Respondents Brief — Hospital Menonita de Guayama, Inc., Petitioner v. National Labor Relations Board

No. 24-138

In the Supreme Court of the United States

HOSPITAL MENONITA DE GUAYAMA, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

JENNIFER A. ABRUZZO

General Counsel

PETER SUNG OHR

Deputy General Counsel

RUTH E. BURDICK

Deputy Associate General

Counsel

DAVID HABENSTREIT

Assistant General Counsel

MEREDITH L. JASON

Deputy Assistant General

Counsel

ELIZABETH A. HEANEY

Supervisory Attorney

HEATHER S. BEARD

Senior Attorney

National Labor Relations

Board

Washington, D.C. 20570

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

The National Labor Relations Board’s successor-bar

doctrine states that an incumbent union enjoys an irrebuttable presumption of majority support for a reasonable period of time, not to exceed 12 months, following

a successor employer’s voluntary recognition of the

union as the collective-bargaining representative of its

employees. The question presented is:

Whether the court of appeals correctly upheld the

Board’s application of that doctrine in this case.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 8

Conclusion ................................................................................... 20

TABLE OF AUTHORITIES

Cases:

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998).................................................... 4, 10, 15

Auciello Iron Works, Inc. v. NLRB,

517 U.S. 781 (1996).......................................................... 2, 15

Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978) ....... 4, 9, 17

Brooks v. NLRB, 348 U.S. 96 (1954) .......................... 8, 10-12

Charles D. Bonanno Linen Serv., Inc. v. NLRB,

454 U.S. 404 (1982)................................................................ 4

Chevron USA Inc. v. NRDC, Inc.,

467 U.S. 837 (1984).......................................................... 8, 17

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 16

Fall River Dyeing & Finishing Corp. v. NLRB,

482 U.S. 27 (1987) .................................. 2, 4, 8, 10, 11, 13, 14

Fibreboard Paper Prods. Corp. v. NLRB,

379 U.S. 203 (1964)................................................................ 3

First Nat’l Maint. Corp. v. NLRB,

452 U.S. 666 (1981)...................................................... 2, 3, 18

Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) ........... 3, 9, 17

KC Transp., Inc. v. Su, 144 S. Ct. 2708 (2024) ................... 19

Landmark Int’l Trucks, Inc. v. NLRB,

699 F.2d 815 (6th Cir. 1983) ............................................... 16

Lawrence v. Chater, 516 U.S. 163 (1996) ....................... 16, 17

(III)

IV

Cases—Continued:

Page

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ........................................... 8, 9, 16, 17

Michigan v. EPA, 576 U.S. 743 (2015) ................................ 17

NLRB v. A.J. Tower Co., 329 U.S. 324 (1946) ...................... 3

NLRB v. Burns Int’l Sec. Servs., Inc.,

406 U.S. 272 (1972).......................................................... 8, 14

NLRB v. Curtin Matheson Sci., Inc.,

494 U.S. 775 (1990)............................................ 3, 4, 9, 10, 18

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963) ........ 9, 18

NLRB v. Financial Inst. Empl. of Am.,

475 U.S. 192 (1986)........................................................ 13, 14

NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) .............. 3

NLRB v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) ................................................................... 2

NLRB v. Lily Transp. Corp.,

853 F.3d 31 (1st Cir. 2017) ........................7, 8, 12, 16, 18, 19

NLRB v. Local Union No. 103, Iron Workers,

434 U.S. 335 (1978)................................................................ 4

NLRB v. Truck Drivers Local Union 449,

353 U.S. 87 (1957) ..........................................9, 10, 12, 13, 18

Republic Aviation Corp. v. NLRB,

324 U.S. 793 (1945).............................................................. 10

Secretary of Labor v. KC Transp., Inc.,

77 F.4th 1022 (D.C. Cir. 2023) ........................................... 19

Southern Mouldings, Inc., 219 N.L.R.B. 119 (1975) ........... 5

UGL-UNICCO Serv. Co.,

357 N.L.R.B. 801 (2011) .................................... 4, 5, 7, 11-13

United States v. Williams, 504 U.S. 36 (1992) ................... 16

Woelke & Romero Framing, Inc. v. NLRB,

456 U.S. 645 (1982).............................................................. 15

V

Statutes:

