the Food Jet operator solely with the supervisor employee, solely the supervisor standard, then the other employers (Inaudible)?
Norton J. Come: Well, the point is this Your Honor. That there is no question that -- well, Food Jet is in this different position. The employees are struck. They do not want to come to work for him under the existing terms and conditions of employment. If he wants to operate, there is no way in which he can operate other than to hire replacements whether permanent, temporary or otherwise. The employees of the other stores however, are in a different position. They are willing to work under the existing terms and conditions. They are not working simply because the other stores locked them out or laid them out. Now, that lockout or that -- pardon me Your Honor I -- that lockout was privileged in order to defend the multiemployer bargaining unit against destruction. Despite the fact that the layoff prima facie interferes with employee activity and does prima facie would violate 8 (a) (1) nevertheless it is privileged in the interest of protecting the multiemployer unit. There is no question that in an ordinary situation to deny employment to strikers who are willing to come back to work under the existing terms and conditions of employment is the most literal and classic form of discrimination. Now, the question is and this was the question that the Board had to face, whether it was necessary to permit the nonstruck stores who laid-off their regular employees whether it was necessary to permit them to have this added weapon which as I indicated in normal situation as a classic, an elementary form of discrimination in order to enable them still to protect and defend the multiemployer bargaining unit against the threat of the whipsaw strike and the --
Byron R. White: I guess it is wholly irrelevant from the -- what is the availability of the other employee, the employees (Inaudible) is wholly irrelevant if you operate the -- namely the integrity of the multiemployer bargaining unit?
Norton J. Come: Well, if you start with the premise that Buffalo Linen privileges majors that are necessary to defend the unit against the effect of a whipsaw strike and since you are balancing, you privilege no more than it is necessary under the circumstances and it seems to me that it is not wholly irrelevant Your Honor for this reason. When Food Jet shuts down, to be sure, the other stores have to shut down in order to prevent the whipsaw from operating. When Food Jet opens up, the other stores may still have to remain close down because if Food Jet isn't able to open up very much, it is a practical matter that it might be the equivalent of it still remaining down. However, should Food Jet build up enough of head esteem so that even with these replacements, it is doing substantial business? The other employers may find that unless they resumed operations, the whipsaw will start up again. Now, the question is, “How can they put themselves in the same boat as Food Jet? "Now, one way of putting themselves into food -- in the same boat as Food Jet, to be sure is by hiring temporary replacements just as he did. However, that technique as I tried to point out carries with it an added interference with the rights of the employees of these stores. There --
Arthur J. Goldberg: How long can they protect the bargaining unit if the whipsaw continued with the Board's theory was given?
Norton J. Come: They can protect the bargaining unit Your Honor by resuming operations with their regular employees on a reduced basis.
Arthur J. Goldberg: (Inaudible)
Norton J. Come: Well, it only has -- it only has some of its members working.
Arthur J. Goldberg: (Inaudible)
Norton J. Come: Now, granted that there are different ways of drawing the accommodation here. It's here -- I submit that the question is whether the Board was wholly unreasonable in striking the balance that it did. Now --
Arthur J. Goldberg: How do I expect (Inaudible) the rationality of the economic (Inaudible) are not documented as the Erie. To make it possible, they set up with the underlying agreement.
Norton J. Come: Yes, Your Honor. That is our position. We think that Buffalo Linen recognizes that this is in the area of balancing and that the basic error of the court below is really in – as Judge Murrah pointed out in the dissent is in substituting each judgment for the judgment of the Board. I would be the last to deny that you could balance this interest in another way that it would might be equally reasonable. But so long as the Board's balance is reasonable as we understand Buffalo Linen and of the other, the decisions of this Court, the Board's balance is entitled to stand.
William J. Brennan, Jr.: Without the interrogation of insurance agents?
Norton J. Come: No, Your Honor. We do not. I will have more to say about Insurance Agents in the next case but --
William J. Brennan, Jr.: But if they still (Voice Overlap)
Norton J. Come: Yes, yes but I was going to answer it though.
William J. Brennan, Jr.: Yes.
Norton J. Come: We believe, that in Insurance Agents, the question was whether or not the Board had the power to set in judgment on economic weapons in assessing the question as to whether or not it was a failure to bargain in good faith. The Court repeatedly emphasized and I believe Your Honor you wrote both opinions for the Court that in Insurance Agents, the Board was seeking to support its decision solely on the basis of 8 (b) (3) which was the analog of 8 (a) (5). The Court recognized by citing twice in Insurance Agents, the Buffalo Linen decision that the problem was different where the question was whether these weapons unduly interfered with the employee rights under the act --
Byron R. White: Under 8 (a) (1)?
