Opposition — Tama Meat Packing Corp. v. National Labor Relations Board

No. 80-247 Supreme Court, U. 8,

FILED

5 3 1980

In the Supreme Court of the United States

MICHAEL RODAK, JR., CLERK

OCTOBER TERM, 1979

TAMA MEAT PACKING CORP., 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

WADE H. McCreg, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

WILLIAM A, LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E, ALLEN

Acting Associate General Counsel

NorTon J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

WILLIAM M, BERNSTEIN

Attorney

National Labor Relations Board

Washington, D.C. 20570

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 80-247

TAMA MEAT PACKING CORP., PETITIONER

Vv.

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

QUESTION PRESENTED

Whether the Board abused its discretion in determining,

without holding an evidentiary hearing, that the Union’s

offer during an election campaign to waive initiation fees

after a collective bargaining agreement is reached was not

improper.

Il

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Altman Camera Co. v. NLRB, 511 F. 2d

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NLRB vy. Dunkirk Motor Inn, Inc., 524 F. 2d

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NLRB v. Golden Age Beverage Co., 415

te aos dss acid eaks onpadubeneboonobontioeges 4

NLRB vy. Gr /ith Oldsmobile, Inc., 455 F. 2d

Be Asi sides donate necckavdeys sanded iioniabuebeeadveses 4

NLRB vy. L.D. McFarland Co., 572 F. 2d

256, cert. denied, 439 U.S. O11 cue eeeeeeeeeee 3

NLRB v. S & S Product Engineering wm,

de EEE Mk EURO, ‘unsvdcadcdnccoswesscncsscansctesedecensss 3

NLRB vy. Savair Mfg. Co., 414 U.S. 270 ...... a2

NLRB v. Stone & Thomas, 502 F. 2d 957 ........ 3

NLRB vy. Wabesh Transformer Corp., 509

F. 2d 647, cert. denied, 423 U.S. 827 .............. 3

Ill

Page

Cases—Continued:

Thrift Drug v. NLRB, 521 F. 2d 243, cert.

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Universal Camera Corp. v. NLRB, 340 U.S.

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Statute and regulation:

National Labor Relations Act, 29 U.S.C.

Sec. 151 et seq.:

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Section 8(a)(5), 29 U.S.C. 158(a)(5) wn. eens 2

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OPINIONS BELOW

The order of the court of appeals (App. la-2a, infra)

is not reported. The decision and order of the National

Labor Relations Board (Pet. App. A-40 to A-52) are

reported at 242 N.L.R.B. No. 43. The underlying

representation decision (Pet. App. A-38 to A-39) is not

reported.

JURISDICTION

The judgment of the court of appeals was entered on

June 9, 1980. The petition for a writ of certiorari was filed

on August 15, 1980. The jurisdiction of this Court is

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

STATEMENT

Pursuant to a_ representation petition filed by

Amalgamated Meat Cutters and Butcher Workmen of

North America, AFL-CIO, Local P-46 (“the Union”), the

Board conducted a representation election among

petitioner’s production and maintenance employees,

which the Union won by a vote of 94 to 59 (Pet. App. A-

42).! Petitioner filed a timely objection to the election,

alleging that the election results were invalid because the

Union had made an “unlawful waiver of initiation fees”

(id. at A-4, A-42). The objection was based solely upon

the following portion of a Union flyer mailed to

employees shortly before the election (id. at A-4 to A-5):

Q. Will we have to pay the initiation fee after our new

contract is negotiated and we accept it?

A.No! Your local Union will waive the customary

initiation fee for all the employees on the Employer’s

‘There were 25 chailenged ballots. The challenges were not resolved |

because the number of disputed ballots was insufficient to affect the

outcome of the election (Pet. App. A-42).

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payroll at the time your new contract is accepted by

you. This is done because of the extra effort you have

given in your struggle to win your NLRB election

and negotiate your Union contract. =

After an administrative investigation, the Board’s

Regional Director found no impropriety in the Union’s

waiver offer and therefore recommended that the

objection be overruled (Pet. App. A-1 to A-6). The Board

issued a Decision and Certification of Representative,

rejecting petitioner’s exceptions to the Regional Director’s

Report and ruling that no factual issues had been raised

that required an evidentiary hearing (id. at A-38 to A-39).

Despite this certification of the Union, petitioner

refused to bargain. The Board found that its refusal

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

Relations Act, 29 U.S.C. 158(a)(5) and (1) (Pet. App. A-

43, 48). Accordingly, the Board ordered petitioner to

bargain with the Union (id. at A-49 to A-50). The court of

appeals enforced the Board’s order, finding it to be

supported by “substantial evidence” and “not arbitrary or

capricious” (App. la, infra).

ARGUMENT

Petitioner :gnmtends (Pet. 8-14) that the Union’s offer to

waive the initiation fee was improper under NLRB vy.

Savair Mfg. Co., 414 U.S. 270 (1973). This contention is

without merit. In Savair, this Court held that “permitting

the union to offer to waive an initiation fee for those

employees signing a recognition slip prior to the election

* * * allows the union to buy endorsements and paint a

false portrait of employee support during its election

campaign.” /d. at 277. The Court recognized, however,

that a union has a “legitimate” interest in waiving its usua!

initiation fee that may properly be served by making such

a waiver “available not only to those who have signed up

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with the union before an election but also to those who

join after the election.” /d. at 274 n.4. The courts of

appeals uniformly have held that unconditional offers to

waive fees for employees currently in the workforce are

not improper inducements under Savair and therefore do

not interfere with employee free choice in representation

elections. See, e.g., NLRB v. L.D. McFarland Co., 572 F.