Page

National Labor Relations Act, 29 U.S.C. 151 et seq............. 2

29 U.S.C. 151 ...................................................................... 2

29 U.S.C. 153 ...................................................................... 3

29 U.S.C. 156 ...................................................................... 3

29 U.S.C. 157 (§ 7) ............................................. 2, 7, 12, 19

29 U.S.C. 158 (§ 8) ......................................................... 2, 6

29 U.S.C. 158(a)(5) (§ 8(a)(5)) ....................................... 2, 3

29 U.S.C. 158(d) (§ 8(d)).................................................... 3

29 U.S.C. 159(a) ................................................................. 2

29 U.S.C. 159(c)(3) (§ 9(c)(3)) ......................................... 15

29 U.S.C. 160 ...................................................................... 3

29 U.S.C. 160(e) ............................................................... 15

29 U.S.C. 160(f )................................................................ 15

29 U.S.C. 161 ...................................................................... 3

28 U.S.C. 2106 ........................................................................ 16

29 U.S.C. 141(b) ....................................................................... 2

In the Supreme Court of the United States

No. 24-138

HOSPITAL MENONITA DE GUAYAMA, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-36)

is reported at 94 F.4th 1. The decision and order of the

National Labor Relations Board (Pet. App. 45-158) is

reported at 371 N.L.R.B. No. 108. An earlier decision

and order of the administrative law judge is reported at

2019 WL 2354716.

JURISDICTION

The judgment of the court of appeals (Pet. App. 3738) was entered on February 27, 2024. A petition for

rehearing and rehearing en banc was denied on May 7,

2024 (Pet. App. 41). The petition for a writ of certiorari

was filed on August 5, 2024. The jurisdiction of the

Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. a. The National Labor Relations Act (NLRA or

Act), 29 U.S.C. 151 et seq., “declared [it] to be the policy

of the United States” to “protect[] the exercise by workers of full freedom of association, self-organization, and

designation of representatives of their own choosing,

for the purpose of negotiating the terms and conditions

of their employment or other mutual aid or protection.”

Ibid. As this Court has recognized, “[t]he object of the

[NLRA] is industrial peace and stability.” Auciello

Iron Works, Inc. v. NLRB, 517 U.S. 781, 785 (1996)

(citing 29 U.S.C. 141(b) and Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38 (1987)). “Central

to achievement of this purpose is the promotion of collective bargaining as a method of defusing and channeling conflict between labor and management.” First

Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 674 (1981);

see NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,

22-24 (1937).

The NLRA accordingly guarantees employees “the

right to self-organization, to form, join, or assist labor

organizations, to bargain collectively through representatives of their own choosing,” and “the right to refrain from any or all of such activities.” 29 U.S.C. 157.

Under the Act, the “[r]epresentatives designated or

selected” by “the majority” of the employees in a bargaining unit “shall be the exclusive representatives of

all the employees in such unit for purposes of collective

bargaining in respect to rates of pay, wages, hours of

employment, or other conditions of employment.” 29

U.S.C. 159(a).

Congress enacted provisions to implement those

statutory guarantees in Section 8 of the Act, 29 U.SC.

158. Section 8(a)(5) makes it an unfair labor practice for

3

an employer to “refuse to bargain collectively” with the

union representing its employees. 29 U.S.C. 158(a)(5).

That statutory duty requires the employer to “meet at

reasonable times and confer in good faith” with the union about the subjects in Section 8(d), including “wages,

hours, and other terms and conditions of employment.”

29 U.S.C. 158(d); see First Nat’l Maint., 452 U.S. at 674675 & n.12; Fibreboard Paper Prods. Corp. v. NLRB, 379

U.S. 203, 209-210 (1964).

Congress charged the National Labor Relations

Board (NLRB or Board) with enforcing the Act. 29

U.S.C. 153, 156, 160-161. In doing so, “Congress has

entrusted the Board with a wide degree of discretion in

establishing the procedure and safeguards necessary to

insure the fair and free choice of bargaining representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S.

324, 330 (1946); see Ford Motor Co. v. NLRB, 441 U.S.

488, 495 (1979) (explaining that “Congress assigned to

the Board the primary task of construing” the Act “in

the course of adjudicating charges of unfair refusals to

bargain”). In light of Congress’s grant of discretion to

the Board, this Court “has emphasized often that the

NLRB has the primary responsibility for developing

and applying national labor policy.” NLRB v. Curtin

Matheson Sci., Inc., 494 U.S. 775, 786 (1990); see NLRB

v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) (recognizing the Board’s “special function of applying the general provisions of the Act to the complexities of industrial life”) (citation omitted).