Norton J. Come: Under 8 (a) (1). And that is the problem that we have in this case and that is the problem which we have in the case to follow. For those reasons --
Byron R. White: Well, I gather --
Norton J. Come: Yes.
Byron R. White: -- do I understand then that the Board thinks that Buffalo Linen still fit the law in the sense -- I mean, from their stand point that at the same it came up again, they would resolve the way they did, make the judgment and the balance the way they did in Buffalo Linen?
Norton J. Come: Yes Your Honor. The Board --
William J. Brennan, Jr.: Or if you didn't, I would suppose before you would be here arguing if for example we have Buffalo Linen on its precise facts and the Board struck the balance differently today and even at that time, I suppose you'd be here arguing I know but that's within what the Court has recognized to be the Board power to accommodate these problems and again, subject only limited review would be required to sustain that.
Norton J. Come: Well, as you --
William J. Brennan, Jr.: They expect us to do at least.
Norton J. Come: I'm happy. I don't have that passed, however, as the (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap) maybe you do.
Norton J. Come: Well, we have -- for the reason that I've indicated, I've tried to point out that the situation here is different, factually different. Now, where you're balancing, I submit that shadings in facts might very well call for a different balance because as the Court recognized it's a very, very delicate mechanism. The Board here was split three-two. That's as close as you can get. The Court of Appeals was split two-one, I submit that is an indication that we are in an area where reasonable men could differ and that the Board's judgment is a reasonable one and is entitled to stand. Before I sit down, I should like to point that petitioner in its brief, it's the last point, raises some question as to the scope of the Board's order. I believe to submit that they are barred by Section 10 (a) of the Act which says that no objection not raise before the Board can be asserted from raising that contention because as I read the -- there are exceptions which are set forth at Record 21 -- 20 to 21. Before the board, they merely attacked the order on the ground that the evidence and the Board was not sufficient and the -- to support the Board's unfair labor practices as a matter of law they did not attack the breadth of the order. The point they are making here in now is that the Board's order have provides for reinstatement that the Board should have limited reinstate -- that the Board order provides a reinstatement of all the regular employees of the store who were laid off they say, “It should only be those who are actually replaced.” Well, that contention, we submit, is barred by 10 (e). In any event, if it is open, it's something for the subsequent compliance proceeding and it is not before the Court at this time.
Byron R. White: Presume, I'd say, the Board's order doesn't need -- their opinion doesn't leave any room of the -- the way I read it, the contention that you now make that other respondents may partially close down to key their operations to those of the struck employer. You can't get anything like that under the Board's opinion.
Norton J. Come: Well, we think that it --
Byron R. White: I think that's been argued later?
Norton J. Come: It could be it, it could well be. However, the Board's position is perfectly clear certainly in the light of the Kroger decision which we have set forth in our brief to be sure that was subsequent to this case. But I think that what I'm saying is the implicit in the Board's present decision although it is spelled out in greater detail in the corporate case.
Arthur J. Goldberg: (Inaudible)
Norton J. Come: Well, the Board is not trying to second guess the employer. It leaves it in the hands of the employer to make the judgment and as long as he acts on the basis of his own best judgment and objective criteria without regard the union membership considerations, I don't think that the –-
Arthur J. Goldberg: (Inaudible)
Norton J. Come: Well, with the difference, however, that they were continuing the discrimination against their regular employees who are ready and willing to come to work. Thank you.
Earl Warren: Mr. Keller.
William L. Keller: If it please the Court. Respondents submit that in this case, there are three basic issues before the Court. The first issue is whether the Board has exceed the authority delegated to it by Congress in picking and choosing the economic means or weapons that were available to parties during a strike in furtherance of contract demands such action being taken by the respondents to protect that their legitimate business interest and solidarity of the bargaining unit. We submit that if the answer to this question is in the negative but the question to be determined is whether the Board properly balanced the conflicting interest between the respondents and the union.
William J. Brennan, Jr.: Well then how -- how far can judges go in assessing whether they did or didn't properly balanced, if we get to that first?