2d 256 (9th Cir.), cert. denied, 439 U.S. 911 (1978); NLRB

v. Wabash Transformer Corp., 509 F. 2d 647, 649-650

(8th Cir.), cert. denied, 423 U.S. 827 (1975); Altman

Camera Co. v. NLRB, 511 F. 2d 319, 322 (7th Cir. 1975);

NLRB v. S & S Product Engineering Services, Inc., 513

F. 2d 1311, 1312-1313 (6th Cir. 1975); Thrift Drug v.

NLRB, 521 F. 2d 243, 244 (Sth Cir. 1975), cert. denied,

425 U.S. 911 (1976); NLRB v. Stone & Thomas, 502 F. 2d

957, 958 (4th Cir. 1974); NLRB v. Dunkirk Motor Inn,

Inc., 524 F. 2d 663, 665 (2d Cir. 1975).

Petitioner does not dispute this legal principle. Rather,

it contends that the Board, upheld by the court of

appeals, incorrectly found the Union’s waiver offer to be

unconditional whereas, in fact, the flyer indicated that the

fee would be waived only for employees who supported

the Union prior to the election. This argument involves

only the application of settled principles to the facts of

this particular case and consequently does not warrant

further review by this Court. Universal Camera Corp. v.

NLRB, 340 U.S. 474, 490-491 (1951).

Moreover, the Board correctly found that the waiver

offer clearly applied unconditionally to all employees and

therefore was proper under the Savair standard.

Petitioner concedes (Pet. 11) that the second sentence of

the offer—“[yJour local Union will waive the customary

initiation fee for all employees on the employer's payroll

at the time your new contract is accepted by you”—is

unobjectionable. Petitioner contends (Pet. 10-13),

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however, that the third sentence—"“(t]his is done because

of the extra effort you have given in your struggle to win

your NLRB election and negotiate your Union

contract”—suggests that the offer was available only to

those employees who supported the Union before the

election despite the clarity of the prior sentence that the

offer was uniformly available to all employees on the

payroll at the time of the contract ratification. There is no

merit to this contention. The third sentence merely gives

the reason for the promise to waive initiation fees, which

was something that had already taken place, i.e., the

“extra effort [the employees] have given” in the struggle to

win the election and secure a collective bargaining

agreement with their employer. Unlike the initiation fee

waiver struck down in Savair, supra, the Union’s

announcement did not require any action on the part of

the employees in order to benefit from the Union’s pledge

to waive initiation fees, and there is no suggestion that an

employee would be treated differently depending upon

whether he committed himself to the Union before or

after the election. The Board’s decision to this effect,

based on what petitioner’s expert concedes (Pet. 13) to be

the literal meaning of the flyer, plainly is based upon

substantial evidence.’

Petitioner also suggests (Pet. 14) that it was improperly deprived

of an evidentiary hearing on its objections. Section 102.69(d) of the

Board’s Rules and Regulations, 29 C.F.R. 102.69%(d), provides for a

hearing when an administrative investigation reveals that “substantial

and material factual issues exist.” It is well settled that this qualified

right to a hearing satisfies all statutory and constitutional re-

quirements. See, e.g., NLRB v. Golden Age Beverage Co., 415 F. 2d

26, 32-33 (Sth Cir. 1969). Here, the facts relating to the offer

contained in the flyer were undisputed. The controversy concerned

only the correctness of the Regional Director’s inferences and

conclusions based on those facts. Thus the Board was clearly

warranted in overruling the objection without a hearing. See, e.g.,

NLRB vy. Griffith Oldsmobile, Inc., 455 F. 2d 867, 868-869 (8th Cir.

1972).

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCreg, JR.

Solicitor General

WILLIAM A. LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E, ALLEN

Acting Associate General Counsel

NorTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

WILLIAM M. BERNSTEIN

Attorney

National Labor Relations Board

SEPTEMBER 1980

DOJ-1980.09

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1563

September Term, 1979

Filed JUN 09 1980

TAMA MEAT PACKING CORPORATION, PETITIONER

V.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

Petition to Review and Cross-Application to Enforce

an Order of the National Labor Relations Board.

Before: WRIGHT, Chief Judge, WALD, Circuit

Judge, and MARKEY,* Chief Judge of the United States

Court of Customs and Patent Appeals.

ORDER

This cause came on to be heard on the record from the

National Labor Relations Board and was argued by

counsel. While the issues presented occasion no need for

an opinion, they have been accorded full consideration by

the Court. See Local Rule 13(c).

This Court is of the view that the order of the National

Labor Relations Board is supported by substantial

evidence, is not arbitrary or capricious, and is otherwise

free of reversible legal error.

*Sitting by designation pursuant to 28 U.S.C. § 293(a) (1976).

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On consideration of the foregoing, it is ORDERED

and ADJUDGED by this court that the petition for

review of the Board’s order is hereby denied, and the

Board’s cross-application for enforcement of its order is

hereby granted.

Per Curiam

For the Court

/s/ George A. Fisher

GEORGE A. FISHER

Clerk