The Court has further explained that “[b]ecause it is

to the Board that Congress entrusted the task of applying the Act’s general prohibitory language in the light

of the infinite combinations of events which might be

charged as violative of its terms,” the grant of authority

4

and discretion to the Board includes the “authority to

formulate rules to fill the interstices of the broad statutory provisions.” Curtin Matheson, 494 U.S. at 786

(quoting Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500501 (1978)) (internal quotation marks omitted). The

Board’s authority includes discretion to implement certain presumptions limiting an employer’s ability to

withdraw its recognition of a union as the representative of its employees. See Allentown Mack Sales &

Serv., Inc. v. NLRB, 522 U.S. 359, 378 (1998) (explaining that “[t]he Board can, of course, forthrightly and explicitly adopt * * * substantive rules of law[] as a way

of furthering particular legal or policy goals” under the

Act).

Given the Board’s “considerable authority to interpret the provisions of the NLRA,” Fall River, 482 U.S.

at 42, this Court has consistently explained that it “will

uphold a Board rule as long as it is rational and consistent with the Act,” Curtin Matheson, 494 U.S. at 787

(citing Fall River, 482 U.S. at 42; NLRB v. Local Union

No. 103, Iron Workers, 434 U.S. 335, 350 (1978); Charles

D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404,

413, 418 (1982)).

b. This case concerns a presumption known as the

“successor bar” doctrine. See UGL-UNICCO Serv. Co.,

357 N.L.R.B. 801, 801 (2011). In its current form,

the doctrine provides that when a successor employer

voluntarily recognizes an incumbent union, the union

enjoys a conclusive presumption of majority support for

a “reasonable period” of bargaining. Ibid. The Board

has defined a “reasonable period” as between six and 12

months from the date on which the successor employer

recognized the union. Id. at 809. As the Board has

explained, that temporary presumption “promote[s] a

5

primary goal of the [NLRA] by stabilizing labormanagement relationships and so promoting collective

bargaining, without interfering with the freedom of employees to periodically select a new representative or

reject representation.” Id. at 801.

The Board has recognized a presumption of majority

support in the successor context since at least 1975. See

Southern Mouldings, Inc., 219 N.L.R.B. 119 (1975). At

times, the presumption of majority support for the

union has been conclusive; at other times, the presumption has been rebuttable. Pet. App. 6-11 (discussing history of the presumption). Since 2011, the Board has

treated the presumption as irrebuttable during the temporary period in which it applies. UGL-UNICCO, 357

N.L.R.B. at 806-807.

2. Petitioner, a corporation with operations in Puerto

Rico, purchased the assets of Hospital San Lucas

Guayama in 2017. Pet. App. 11. At the time, five bargaining units of hospital employees were represented

by Unidad Laboral de Enfermeras (OS) y Empleados

de la Salud (the Union). Id. at 3, 12. Petitioner voluntarily recognized the Union shortly after it acquired the

hospital. Id. at 13.

Soon thereafter, petitioner awarded bonuses to employees without bargaining with the Union, and later refused the Union’s request to bargain. Pet. App. 13-14.

Petitioner also purported to withdraw recognition from

the Union and asserted that a majority of employees in

each bargaining unit no longer desired representation.

Id. at 14-15. Without negotiating with the Union,

petitioner then changed the workers’ terms and conditions of employment, including their benefits, wages,

and rules of conduct. Id. at 15-16. Petitioner also de-

6

clined the Union’s requests for information relevant to

its bargaining with petitioner. Id. at 16.

3. In 2018, the Union filed charges with the Board,

asserting that petitioner had committed unfair labor

practices. The Board’s General Counsel issued a complaint alleging that petitioner’s conduct violated Section

8 of the NLRA, 29 U.S.C. 158, by failing and refusing to

bargain with the Union, by unilaterally changing employees’ terms and conditions of employment, and by

failing to respond to the Union’s requests for information relevant to its bargaining duties. Pet. App. 47.

Following a hearing, an administrative law judge

(ALJ) sustained the complaint in relevant part. Pet.

App. 123-158. The ALJ concluded that petitioner violated the Act because the “withdrawal of recognition of

the Union for all five units ran afoul of the successor bar

rule” and because petitioner had “failed and refused to

bargain with the Union thereafter.” Id. at 143. The

ALJ also found that petitioner had unlawfully failed to

furnish bargaining-related information to the Union.

Ibid. The ALJ likewise rejected petitioner’s argument

that the conclusive presumption in the successor bar

should be overturned. Ibid.