William L. Keller: Well, I think we -- we'll reach that point because we will point out in our argument, respondents, during the course of the hearing, tried to introduce evidence of economic necessity to show that it was mandatory that they continued operations and we were not permitted that opportunity. We were told that it didn't make any difference of his economic catastrophe that the evidence wouldn't be admissible. If the Court finds that the respondents have engaged in unfair labor practices then we submit the question remains as to the scope of the Board's order as it relates to back pay. The Board's order would require back pay to all employees in the bargaining unit, locked out, notwithstanding the fact that the best to limited operations by the respondents during the period of the strike and lockout. And that such an order is onerous, unfair and then it would require additional financial loss to the respondents and in addition to the loss that did suffer during the strike.
William J. Brennan, Jr.: Mr. Keller, is there a -- is that point you made revealed in this record that you were -- didn't have an opportunity to present your case?
William L. Keller: That's in the record, yes.
William J. Brennan, Jr.: Well, could you give me a citation on that, I don't want to waste your time now but it is in there.
William L. Keller: It's in there.
William J. Brennan, Jr.: Have you made a point of it in your brief (Voice Overlap)?
William L. Keller: I may point out on the brief --
William J. Brennan, Jr.: Alright.
William L. Keller: -- but that was the ruling of the trial examiner. We raise it before the Board and the Board didn't think it was very significant and the response of the counsel for the Board's argument that we fail to raise the question of back pay. We submit that that question was raised in exceptions we filed with the Board. As the brief show, we're here concern with the whipsaw strike by union against a multiemployer bargaining unit with one member of the unit actually being picketed. The facts are they're here following a bargaining impact the union struck the smallest member of the bargaining unit and the other respondents lockout their employees who were members of the bargaining unit, enabling their employees who were not members of the bargaining unit to continue to work. Thereafter, each respondent continued to operate their respective business on an individual basis until such time the strike was settled.
William J. Brennan, Jr.: Well, each did hire outsiders so to speak?
William L. Keller: No Sir.
William J. Brennan, Jr.: None did?
William L. Keller: I didn't say “none”, you said each.
William J. Brennan, Jr.: Oh, I got it.
William L. Keller: I think the record will show that two respondents hired no temporary replacements and that most, all respondents, or the remaining two, hired maybe some place between one and four temporary replacements. The work was performed during the strike and lockout principally by managerial employees, wives of managerial employees, wives of the owners, relatives of the owners --
William J. Brennan, Jr.: Now, wives of managerial employees, isn't that regular employee was it?
William L. Keller: We have one or two in there that have performed some part-time services for the respondents.
William J. Brennan, Jr.: But otherwise wouldn't the wives should be outside to work for it?
William L. Keller: Our contention is that we would not concern a big temporary replacement if they were helping their husbands or the owners of the business protect their business interest.
Hugo L. Black: Yeah, but in a domestic union?
William L. Keller: I beg you pardon?
Hugo L. Black: They haven't been in a domestic union.
William L. Keller: That's right.
Hugo L. Black: To get it on.
William L. Keller: That's right. The fact of the matter is that there were very, very few temporary replacements utilized in this case.
Arthur J. Goldberg: Well what about the Safeway store?
William L. Keller: Well, the exception Safeway stores, they're small respondent grocers in Carlsbad, New Mexico.
Arthur J. Goldberg: (Inaudible)
William L. Keller: The record does not show that sir.
Arthur J. Goldberg: (Inaudible)
William L. Keller: I think if I recall correctly that Food Jet of course was the smallest that operation from the nature of drive-in, it had an owner and his wife and maybe two or three clerk. Brown Food, it's a sort of family operation in addition to which I think they had approximately 10 employees. Thriftway had three stores, all relatively small. I would estimate it 10 to 15 -- 10 to 12 employees per store and the remaining respondent Cashway added store in Carlsbad, New Mexico had -- they just made 10 to 12 employee. They were all relatively small grocery operations.
Arthur J. Goldberg: (Inaudible)
William L. Keller: That's correct Sir.
Arthur J. Goldberg: (Inaudible)
William L. Keller: That's correct sir. As a matter of fact that the time of the initial lockout, the employees were specifically told that they wouldn't be return do their job to find the completion of a strike and lockout. And those receiving fringed benefits continued to receive their fringed benefits during the period of the strike and lockout and some even took their vacations.
