Opposition Brief — Kessel Food Markets, Inc. v. National Labor Relations Board

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ais 504 4G at jut 14 1989

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In the Supreme Court of the United States

KESSEL FOOD MARKETS, INC. AND ra

KESSEL FOOD STORES, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD, ET AL.,

Respondent.

BRIEF OF RESPONDENTS,

UFCW LOCALS 876 AND 539,

IN OPPOSITION TO PETITION

*FOR WRIT OF CERTIORARI

Counsel of Record:

THEODORE SACHS

SACHS, NUNN, KATES,

KADUSHIN, O'HARE,

HELVESTON & WALDMAN, PC

1000 Farmer

Detroit, Michigan 48226

-s,. (313) 965-3464

‘Attorneys for Respondent

Local 876, United Food and

Commercial Workers

International Union,

AFL-CIO, CLC

ROGER J. McCLow

KLIMIST, McKNIGHT, SALE &

McCLow, PC.

Suite 614

26211 Central Park Blvd.

Southfield, Michigan 48076

(313) 354-9650

Attorneys for Respondent

Meat Cutters Local 539,

United Food and

Commercial Workers

International Union,

AFL-CIO, CLC

BEST AVAILABLE COPY

COUNTER STATEMENT OF QUESTION PRESENTED

Where the National Labor Relations Board, pursuant to stat-

ute, authorized a request by its Regional Director for a prelim-

inary injunction based on a probable cause standard, was the

respondent (Petitioner here) denied due process because the

Board, after an extended due process hearing before an admin-

istrative law judge, eventually decided the underlying unfair

practice charge on its merits?

The Sixth Circuit held no.

Respondents, UFCW Locals 539 and 876, agree.

II

LIST OF CORPORATE AFFILIATIONS

Local 876 and Local 539 are both voluntary unincorporated

associations. Both are affiliated with the United Food and

Commercial Workers International Union, AFL-CIO, CLC.

Ill

TABLE OF CONTENTS

COUNTER STATEMENT OF QUESTION PRESENTED

LIST OF CORPORATE AFFILIATIONS ..............

a gy ky: | a era

COUNTER STATEMENT OF THE CASE .............

RO ee ee

A. The Board Did Not Prejudge Kessel ..........

B. Even If The Board Had Made A Preliminary

Determination That The Act Was Violated This

Would Not Have Deprived Kessel Of Due

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IV

INDEX OF AUTHORITIES

Cases

Aetna Life Insurance Co. v. Lavoie, 475 US. 813

5 Serene ere Sree eee ee ren

Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th

Ce SED ce ve ce eK CCU ae shemale kam Soe eee y ts

Eisenberg v. Holland Rantos Co., 234 N.L.R.B. 726, aff'd,

Geo £20 100 (ord Cie. OTS) one ccc ccc ennvcdiass.

Federal Trade Commission v. Cement Institute, 333 US.

ee EE Bea ee ike ree oe ne eee eee 4,

Hortonville Dist. v. Hortonville Ed. Assoc., 426 U.S. 482

Ps ta ee Re ee en eae

Levine v.C & W Mining Co., 610 F.2d 432 (6th

ORR. | NARI ey RMN Pipher Rar ee as Se ASN EE Ae l,

NLRB v. Sanford Homes for Adults, 669 F.2d 35 (2nd

ee IS hn rr ee a ee Pe aa tea ang dal oe

United States v. Morgan, 313 U.S. 409 (1941) ........

Withrow v Larkin, 421 US. 35 (1975) .............. 3, 4,

Statutes

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In the Supreme Court of the United States

KESSEL FOOD MARKETS, INC. AND

KESSEL FOOD STORES, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD, ET AL.,

Respondent.

BRIEF OF RESPONDENTS, UFCW LOCALS 876 AND 539,

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

COUNTER STATEMENT OF THE CASE

On March 16, 1982, the General Counsel of the National Labor

Relations Board, by the Regional Director for the Seventh Region

of the Board, filed a complaint, alleging that Kessel Food Mar-

kets, the Petitioner herein, had violated the National Labor

Relations Act. A hearing was scheduled for September 20, 1982.

