Opposition Brief — Action Automotive, Inc. v. National Labor Relations Board

9)

No. 88-713

In the Supreme Court of the An

OCTOBER TERM, 1988

ACTION AUTOMOTIVE, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

m IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washingion, D.C. 20530

(202) 633-2217

ROSEMARY M. COLLYER

General Counsel

D. RANDALL FRYE

Associate General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

CARMEL P. EBB

Altorney

National Labor Relations Board

Washington, D.C. 20570

H

pc fe a

L5 RRO Bee 4

QUESTION PRESENTED

Whether the Board acted within its discretion in order-

ing petitioner to bargain with the certified representative

of its employees notwithstanding events that occurred

while petitioner was litigating its obligation to bargain.

(1)

TABLE OF CONTENTS

Page

EP a a ee ee l

rr ee rae avs ee arene eeb eas vee was l

er re oo ie eke ed oan se see en l

Argument ......... te Ma Owe cut ba wbae ds awn 66 owed 5

a ed ge ASO pe le 10

TABLE OF AUTHORITIES

Cases:

Action Automotive, Inc., 262 N.L.R.B. 423 (1982) ...... 2

Brooks v. NLRB, 348 U.S. 98 (1954) .............. 3, 4, 5, 6,9

Fall River Dyeing & Finishing Corp. v. NLRB, No.

ee tea ceceseees a 5

Franks Bros. v. NLRB, 321 U.S. 702 (1944) ............ 5, 6

J.J. Newberry Co. v. NLRB, 645 F.2d 148 (2d Cir.

rer ae ee ee eda was dens 8

King Radio Corp. v. NLRB, 398 F.2d 14 (10th Cir.

ee er eae a eed hw add séudene 6

Mar-Jac Poultry Co., 136 N.L.R.B. 785 (1962) ......... 4

Molded Fiber Glass Body Co., 182 N.L.R.B. 400 (1970) .. XS

NLRB vy. Action Automotive, Inc., 469 U.S. 490 (1985) .. 2

NLRB vy. Best Products Co., 765 F.2d 903 (9h Cir.

se ol tapes neeese 7

NLRB v. Gissel Packing Co., 395 U.S.575 (1969) ....... 5,7,8

Pe Ws ME, SU Elsi, PR CNUUED bc cess ccccavccceces 5

NLRB vy. Little Rock Downtowners, Inc., 414 F.2d 1084

(8th Cir. 1969) ........ I eels inde kd oa bee a e088 4.8 7

NLRB vy. Star Color Plate Service, 843 F.2d 1507 (2d Cir.

1988), cert. denied, No. 87-2126 (Oct. 3, 1988) ........ 7,8

Peabody Coal Co. v. NLRB, 725 F.2d 357 (6th Cir.

at SIRE SR ae aie ly Se ee 7

Renaissance Center Partnership, 239 N.L.R.B. 1247

Ne ee be weeeeneaneas y

St. Bernadette’s Nursing Home, 234 N.L.R.B. 835

EN ee oes hee we ot . s

St. Regis Paper Co., 285 N.L.R.B. No. 39 (Aug. 10,

. ar Toe e ed ees ye 8 6 ae “ut re)

IV

Cases — Continued: Page

Technicolor Government Services, Inc. v. NLRB, 739

F.2d 323 CBtts Cie. 1964) 2. onc c ccc cece cccccccesnce 6

United Aircraft Corp. v. NLRB, 434 F.2d 1198 (2d Cir.

1970), cert. denied, 401 U.S. 993 (1971) ............-. 6

Westinghouse Electric & Mfg., 38 N.L.R.B. 404 (1942) .. 9

Statutes:

National Labor Relations Act, 29 U.S.C. i151 ef seq.:

§ 8(a)(1), 29 U.S.C. 158(aM(l) ... 2... eee eee eee 2,4

§ 8(a)(S), 29 U.S.C. 158(a(S) ..... 2... eee ee eee 2,4

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1988

No. 88-713

ACTION AUTOMOTIVE, INC., PETITIONER

V.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. B1-B6) is

reported at 853 F.2d 433. The decision and order of the

National Labor Relations Board (Pet. App. C1l-C2), in-

cluding the decision of the administrative law judge (Pet.

App. D1-D22), is reported at 284 N.L.R.B. No. 36.

JURISDICTION

The judgment of the court of appeals was entered on

August 2, 1988. The petition for a writ of certiorari was

filed on October 28, 1988. The jurisdiction of this court is

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

STATEMENT

1. Petitioner sells and distributes automobile parts and

related products and services. In May 1981, Local 40,

(1)

2

United Food and Commercial Workers laternational

Union, AFL-CIO (Local 40) won Board-conducted elec-

tions in a unit of clerical employees at petitioner’s main of-

fice and a separate unit of the store and warehouse em-

ployees at the nine stores petitioner then operated in the_

Flint, Michigan, area. Action Automotive, Inc., 262

N.L.R.B. 423 (1982). In January 1982, the Board rejected

petitioner’s objections to the conduct of the elections and

certified Local 40 as the representative of petitioner’s

employees in the designated units. Petitioner refused to

bargain with the union in order to test the certification.