Arthur J. Goldberg: (Inaudible)
William L. Keller: That's correct. In this case, during the negotiations when the respondents were confronted with the possibility of whipsaw strike, they advice the union and its members that if such strike occurred that they would consider it to be a strike against all respondent members the multiemployer bargaining unit. In this case, it is of course the gravamen of the complaint that some use was made of temporary replacements. The forged brief states that under these circumstances, the respondents could've done one of two things; number one, they could've pulled up their operations during the period of the strike and lockout. We submit that this is a wholly unacceptable course of action as a realistic matter, it couldn't be pursued. We have a respondents who are sitting on perishable inventories who must necessarily furnish a community of food stuffs and it's simply is not realistic to require them to remain close. The Board's other alternative is that the employers could continue to operate with their regular employees. We would like to examine each of these choices and demonstrate why they did not provide the respondents with an acceptable course of defensive conduct. And we submit in this case that all the action taken was reasonable, was minimal and it was defensive in nature. They were all act designed primarily to protect the integrity of the bargaining unit which this Court said in Buffalo Linen, the respondents have the right to do. Point one, as to the choice that they could have remained close. Here, it's been pointed out the picketed employer, Food Jet, selected to remain open. He would, does enjoy a major competitive advantage resulting in the weakening or this integration of the bargaining unit if the other respondents had had to remain close. In effect, conduct of this nature could permit the union to place the employers any favorite position, thus drawing the employers away from the bargaining unit. This result of course would enable a union to accomplish the very objective of its whipsaw strike. In addition to the loss of business, the employers who remain closed would of course suffer losses as I indicated to their perishable inventories and addition would suffer in all probability, permanent losses of business. As to the Board's choice that the respondents could continue to operate with their regular personnel, this effect would be to cause employers to actually subsidize the strike against themselves. In addition, we submit that the Board's rationale completely overlooks to stop and start nature of the whipsaw strike. Of course, the whipsaw strike has its very objective placing the maximum amount of harassment and maximum amount of inconvenience and a maximum amount of economic loss on the respondents with a minimum amount of inconvenience and a minimum amount of economic loss to the members of the union. If the respondents in this case were forced to continue or to attempt to continue their operations with their regular employees, then this course of conduct would almost to share success of the whipsaw strike. I ask the Court to consider a minute what the effect would be of the start and go or start and stop picketing package would accompany whipsaw strike in a retail grocery operation where the strike could command some stop two, three, four, five, six times a day at peak periods when the store was full of customers when we have merchandise that needed to be unloaded and then on the normal operations. Respondents submit that on the facts of this case, in view of the defensive action that they engaged in that they should be free from the Board's interference in attempting to pick and choose the nature of their response from the pressures of the whipsaw strike. As this Court held in Insurance Agents, it is outside the scope of the authority delegated to the Board by Congress to dictate to the parties to bargain negotiations, economic weapons they may utilize. Furthermore, as this Court held in the Buffalo Linen decision --
William J. Brennan, Jr.: What do you think the Court (Inaudible)?
William L. Keller: I don't think it has much merit frankly for these reasons. In both cases, the parties were engaging in collective bargaining. In Insurance Agents, we have one in effect was a partial strike. We had a slowing down of the engagement of harassing activities on behalf of employees. In this case, we have a strike against the entire employer bargaining unit. The picketing may change from employer to employer but in this case as in Insurance Agents we have at all time a partial strike. I simply don't see the distinction of the two cases. Insurance Agents was sufficient to control a partial strike situation; we believe that Insurance Agent is applicable here in controlling that issue in this case. Furthermore, this Court held in Truck Drivers Local 449 which is known as Buffalo Linen, the employee's right to strike is not so absolute as to prevent the employers from engaging unreasonable self-help when the legitimate interest of the employers and their employees collide. We don't see the restriction of the Buffalo Linen case which would say that we can't engage in the reasonable self-help that we engaged in this case. In fact, we could read and construe the Buffalo Linen case to give us that absolute right. I will now discuss the Board's economic parity theory, which for the first time, the Board's urges us before this Court. The Board for the first time seems to agree that the employer members of a multiemployer bargaining unit are entitled to engage to some degree in self-help to defend their legitimate business interest against the whipsaw strike. At page 13 of the Board's brief, the suggestion is made that the non-picketed employers may put themselves “in the same boat” as the picketed employer by resuming operations with their regular employees either in full or to the extent being appropriate to maintain a level of operations comparable to that of the picketed employer. It has been pointed out in respondents brief at pages 33 to 35. This is a completely -- completely unworkable solution of the problem. The first question that would arise is the “who is determined the adequacy of the employers responsible of the whipsaw picket strikes?” Is it the employer, is it the Board or is it this Court? We urge that the adoption of this approach opens a whole new field of inquiry for the board which the Congress has not delegated to it. The second question which occurred is what is a comparable level of operations? First, can the non-picketed employers work only the same number of employees as the number of replacement utilized by the picketed employer or should the percentage of the replacements to the total number of employees be the test or should perhaps the non-picketed employers strive only for the same percentage of the market that they enjoyed before the strike commenced or can the non-picketed employers remain open their regular business hours if the picketed employer remains open in his regular business hours or the picketed employer does not remain open in his regular business hour? Or should the employer remain open the same number of hours each day during the course of the strike, or should the non-picketed employers use all of their employees on a part-time basis their by engaging in a partial lockout? Or should merely some of their employees work on a full-time basis which was still costs due to partial lockout? Or maybe the non-picketed employer's role take their employees you continue to work or must they make a selection and face additional charges of discrimination? These are just a few of the many problems that are inherent in application of the Board's economic parity rule. It's obvious that multitude problems of the kind we mentioned make it imperative to this Court reaffirm the rule that it laid down an insurance agent, the rule that it laid down in Buffalo Linen that the employers are entitled to engage in reasonable self-help to protect their bargaining unit and their legitimate interest from the severe consequences of whipsaw strike, and that the Board lacks the authority to pick and choose for the employers, the economic weapons available to them as a means to protecting themselves. The respondents submit that here, they utilize all the limited and reasonable self-help in their attempt to continue their operation on a makeshift basis for the purpose of protecting their legitimate business interests to the service the community with food stuffs. As I point out, these were the principal food stores in the town of Carlsbad, New Mexico. I would state to the Court that some mentioned was made by counsel for the Board, concerning the right to use replacement. Some mentioned was made for the Mackay case. We would submit that here or there was no unconditional offer on the part of any employee to resume his work and to disavow or to disassociate himself from the strike action that he and his union was engaging in. We would submit to the Court that in this case, that the union and its members were on strike against the entire employer bargaining unit that they were therefore active participants in the strike that the strike constituted their collective action, that they voted for the strike, that they participate in decisions, that they reap the benefits and that they therefore must be accorded status as strikers.
Byron R. White: Safeway closed down one store and went open?
William L. Keller: That's correct sir.
Byron R. White: But now reinstate and give back pay to employees and the closed store?
William L. Keller: The Board ruled that Safeway would not be required to give back pay to the employees in the store which was for the period it was closed during the strike.
Byron R. White: But the other one would?
William L. Keller: The other one would. Of course, they took the supervisory employees who are not in the bargaining unit with the store that was closed and transferred them over to help operate their other store.
Byron R. White: I looked at your brief in the record to this business here not being given a fair opportunity to put in your evidence. I don't see -- perhaps, you could give us some note about that or something. Give us a record citation as to -- (Voice Overlap)
William L. Keller: They place to -- I would point out to the Court that in this case, the Board relies on Buffalo Linen and it's the Board's vast expertise to balance all these and to delicately balance the conflicting interests between the parties to this type of an action and it just doesn't quite seem right to the respondents that when you attempt to offer evidence of economic necessity to show the Board why you are compelled to continue to operate your stores, that you are not given that opportunity. And we submit to the Court that there simply cannot be any delicate -- balance in the conflicting interest when you are not accorded to the opportunity to submit that type of --
Byron R. White: You don't -- can you show us where that is by any chance?
William L. Keller: I think it's on page 44 of the transcript.
Byron R. White: Alright. Thank you very much.
Hugo L. Black: (Inaudible)
William L. Keller: He asked for the record reference –-
Hugo L. Black: I mean what (Voice Overlap) –-
William L. Keller: I want to show that it is a matter of economic necessity --
Hugo L. Black: (Voice Overlap) but yes, there are some error, and what was it?
William L. Keller: As a matter, we want to show to the Board as a matter of economic necessity that these respondents could not shut down their grocery operations with their perishable inventories and that it is a practical matter that they simply couldn't do it economically.
Hugo L. Black: Couldn't --
Hugo L. Black: Could not do it. It will -- accorded economic disaster had they done so.
William L. Keller: Alright, groceries or what?
William L. Keller: Groceries. They have large perishable inventories of grocery products, yes sir. We also submit that it is not practicable to require them to remain close and shut off as the major part of the community without food stuffs. I have no further argument.
Earl Warren: Very well. We'll adjourn.