The Charging Parties in the unfair labor practice proceeding,

Locals 40 and 539 of the United Food & Commercial Workers

International Union (Local 40 has since merged with Local

876), requested that the Board authorize the seeking of interim

injunctive relief, in accordance with 29 U.S.C. §160(j), §10G) of

the Act. This request was considered by the Board, which

examines §10(j) requests to determine whether there is rea-

sonable cause to believe that the Act has been violated and

whether there will be irreparable injury if temporary relief is

not sought and granted. Levine v. C & W Mining Co., 610 F2d

432 (6th Cir. 1979). The Board authorized the seeking of an

injunction against the Petitioner. The matter was then referred

back to the Regional Director of the Seventh Region, Bernard

(1)

2

Gottfried, who on July 9, 1982 filed a complaint in the United

States District Court for the Eastern District of Michigan seek-

ing injunctive relief. (Appendix p. A137) The Regional Director

declared in his sworn complaint that he had reasonable cause

to believe that the Act was violated in the ways set forth in

the March 16, 1982 administrative complaint.

The Board withdrew its request for §10(j) injunctive relief

on September 10, 1982, after the district judge ordered exten-

sive discovery. The trial commenced on September 20, 1982,

and continued in 1982, and in 1983, for approximately 20 hear-

ing days. The General Counsel presented witnesses whom Peti-

tioner Kessel cross-examined. Petitioner Kessel called numerous

witnesses in its own behalf. Petitioner Kessel filed an extensive

brief to the administrative law judge and later to the National

Labor Relations Board, arguing that it had not violated the Act.

The administrative law judge, and then later the Board, found

that some of the alleged violations had occurred and found

that other of the alleged violations had not occurred. The Sixth

Circuit Court of Appeals affirmed.

ARGUMENT

Locals 876 and 539, United Food & Commercial Workers

International Union, respectfully pray that Kessel Food Mar-

kets’ petition for a writ of certiorari be denied. There are no

special and important reasons for granting it. The courts of

appeal are in agreement on the issue presented. There is no

important question of federal law. The decision of the Court

of Appeals is fully consistent with all applicable decisions of

this Court.

A. The Board Did Not Prejudge Kessel.

Kessel misstates a critical fact in its petition to this Court.

Kessel says that the National Labor Relations Board (the Board

or NLRB) declared in its District Court pleadings that it believed

that Kessel had violated the law. In fact, the Board did not

make any declaration. The Board did not itself file the district

court action. The statements to which Kessel refers were made

by the Regional Director of the Seventh Region of the Board.

3

§10(j) of the National Labor Relations Act, 29 U.S.C. §160(j),

requires that the Board authorize the seeking of §10(j) interim

relief. The test applied by courts in determining the propriety

of §10(j) relief is whether there is reasonable cause to believe_

that unfair labor practices have been committed and that irre-

parable injury will ensue in the absence of such relief. Boire

v. Pilot Freight Carriers, Inc., 515 F2d 1185 (5th Cir. 1975);

Levine v. C & W Mining Co., 610 F2d 432 (6th Cir. 1979). This

is, of course, the standard which the NLRB applies in detiding

whether to authorize the seeking of such relief and it is pre-

sumably the standard which was applied in the instant case.

Having made the decision to seek §10(j) relief, the Board referred

the matter back to the Regional Director and it was he who

initiated the suit. As can be seen from the first page of the

district court pleadings, A137 of the Appendix, it was Bernard

Gottfried, Regional Director of the Seventh Region of the NLRB,

who was the petitioner. In the pleadings Mr. Gottfried stated

that he had reasonable cause to believe that the charges of

unfair labor practices were true. There is absolutely no indi-

cation that the Board made any determination other than that

there was reasonable cause to believe that the Act was violated.!

B. Even If The Board Had Made A Preliminary

Determination That The Act Was Violated This Would

Not Have Deprived Kessel of Due Process.