The Board denied petitioner’s appeal and ordered it to

bargain, with the initial period of certification to com-

mence on the date good faith bargaining began. 262

N.L.R.B. at 425. The court of appeals denied enforcement

of the Board’s order, 717 F.2d 1033 (6th Cir. 1983), and

this Court reversed. NLRB v. Action Automotive, Inc.,

469 U.S. 490 (1985). The Board’s 1982 order was enforced

by the court of appeals on May 13, 1986. Pet. App. D4;

794 F.2d 213.

2. In March 1985, shortly after this Court’s remand,

Local 876, United Food and Commercial Workers Inter-

national Union, AFL-CIO (Local 876 or the Union) noti-

fied petitioner that it had merged with Local 40 and had

succeeded to Local 40’s representation rights. The Union

requested the names and addresses of all unit employees

and asked that petitioner bargain with it, in compliance

with this Court’s decision. Petitioner refused the request

on the ground, inter alia, that the 1981 elections were con-

ducted in units that were no longer appropriate and that,

accordingly, it had had no current obligation to bargain

with the union. Pet. App. B2, D4-D5. Additional unfair

labor practice charges were filed, and a complaint issued,

alleging that petitioner had violated Section 8(a)(1) and (5)

of the National Labor Relations Act, 29 U.S.C. 158(a)(1)

3

and (5), by refusing to furnish the requested information.

Pet. App. D4. -

The Board sustained the allegations of the complaint. It

rejected petitioner’s contention that employee turnover,

increases in the employee complement, and operational

changes manifested by the relocation of existing stores and

opening of new ones justified its refusal to bargain. Rely-

ing on Brooks v. NLRB, 348 U.S. 98 (1954), the Board ex-

plained that, “absent unusual circumstances, a union’s ma-

jority status is irrebuttably presumed to exist throughout

the 1-year period following the union’s certification,” and

that employee turnover since the certification is “not the

sort of ‘unusual circumstance’ (such as dissolution of or

substantial schism within the Union) that would permit

rebuttal of the Union’s presumed majority status[.}” Pet.

App. Cl-C2 n.1 (emphasis in original). The Board further

noted that petitioner’s expansion of the workforce and

relocations “are merely reflective of economic growth

achieved through normal business successes during the

substantial delays attributable to its own failure to

recognize the results of the Board elections.” /d. at D17.!

' In finding that these changes did not alter “the basic character of

the employing enterprise” (Pet. App. D18), the Board noted that (ibid.

(footnote omitted)):

Classifications have remained unchanged and bargaining unit

work is not shown to be functionally different from that per-

formed at the time of the elections. Thus, the separate communi-

ty of interest and identity delimited by the original unit deter-

minations does not appear to have been blurred by interchange or

other factors which preclude effective collective bargaining or

render that process economically impracticable or impossible.

Three of the stores covered by the 1982 certification had since re-

located to larger quarters in the same trade or market area. Pet. App.

D17. Employees at the additional stores petitioner had opened were

not within the designated bargaining units (/d. at B4; see 262 N.L.R.B.

at 425), and would not be covered by the bargaining order here.

4

Accordingly, the Board found that petitioner had violated

Section 8(a)(1) and (5) of the National Labor Relations

Act by refusing to furnish the Union with relevant infor-

mation, and the Board ruled that the one-year irrebuttable

presumption period following the Union’s certification as

bargaining representative would commence on the date

that petitioner began to bargain in good faith with the

Union. Pet. App. D19 (citing Mar-Jac Poultry Co., 136

N.L.R.B. 785 (1962)). The Board ordered petitioner, inter

alia, to furnish the Union with a list of employees in the

bargaining units and their current addresses. Jd. at C2,

D20-D22.

3. The court of appeals affirmed the Board’s decision

and enforced its order. Pet. App. B1-Bé. The court re-

jected petitioner’s claim that its “massive expansion” ex-

cused its refusal to bargain, since “the certification affects

only present employees at the locations in existence when

the election was held.” Jd. at B4. The court found that the

cases relied on by petitioner in which the Board had found

unusual circumstances sufficient to overcome the Brooks

presumption were factually distinguishable from this case

and that, in any event, “[t]he exception to the certification

year rule permitted in those two cases applies only when

the Board * * * considers a formal! petition for an election

filed during the certification year, not when an employer

has resorted to ‘self-help’ by refusing to bargain.” /d. at

BS. Relying on Brooks, 348 U.S. at 103, the court noted

that “ ‘{i]f an employer has doubts about his duty to con-

tinue bargaining, it is his responsibility to petition the

Board for relief, while continuing to bargain in good faith

at least until the Board has given some indication that his

claim has merit. Although the Board may, if the facts war-

rant, revoke a certification or agree not to pursue a charge

5

of an unfair labor practice, these are matters for the

Board; they do not justify employer self-help or judicial

intervention.’ ” Pet. App. B6.

