# Opposition — Tama Meat Packing Corp. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0268%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 920 ## Text 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 SE SEINE asin adcissbsshonsnsenevccsebonsesnensiontoceveveosnenccitone | I cid cliche. |... enndavanceundoceveucnpaenealiveeenvbenbe l iad ais sobs mich abia bavnehpesvboneedneeveoaeseutos l ITY Sibdani ela pukuheanasignavsdpebtersaesickasascepstnadiusinsenantes 2) RE TERESI SLEEP oe ROSIN 2 ORO RRO Te 5 Anas e lillie iasueniicevovniadininssgedisibacasesebonccbdeosoeeeds la TABLE OF AUTHORITIES Cases: Altman Camera Co. v. NLRB, 511 F. 2d I Tics cal ibs wuksh Uhabadsndsund debenicaeiteeennenp eared senees 3 NLRB vy. Dunkirk Motor Inn, Inc., 524 F. 2d eens ctstkcensdcgnenanticedbicnceptiasdessecsousde 3 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. I, Gar Ahan. DES shcciiissdeveccabensstsencsboinivisssons 3 Universal Camera Corp. v. NLRB, 340 U.S. SUP ale heen eidanes abd vnnvedemnubayraneiisapiabsnatcdubonéaneyees 3 Statute and regulation: National Labor Relations Act, 29 U.S.C. Sec. 151 et seq.: Section 8(a)(1), 29 U.S.C. I58(a)(1) ..... eee eeeee 2 Section 8(a)(5), 29 U.S.C. 158(a)(5) wn. eens 2 eas: STE) cékiissd cciasuncndaticicgniidececsacdousipieenen 4 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). l 2 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 3 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), 4 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). 5 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). la 2a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0268%3A2. Public record. Not legal advice.