The Sixth Circuit Court of Appeals relied upon and exten-

sively quoted from this Court’s decision in Withrow v. Larkin,

421 U.S. 35 (1975), wherein this Court held that a statutory

scheme which combined investigatory and adjudicatory func-

tions did not deprive the complainant of due process. Kessel’s

asserted reliance upon Withrow is totally misplaced and rests

' Furthermore, there was complete turnover on the five person Board between

August, 1982, when the §10(j) petition was authorized, and December, 1987,

when the Board’s decision issued, so the persons who decided the case had,

in fact, never previously considered it. The 47th annual report of the NLRB

for fiscal year ending September 30, 1982 lists the Board members as

VanDerWater, Fanning, Zimmerman, Jenkins and Hunter. The 52nd annual

report of the NLRB for fiscal vear ending September 30. 1987 lists the Board

members as Dotson, Johansen, Stephens, Babson and Cracratt. (The decision

in this case was signed by merabers Dotson, Johansen and Stephens. )

4

on a few quotations taken out of context. In Withrow, it was

observed that it was common for a judge to preside over a

matter where he had previously decided whether to grant tem-

porary relief and, further, that “[i]t is also very typical for the

members of administrative agencies to receive the results of

investigations, to approve the filing of charges or formal com-

plaints instituting enforcement proceedings, and then to par-

ticipate in the ensuing hearings.” Jd. at 56. These situations

would not establish impermissibie prejudgment because at the

eventual hearing there would be the opportunity to fully liti-

gate the matter.

Withrow relied on Federal Trade Commission v. Cement

Institute, 333 U.S. 683 (1947), which fully supports the decision

of the Sixth Circuit below. In Cement Institute the cement

companies argued for the disqualification of the FTC as the

adjudicator of complaints against them alleging unfair meth-

ods of competition. They cited reports made by the FTC com-

missioners to Congress and testimony made by some of the

commissioners in which they had stated that the method of

pricing used in the cement industry was a violation of the

Sherman Act. This Court said that it would assume that all of

the commissioners had formed the opinion that the companies’

conduct violated the law, and then went on to conclude that

such opinions would not require the disqualification of the

FTC. The Court concluded that the entertainment of views of

guilt, resulting from the investigations, would not indicate irrev-

ocably closed minds, and observed that the companies would

have the opportunity to fully litigate the charges against them

and to convince the FTC that their business practices were

valid.’

* Withrow v. Larkin and FTC v. Cement Institute were relied upon by this

Court in Hortonville Dist. v. Hortonville Ed. Assoc., 426 U.S. 482, 493 (1976),

where the Court said, “Nor is a decision maker disqualified simply because

he has taken a position, even in public, on a policy issue related to the

dispute, in the absence of a showing that he is not ‘capable of judging a

particular controversy fairly on the basis of its own circumstances. “United

States v. Morgan, 313 U.S. 409, 421 (1941).” In Aetna Life Insurance Co. v.

Lavoie, 475 U.S. 813 (1986), this Court again relied on Cement Institute and

observed that only in the most extreme cases of bias or prejudice would

disqualification be constitutionally required.

5

In the instant case, Kessel had the opportunity at extended

unfair labor practice hearings to present witnesses, to cross-

examine witnesses presented by the General Counsel, to sub-

mit documentary evidence, and to argue both orally and in

extensive briefs that its conduct was not violative of the National

Labor Relations Act. The Board did not impermissibly prejudge

the matter simply by authorizing the Regional Director to seek

interim relief prior to the unfair labor practice trial. The two

courts of appeal which have considered this issue have held

that the §10(j) procedure did not deprive litigants of due pro-

cess. NLRB v. Sanford Home for Adults, 669 F.2d 35 (2nd Cir.

1981); Eisenberg v. Holland Rantos Co., 234 N.L.R.B. 726, aff'd,

583 F.2d 100, 104 n.8 (3rd Cir. 1978). There is no contrary appel-

late court authority.

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CONCLUSION

For the reasons set forth above, the petition for writ of cer

tiorari should be denied

Respectfully submitted

COUNSEL OF RECORD

SACHS, NUNN, KATES, KAI

O'HARE, HELVESTON &

WALDMAN, PC

THEODORE SACHS (P19827

1000 Farmer Street

Detroit, Michigan 48226

(313) 965-3464

Attorneys for Respondent

Local 876, United Food and

Commercial

Workers International Union

AFL-CIO, CLC

ROGER J. McCLow (P2717

Suite 614

26211 Central Park Blvd

Southfield, Michigan 48076

313) 354-9650

Attorneys for Respondent

Meat Cutters Local 539, United

Food and Commercial Workers

International Union, AFL-CIO

ind CL

pated pul