ARGUMENT

The court of appeals’ decision is correct, and it does not

conflict with any decision of this Court or of any other

court of appeals. Accordingly, review by this Court is not

warranted.

1. This Court held in Brooks, 348 U.S. at 104, that

barring unusual circumstances a union’s majority status

may not be questioned during the year following the

union’s certification. The certification year has never

Started to run in this case, because that period does not

begin until the employer commences bargaining with the

union in good faith, and petitioner has not yet done so.

Petitioner does not dispute those principles. Rather, it

asserts that employee turnover and expansion of its opera-

tions during the period it was litigating its objections to the

representation election constitute unusual circumstances

within the meaning of Brooks and therefore justified peti-

tioner’s refusal to bargain. There is no merit to that con-

tention.

This Court has consistently held that a union’s loss of

majority status during delays due to litigation does not ter-

minate an employer’s obligation to bargain with the union.

Otherwise, as the Court explained in Franks Bros. v.

NLRB, 321 U.S. 702, 705 (1944), “procedural delays

necessary fairly to determine charges of unfair labor prac-

tices might in this way be made the occasion for further

procedural delays in connection with repeated requests for

elections, thus providing employers a chance to profit

from a stubborn refusal to abide by the law.” See also

NLRB vy. Katz, 369 U.S. 736, 748 n.16 (1962); NLRB v.

Gissel Packing Co., 395 U.S. 575, 610-611 (1969). See Fall

River Dyeing & Finishing Corp. v. NLRB, No. 85-1208

(June 1, 1987), slip op. 9-11.

alata ieee |

6

This case aptly illustrates that concern. The Union

proved its majority status seven and one-half years ago by

winning an election among petitioner’s employees. The en-

tire period of time since that election has been consumed

in litigating petitioner’s objections to the election (in-

cluding review by this Court) and the additional unfair

labor practice charges brought against petitioner because

of its continuing refusal to bargain with the Union. Under

these circumstances, petitioner cannot properly rely on

employee turnover and expansion of its business? during

the process of litigation as a justification for its continuing

refusal to bargain.?

? The Board found that the business expansion in this case was

“merely reflective of * * * normal business successes.” Pet. App. D17.

The court of appeals rejected petitioner’s claim that its business had

undergone a “massive expansion” of a type that constitutes an

“unusual circumstance” under Broo.s. Pet. App. B4.

’ Although, as petitioner notes (Pet. 9-10), it was not required to

negotiate with the Union during the pendency of its certification

challenge, petitioner continued to refuse to recognize and bargain with

the Union even after this Court had finally upheld the propriety of the

certification. Franks Bros. makes clear that petitioner was free to

challenge the Union's certification, but also that petitioner is not

relieved of the foreseeable consequences of the time consumed by its

litigating strategy once litigation has confirmed its obligation to

bargain with the Union. None of the cases cited by petitioner is to the

contrary.

Moreover, contrary to petitioner’s assertion (Pet. 9-10), it could

have bargained with the Union, subject to its challenge to the certifica-

tion, and made any resulting contract conditional on ultimate judicial

validation of the certification. See United Aircraft Corp. v. NLRB,

$34 F.2d 1198, 1200-1201 (2d Cir. 1970), cert. denied, 401 U.S. 993

(1971). The cases petitioner cites, Technicolor Government Services,

Inc. v. NLRB, 739 F.2d 323, 326 (8th Cir. 1984), and King Radio

Corp. \. NLRB, 398 F.2d 14, 20-21 (10th Cir. 1968), do not preclude

that course. Those cases merely hold that, once a union had been cer-

tified, where an employer does not pursue its objections to an election

2. Thecourts of appeals have consistently rejected em-

ployers’ claims of employee turnover as a justification for

refusing to bargain with a Board-certified union during

the certification year. See, e.g., NLRB v. Star Color Plate

Service, 843 F.2d 1507 (2d Cir. 1988), cert. denied, No.

87-2126 (Oct. 3, 1988); NLRB v. Best Products Co., 765

F.2d 903, 913-914 (9th Cir. 1985); NLRB v. Little Rock

Downtowner, Inc., 414 F.2d 1084, 1091 (8th Cir. 1969).

None of the cases cited by petitioner is to the contrary.