4. The Board affirmed. Pet. App. 45-118. As pertinent here, it upheld the ALJ’s conclusions that

petitioner had committed unfair labor practices, in violation of 29 U.S.C. 158. Pet. App. 49-50, 54-56. The

Board likewise rejected petitioner’s assertion that the

conclusive presumption of majority support should be

“replace[d]” with a “rebuttable” presumption. Id. at 56.

The Board explained that it had already addressed materially similar arguments in its 2011 decision reinstating the presumption’s conclusive nature, id. at 57-61,

noted that the presumption had been upheld by the only

7

court of appeals to have considered it in its current

form, id. at 61-62 (citing NLRB v. Lily Transp. Corp.,

853 F.3d 31 (1st Cir. 2017) (Souter, J.)), and explained

that the conclusive—but temporary—presumption advanced the NLRA’s purpose better than petitioner’s alternative proposal of a rebuttable presumption, id. at

63-70; see UGL-UNICCO, 357 N.L.R.B. at 806-807. The

Board ordered petitioner to bargain with the Union. Id.

at 73-78.

One member of the Board dissented. Pet. App. 79118. In the dissent’s view, the successor bar should be

rebuttable.

5. The court of appeals denied petitioner’s request

for review and enforced the Board’s order. Pet. App. 136.

The court of appeals rejected petitioner’s contention

that the Board had failed to sufficiently explain its 2011

decision to treat the successor bar as a conclusive presumption. Pet. App. 24-29. The court determined that

the Board had “permissibly changed” the presumption

through reasoned decision-making, and that the presumption was a lawful exercise of the Board’s statutory

“responsibility for developing and applying national

labor policy.” Id. at 28. The court also rejected (id. at

30-32) petitioner’s argument that the conclusive presumption should be replaced by a rebuttable one in order to avoid infringing employees’ rights to “refrain

from” collective-bargaining activities. 29 U.S.C. 157.

The court explained that the conclusive presumption

is consistent with employees’ rights because it “lasts

only * * * between just six months to a year” and

“serves . . . the NLRA’s ‘underlying purpose’ ” by

providing “limited discouragement of an unduly hasty

reexamination of ” employees’ choice to be represented

8

by the incumbent union. Pet. App. 29 (quoting Lily

Transp., 853 F.3d at 35-36 (quoting Brooks v. NLRB,

348 U.S. 96, 103 (1954))) (brackets omitted). The court

further concluded that the conclusive presumption is

consistent with this Court’s decisions in Fall River, 482

U.S. 27, and NLRB v. Burns Int’l Sec. Servs., Inc., 406

U.S. 272 (1972), which had endorsed the use of presumptions without suggesting that “a rebuttable presumption, rather than a bar, is required in a successorship situation.” Pet. App. 30 (emphasis added) (quoting

Lily Transp., 853 F.3d at 39). The court emphasized

that it had no occasion in this case “to decide the permissible outer limits of the successor bar rule.” Id. at

31.

Judge Katsas concurred. Pet. App. 33-36. In his

view, the court of appeals’ “decision seem[ed] to [be]

correct” under Chevron USA Inc. v. NRDC, Inc., 467

U.S. 837 (1984). Judge Katsas also agreed that the

Board “adequately explained [its] policy justifications

driving its interpretive choice.” Pet. App. 35-36.

Petitioner sought panel and en banc rehearing, relying on the then-pending petition for a writ of certiorari

in Loper Bright Enterprises v. Raimondo, 144 S. Ct.

2244 (2024). The court of appeals denied further review

without any request for a vote. Pet. App. 39-42. The

court also denied petitioner’s motion to stay the mandate pending this Court’s decision in Loper Bright. Id.

at 43-44.

ARGUMENT

Petitioner acknowledges that Congress vested the

Board with statutory authority to “develop rules concerning national labor policy,” including presumptions

in the successor-employer context. Pet. C.A. Br. 12.

And petitioner does “no[t] dispute that a union that rep-

9

resented employees before the entrance of a successor

employer is entitled to the presumption that it remains

the representative of the bargaining unit.” Pet. 14-15.

Petitioner disagrees (Pet. 7) only with respect to

whether the Board’s temporary presumption should be

conclusive or rebuttable for the short period in which it

applies. Further review of that question is unwarranted. The decision of the court of appeals is correct

and does not conflict with any decision of this Court or

another court of appeals.

In lieu of urging plenary review, petitioner asks the

Court to grant the petition, vacate the decision below,

and remand the case (GVR) in light of Loper Bright

Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). But

petitioner fails to show that Loper Bright would have

affected the disposition below. The petition for a writ

of certiorari should be denied.

1. The court of appeals properly upheld the Board’s

application of the successor bar in this case.

a. This Court has “emphasized often” that Congress

tasked the NLRB with “the primary responsibility for

developing and applying national labor policy.” NLRB

v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990)

(citations omitted). As this Court has repeatedly recognized, Congress “assigned to the Board the primary

task of construing” the NLRA “in the course of adjudicating charges of unfair refusals to bargain.” Ford Motor Co. v. NLRB, 441 U.S. 488, 495 (1979). The statutory

grant of discretion to the Board includes “authority to

formulate rules to fill the interstices of the [NLRA’s]

broad statutory provisions.” Curtin Matheson, 494 U.S.

at 786 (quoting Beth Israel Hosp. v. NLRB, 437 U.S.

483, 500-501 (1978)); see NLRB v. Erie Resistor Corp.,

373 U.S. 221, 236 (1963) (similar); NLRB v. Truck

10

Drivers Local Union 449, 353 U.S. 87, 96 (1957) (similar); Republic Aviation Corp. v. NLRB, 324 U.S. 793,

798 (1945) (similar). The Court has held that, when the

Board exercises its discretion to establish a presumption, the rule need only be “rational and consistent with

the NLRA.” Curtin Matheson, 494 U.S. at 787 (citing

Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27, 42 (1987)).

The court of appeals correctly concluded (Pet. App.

28-31) that the Board has statutory discretion to apply

the successor bar in its adjudication of unfair labor

practice complaints. This Court has consistently recognized that the Board’s congressionally conferred discretion includes the authority to promulgate presumptions

that limit an employer’s ability to withdraw its recognition of a union. For example, in Brooks v. NLRB, 348

U.S. 96 (1954), the Court upheld the Board’s conclusive

presumption that a union enjoyed majority support during the year following certification. Id. at 104. That

presumption, Brooks explained, rationally advanced the

Act’s aims because without it “encouragement would be

given to management or a rival union to delay certification by spurious objections to the conduct of an election

and thereby diminish the duration of the duty to bargain.” Ibid.; see Allentown Mack Sales & Serv., Inc. v.

NLRB, 522 U.S. 359, 378 (1998) (explaining that “[t]he

Board can, of course, forthrightly and explicitly adopt

counterfactual evidentiary presumptions” like an “irrebuttable presumption of majority support for the union

during the year following certification”).

This Court likewise has recognized that the Board

has discretion to apply presumptions that—like the

successor bar—address the labor uncertainty that

11

occurs when one employer replaces another. The Court

has made clear that, in “successorship situations,” a

presumption can be “particularly pertinent” to advancing the NLRA’s “overriding policy” of “ ‘industrial

peace.’ ” Fall River, 482 U.S. at 37-39 (citation omitted).

In that delicate context, an incumbent union “needs the

presumptions of majority status to which it is entitled

to safeguard its members’ rights and to develop a relationship with the successor.” Id. at 39; see ibid. (explaining that an incumbent union is “peculiarly vulnerable” because it “has no formal and established bargaining relationship with the new employer, is uncertain

about the new employer’s plans, and cannot be sure if

or when the new employer must bargain with it”).

Like the presumptions upheld by this Court, the successor bar reasonably advances the NLRA’s goals. It

provides a temporary “insulated period[]” that “enables

the [incumbent] union to focus on bargaining, as opposed

to shoring up its support among employees, and to bargain without being ‘under exigent pressure to produce

hothouse results or be turned out.’ ” UGL-UNICCO,

357 N.L.R.B. at 807-808 (quoting Brooks, 348 U.S. at

100). The doctrine’s scope and duration thus reflect a

policy decision “within the allowable area of the Board’s

discretion” under the Act. Brooks, 348 U.S. at 104; see

Fall River Dyeing, 482 U.S. at 38-39.

b. Petitioner does not contest the Board’s statutory

authority to implement some presumption that an incumbent union enjoys majority support when one employer replaces another. Pet. 14-15 (admitting “[t]here

is no dispute” on that point). Rather, petitioner voices

12

a policy preference that the temporary presumption be

rebuttable. That argument lacks merit. *

Petitioner renews its contention (Pet. 8-10) that a rebuttable presumption of majority support would vindicate an employee’s right under Section 7 of the Act, 29

U.S.C. 157, not to engage in collective bargaining and

would better promote labor stability. But those arguments provide no sound reason to question the Board’s

exercise of its judgment and discretion under the Act,

let alone to require the Board to adopt petitioner’s preferred presumption. See pp. 2-4, 9-11, supra. Petitioner’s reliance on Section 7 is especially inapt because

“allow[ing] employers to rely on employees’ rights in refusing to bargain with the formally designated union”

would be “inimical” to the NLRA. Brooks, 348 U.S. at

103 (emphasis added). Nor does petitioner explain how,

as a statutory matter, the Board’s conclusive but temporary presumption “patently trespasses on Section 7

while some rebuttable presumptions would not.”