Petitioner cites (Pet. 11-14) several courts of appeals

decisions for the proposition that employee turnover, ex-

pansion of the bargaining unit, and the passage of time,

are relevant in determining whether a bargaining order

should be enforced. Those cases, however, are inapposite

since they did not involve a Board certification on the

basis of an election. In each of those cases, the Board had

issued a bargaining order under NLRB v. Gissel Packing

Co., supra. Gissel held that, although Board “elections

are generally the most satisfactory—indeed the pre-

ferred— method of ascertaining whether a union has ma-

jority support,” the Board may issue a bargaining order

without holding an election, or a new election, when it

determines that an employer’s unfair labor practices “have

made [it] unlikely” that a fair election or repeat election

can be held. 395 U.S. at 602, 610. The cases cited by peti-

tioner hold that, in making the determination whether a

fair election can be held, the Board must take into con-

by refusing to bargain with the union in order to obtain judicial

review, the employer cannot later collaterally challenge that certifica-

tion in a subsequent unfair labor practice proceeding. The court stated

in Peabody Coal Co. v. NLRB, 725 F.2d 357, 365 (6th Cir. 1984), that

recognition of a union during the pendency of a certification challenge

might be taken as a waiver of the challenge. But that statement was

dictum, because there was no issue of a conditional offer to bargain

pending the certification challenge.

8

sideration the probable effect of past violations on present

employees. See, e.g., J.J. Newberry Co. v. NLRB, 645

F.2d 148, 153 (2d Cir. 1981). None of the cases cited by

petitioner held that the factors to be considered in that

__context affect the enforceability of a Board order to

bargain with a union that was certified on the basis of an

election, which is the preferred method of determining

whether a union has majority support. Gisse/, 395 U.S. at

602. See, e.g., NLRB v. Star Color Plate Service, supra.

The Board’s decisions cited by petitioner are also dis-

tinguishable. St. Regis Paper Co., 285 N.L.R.B. No. 39

(Aug. 10, 1987), slip op. 5-7, did not involve the certifica-

tion year presumption. It was an accretion case (see 239

N.L.R.B. 688 (1978)), and the Board found that contrac-

tion of the employer’s business, including the closure of

the accreted location, rendered the bargaining order moot.

In St. Bernadette’s Nursing Home, 234 N.L.R.B. 835

(1978), the facility in which the union was certified was

closed for economic reasons during the certification year.

Although some of the represented employees were hired in

a new and substantially larger facility, the Board found

that the union’s certification had not survived the closing,

since the new facility replaced not only the unit in which

the union was certified, but other closed facilities in which

the union had not established any bargaining rights. 234

N.L.R.B. at 837. Molded Fiber Glass Body Co., 182

N.L.R.B. 400 (1970), involved a plant that had perma-

nently closed for business reasons during the certification

year and reopened after that year had elapsed with only a

“handful” of the former employees. The Board found

that, under the circumstances of that case, which included

good faith bargaining by the employer during the certifica-

tion year, there was no reason to extend the period in

Which the union enjoyed an irrebuttable presumption of

9

majority status. 182 N.L.R.B. at 400-401.+ The issue in

Westinghouse Electric & Mfg., 38 N.L.R.B. 404 (1942),

and Renaissance Center Partnership, 239 N.L.R.B. 1247

(1979), was not whether an employer could refuse to

bargain, but whether the Board, in the exercise of its

discretion, would process an election petition within the

certification year. As the court of appeals correctly noted

(Pet. App. B5-B6), Brooks does not entitle an employer

“to vindicate the rights of his employees to select their

bargaining representative” by refusing to honor a certifi-

cation instead of seeking recourse before the Board. 348

U.S. at 103. In any event, Westinghouse and Renaissance

Center Partnership are factually inapposite.°

* In citing Molded Fiber Glass, petitioner quotes (Pet. 9) from the

decision of the administrative law judge, 182 N.L.R.B. at 403, but the

AL/J’s reasoning on that issue was not adopted by the Board. /d. at

400-401.

> In Westinghouse, in directing a representation election in the face

of a projected quadrupling of the employee complement, the Board

indicated that, if the size of the unit did grow as projected, the Board

would process a representation petition filed by a rival union during

the certification year. 38 N.L.R.B. at 409. Contrary to petitioner’s

contention (Pet. 13), the decisive factor in Renaissance Center Part-

nership was not an increase in the size of the bargaining unit, but

rather the fact that the consolidation of the recently certified unit with

a larger unit of unrepresented employees in the same job classification

had “completely obscured the separate identity of the certified

bargaining unit” (239 N.L.R.B. at 1248). In this case, by contrast, the

Board expressly found that “the separate community of interest and

identity” of the original bargaining units had not been affected by any

intervening events. Pet. App. D18.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROSEMARY M. COLLYER

General Counsel

D. RANDALL FRYE

Associate General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

CARMEL P. EBB

Attorney

National Labor Relations Board

JANUARY 1989

tx US GOVERNMENT PRINTING OFFICE 1988—241-699/00036