NLRB v. Lily Transp. Corp., 853 F.3d 31, 35 (1st Cir.

2017) (Souter, J.). And petitioner’s resort to policy arguments overlooks that striking the proper balance of

interests and “effectuat[ing] national labor policy is

* * * a difficult and delicate responsibility” that “Congress committed primarily to the [NLRB].” Truck

Drivers, 353 U.S. at 96; see UGL-UNICCO, 357

N.L.R.B. at 804 (explaining that selecting a presumption is “an important policy choice” that requires “con-

In this Court, petitioner no longer challenges whether the Board’s

2011 decision to restore a conclusive presumption reflected reasoned decision-making. Compare Pet. 7-16, with Pet. C.A. Br. 1215, and Pet. App. 24-29. That question is therefore not presented

here.

*

13

sider[ation of ] the larger, sometimes competing, goals

of the statute”).

Petitioner’s policy critiques are also unpersuasive on

their own terms. Most fundamentally, petitioner’s arguments misapprehend the effect of the successor bar.

The presumption lasts only for a reasonable period not

to exceed 12 months. Pet. App. 27-29. Precisely because the conclusive presumption is temporary, it balances the Act’s aims to protect employees’ freedom of

choice and to promote stable bargaining relationships.

See Fall River, 482 U.S. at 38-40; Truck Drivers, 353

U.S. at 96. If anything, it is petitioner’s policy proposal

that risks undermining an employee’s rights and labor

peace: As the Board has explained, a rebuttable presumption would not account for the fact that “the new

relationship” between a successor employer and its employees “often begin[s] in a context where everything

that the union has accomplished in the course of the

prior bargaining relationship (including, of course, a

contract) is at risk, if not already eliminated.” UGLUNICCO, 357 N.L.R.B. at 807. And as the court of

appeals recognized, petitioner’s proposed presumption

would create an “added burden of rebuttal” and “increase litigation time and expense,” Pet. App. 30, which

the Board reasonably sought to avoid. Had petitioner

simply negotiated with the union it voluntarily recognized, “the bar period could have begun and ended in

short order.” Id. at 67.

Petitioner errs in suggesting (Pet. 11-13) that this

Court’s precedent requires the Board to replace its conclusive presumption with a rebuttable one. If anything,

this Court’s decision in NLRB v. Financial Institution

Employees of America, 475 U.S. 192 (1986), supports

the successor bar. Financial Institution rejected a

14

Board rule that (1) required non-union employees to

vote on a certified union’s decision to affiliate with

another union, and (2) permitted an employer to refuse

to bargain with the reorganized union unless non-union

members had voted on the reorganization. Id. at 197,

200-201. The Court explained that the rule “contravene[d]” the Act’s framework for maintaining “stable

bargaining relationships” by “effectively giv[ing] the

employer the power to veto an independent union’s decision to affiliate” and by undermining the presumption

of a union’s majority status. Id. at 209; see id. at 202203 (explaining that the rule would “effectively decertify[] the reorganized union” and undermine “ ‘[t]he industrial stability sought by the Act’ ”) (citation omitted);

see also Fall River, 482 U.S. at 41 n.9. Those same principles confirm that the successor bar falls within the

Board’s statutory discretion: The conclusive presumption promotes labor stability by preventing an employer

from challenging a union’s majority status for a limited

time.

Petitioner’s reliance (Pet. 13) on NLRB v. Burns

International Security Services, Inc., 406 U.S. 272 (1972),

is similarly misplaced. Burns rejected a Board rule requiring a successor employer to comply with a preexisting collective-bargaining contract, even if the employer

“had not voluntarily assumed” the prior agreement. Id.

at 274. The Court found that rule to be unlawful because the NLRA “does not compel any agreement whatever.” Id. at 282 (citation omitted). Burns is beside the

point because the successor bar does not mandate any

agreement. Instead, it requires that a new employer

bargain with a union—just as the employer would be

required to do under Burns—with the limited addi-

15

tional requirement that the negotiation period last for a

reasonable time (and no greater than 12 months).

Finally, petitioner does not advance its argument by

invoking (Pet. 9-10) Section 9(c)(3) of the Act, which

states that “[n]o election shall be directed in any bargaining unit or any subdivision” that had already held a

valid election “in the preceding twelve-month period,”

29 U.S.C. 159(c)(3). Petitioner draws from that text

a negative inference that the Board is precluded from

implementing additional policies limiting the timeframe

in which an employer may “challeng[e] a union’s representation.” Pet. 9. But that conclusion does not follow

from its premise. Nothing in Section 9(c)(3)’s one-year

bar to Board elections undermines the Board’s statutory authority to “develop national labor policy” that

temporarily restrains employers from withdrawing

recognition of a union. See Auciello Iron Works, Inc. v.

NLRB, 517 U.S. 781, 787-788 (1996); see also Allentown

Mack Sales, 522 U.S. at 378 (endorsing “the Board’s irrebuttable presumption” preventing an employer from

challenging “majority support for the union during the

year following certification”).

This case would also be a poor vehicle to address

petitioner’s objection under Section 9(c)(3) of the Act

because petitioner did not raise it before the Board. In

authorizing judicial review of the Board’s final orders in

a court of appeals, the NLRA states that “[n]o objection

that has not been urged before the Board * * * shall

be considered by the court, unless the failure or neglect

to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. 160(e); see 29

U.S.C. 160(f ); Woelke & Romero Framing, Inc. v.

NLRB, 456 U.S. 645, 665 (1982). Petitioner offers no

explanation for its forfeiture. And quite aside from

16

whether petitioner could overcome that barrier, this

Court is one “of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), and ordinarily does

not address issues that were not pressed or passed upon

in the decision below, see United States v. Williams,

504 U.S. 36, 41 (1992).

2. The decision below does not conflict with the decision of any other court of appeals. Petitioner concedes

(Pet. 6, 10) that the only other court of appeals to have

addressed the successor bar in its current form is consistent with the decision below. See Lily Transp., supra.

Petitioner’s reference (Pet. 13) to Landmark International Trucks, Inc. v. NLRB, 699 F.2d 815, 818 (6th

Cir. 1983), does not suggest any division in the courts of

appeals either. Landmark International addressed

a previous iteration of the successor bar doctrine that

existed more than 40 years ago and is not at issue here.

3. Rather than seek plenary review, petitioner asks

(Pet. 7-8, 10-11, 15-16) this Court to GVR in light of

Loper Bright, 144 S. Ct. 2244. The Court should reject

that request.

a. This Court’s authority to GVR is grounded in its

power to remand for further proceedings “as may be

just under the circumstances.” 28 U.S.C. 2106. The

Court has explained that a GVR is “potentially appropriate” when “intervening” or “recent” developments

“reveal a reasonable probability that the decision below

rests upon a premise that the lower court would reject

if given the opportunity for further consideration, and

where it appears that such a redetermination may determine the ultimate outcome of the litigation.” Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam).

17

In Loper Bright, this Court overruled Chevron USA

v. NRDC, Inc., 467 U.S. 837 (1984), which had obligated

courts to sustain permissible agency interpretations of

ambiguous statutory language—a form of “binding deference” that “courts had never before applied.” Loper

Bright, 144 S. Ct. at 2260-2264 & nn.3-4. But Loper

Bright emphasized that “often” a “statute’s meaning

may well be that the agency is authorized to exercise a

degree of discretion.” Id. at 2263; see id. at 2268. The

Court explained that such authorization exists where

Congress “empower[s] an agency to prescribe rules to

‘fill up the details’ of a statutory scheme.” Id. at 2263

(citation omitted). In those contexts, a reviewing court’s

role is to “ensur[e] the agency has engaged in ‘reasoned

decision-making’ within th[e] boundaries” of an otherwise “constitutional delegation[].” Ibid. (quoting Michigan v. EPA, 576 U.S. 743, 750 (2015)); see id. at 2261.

A GVR is unwarranted here because there is no “reasonable probability” that Loper Bright would cause the

court of appeals to reject any premise on which its decision rests. Lawrence, 516 U.S. at 167. The decision below is consistent with Loper Bright: It neither cited nor

relied on Chevron, and instead applied this Court’s case

law specific to the NLRA. Pet. App. 5-6; 22-32. That

body of law predates Chevron by decades and recognizes the exact type of statutory discretion that Loper

Bright reaffirmed. See 144 S. Ct. at 2263; pp. 2-4, 9-11,

supra.

When this Court decided Chevron in 1984, it was already well-established that Congress in the NLRA had

“assigned to the Board the primary task of construing”

the NLRA “in the course of adjudicating charges of unfair refusals to bargain.” Ford Motor Co., 441 U.S. at

495; see, e.g., Beth Israel Hosp., 437 U.S. at 500 (“It is

18

the Board on which Congress conferred the authority to

develop and apply fundamental national labor policy.”);

Curtin Matheson, 494 U.S. at 786 (similar); Erie Resistor, 373 U.S. at 236 (similar); Truck Drivers, 353 U.S. at

96 (similar). That congressional grant of discretion to

the Board was “clearly meant to preserve” the Board’s

“power further to define” and engage in “future interpretation” of the Act. First Nat’l Maint. Corp. v.

NLRB, 452 U.S. 666, 675 & n.14 (1981). Neither Chevron nor Loper Bright affected this Court’s longstanding

precedent construing the NLRA and recognizing Congress’s vesting of discretion in the Board.

b. Petitioner attempts (Pet. 10 & n.3) to tether the

court of appeals’ decision to Chevron by pointing to

Judge Katsas’s concurring opinion. See Pet. App. 3336. But that concurrence reflected a separate view that

the court’s decision was correct “[u]nder Chevron,” id.

at 35, as well. Nothing in the opinion for the court indicated any reliance on Chevron deference—a point further underscored by the orders denying panel and en

banc rehearing, id. at 39-42, and declining to stay the

mandate pending this Court’s decision in Loper Bright,

id. at 43-44; see Pet. C.A. Pet. for Reh’g 6-7; Pet. C.A.

Mot. to Stay Mandate 4-6.

Petitioner wrongly asserts (Pet. 10) that a GVR is

warranted because the decision below cited Lily Transportation, supra, an opinion of the First Circuit that in

turn referenced Chevron. That argument lacks merit

for at least two principal reasons.

First, the First Circuit in Lily Transportation discussed Chevron because one of the disputes in that case

was whether Chevron deference applied. 853 F.3d at 35.

Here, by contrast, it was common ground that Chevron

did not govern. See Pet. C.A. Reply Br. 7 n.3 (asserting

19

that Chevron deference is inapplicable); Gov’t C.A. Br.

15-17; 33-37 (relying on NLRA-related precedent); see

Gov’t Opp. to Mot. to Stay Mandate 11 & n.3 (noting that

petitioner had not raised a challenge implicating deference “on Chevron grounds”).

Second, the court of appeals relied on Lily Transportation not for its discussion of Chevron, but for the First

Circuit’s conclusions independently rejecting the “same

arguments” that petitioner was raising in this case. Pet.

App. 29. Specifically, the court of appeals observed that

Lily Transportation had rejected petitioner’s statutory

argument under 29 U.S.C. 157 “without difficulty,” Pet.

App. 29 (citing Lily Transp., 853 F.3d at 35), and had

made clear that the Board’s decision to apply the

successor bar was adequately explained and consistent

with this Court’s decisions, id. at 29-31 (citing Lily

Transp., 853 F.3d at 38-39). That narrow discussion

does not suggest that a GVR would prompt the court

below to grant petitioner relief.

Finally, petitioner observes (Pet. 15-16) that this

Court decided to GVR in KC Transport, Inc. v. Su, 144

S. Ct. 2708 (2024). That outcome is not instructive here

because the court of appeals’ decision in KC Transport

was premised expressly on Chevron, see Secretary of

Labor v. KC Transp., Inc., 77 F.4th 1022, 1028 (D.C.

Cir. 2023), and because the parties had agreed that this

Court should hold and dispose of that petition in light of

Loper Bright. As explained above, the decision below

rests on the NLRA and 80 years of precedent commencing prior to—and independent of—Chevron itself.

20

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JENNIFER A. ABRUZZO

General Counsel

PETER SUNG OHR

Deputy General Counsel

RUTH E. BURDICK

Deputy Associate General

Counsel

DAVID HABENSTREIT

Assistant General Counsel

MEREDITH L. JASON

Deputy Assistant General

Counsel

ELIZABETH A. HEANEY

Supervisory Attorney

HEATHER S. BEARD

Senior Attorney

National Labor Relations

Board

NOVEMBER 2024

ELIZABETH B. PRELOGAR

Solicitor General