Opposition — National Labor Relations Board v. H & D, Inc.

: Office-Supreme Courk, U.S.

Beh ED

JUN 1 198!

ALEXANDER UL. STEVAS,

CLERK

NO. 80-1498

IN THE

Supreme Court of the United States

OCTOBER TERM 1980

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Ve

H & D, INC.,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHORT & CRESSMAN

3000 Seattle-First National

Bank Building

Seattle, Washington 98154

(206) 682-3333

By: JAMES A. OLIVER

NO. 80-1498

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

H & D, INC.,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

QUESTION PRESENTED

Whether an impasse in collective

bargaining negotiations justifies an

employer's unilateral withdrawal from

bargaining.

TABLE OF CONTENTS

Statement of the Case ....+ +s -

Summary of Argument ....++-++s-s.

Argument . . oe e e eo oO @ . . a . . o .

Comolupaem «s&s 6«eeeseceeveeee

aa

TABLES OF AUTHORITY

Table of Cases

Authorized Air Conditioning Co. v.

NLRB, 606 F.2d 899 (9th Cir.),

oere denied, 455 U.S. 950, 100

Ct. 1598, 63 L. Ed. ed 785

13

{i980} e * 2° @ e e ° o . . e ° -11-12

Fairmont Foods Co. v. NLRB, 471 F.2d

1170 (8th Cir.1 1972) ..+.+-e-ee-e

H & D, Inc., 240 N.L.R.B. No. 161

(1979). ° ° . . . ° . . . . . . . .

Jaime Andino eis Fe Jamie Andino

~—Prucking, 619 F. st Cir.

1980) .

NLRB v. Acme Wire Works, Inc., 582

F.2d 158 (2d Cir. 1978) ...s.ee-s

NLRB v. Associated Shower Door Co.,

512 F.2d 230 (9th Cir.), cert.

denied, 423 U.S. 893, 96 S. Ct.

12

12

191, 46 L. Ed. 24 125 (1975). . . .11,12

NLRB v. Beck Engraving Co., 522 F.2d

Cc Le es eo - . oa a o . -

ll

ii

Page

N.L.R.B. v. Charles D. Bonanno Linen

Service, Inc., 243 N.L.R.B. No. 140,

enforced, 630 F.2d 25 (lst Cir.

1980), petition for cert. pending,

No. 80-931 . . * . . . . . . . . 8-9, 12

NLRB v. Hi-Way Bulletin, Inc., 206

N.L-R.B. 22 (1973), enforcement

denied, 500 F.2d 181 (5th Cir.

1974) . . . . . . 7 . . . . . . . . 5,11

NLRB v. Independent Ass'n of Steel

~~ Pabricators, 1 tne. 582 F.2d 135

d Cir. 1978) . . 7 . _ . . . . ll

N.L.R.B. v. Marine Machine Works,

635 F.2d 522 (5th Cir. 1981)... 9,12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

oH & D, INC., ‘

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATEMENT OF THE CASE

l. H & D, Inc., is a Washington corpora-

tion engaged in the manufacture of aluminum

doors and windows. For the time period

preceding the dispute which gave rise to

this case, the lronworkers Shopmen Local

Union No. 506 served as the collective

bargaining representative for about one

half of H & D production employees. As a

2

general practice in prior contract negoti-

ations with the union, H & D would bargain

jointly with two other employers, Bel-Win-

dow and Herzog Aluminum Co., even though

there was no duly organized employer's

bargaining unit, nor any formal bargaining

agreement.

The negotiations which gave rise to

this action began in early 1977 when the

union sent out reopening letters and

contract proposals to H & D, Bel-Window,

and Herzog Aluminum for a contract to

succeed the agreement that was to expire

later that year. Between the first bar-

gaining session on February 22 and April

20, seven bargaining sessions were held

without substantial agreement as to the

terms of the new contract. Two employer

proposals were decisively rejected by the

union members. On April 25, a third

employer's proposal was submitted to the

union membership for ratification but was

3

defeated by a vote of 28 to 14. The union

then unanimously elected to strike and

commenced picketing two days later.

During the negotiations for a new

contract, the H & D employee union members

met severai times to discuss their dissat-

isfaction with their union representation.

When an employer proposal was rejected on

April 2, almost all of the H & D employees

submitted written resignations from the

union and attempted to file a decertifica-

tion petition with the NLRB. The decerti-

fication petition was apparently proced-

urally defective and was later withdrawn by

the employees. None of H & D's employees

participated in the strike authorized by

the April 25 vote.

On April 18, H & D asked to withdraw

from negotiations because of its employees’

resignation from the union, but the union

would not consent. At the beginning of

May, several days after the strike began,

a

the union proposed resubmitting the con-

tract, rejected by the rank-and-file on

April 25, for a vote on May 3. The recon-

sideration vote was scheduled but then

cancelled. The general manager of H & D

notified the union by a letter dated May 3

that a bargaining impasse had been reached

when the union suggested a second vote on a

prior proposal which had been turned down

by the membership, and because of the

impasse they were withdrawing from the

contract negotiations.

2. ‘The union subsequently filed charges

against H & D for refusing to bargain as

part of the multiemployer group, and a

hearing was had before the administrative

law judge on August 18, 1977. The admini-

strative law judge found that H & D had not

committed an unfair labor practice by

withdrawing from the joint negotiations

because there was no multiemployer bargain-

ing unit as defined by the National Labor

5

Relations Board decision. Finding of

Fact and Conclusions of Law of Administra-

tive Law Judge Sahm, October 3, 1978.

Petitioner's App. C, 50a. The administra-

tive law judge did not make a finding

concerning an impasse in negotiation

because of the NLRB's decision in NLRB v.

22 (1973), enforcement denied, 500 F.2d 181

(5th Cir. 1974) where the Board indicated

that even a genuine impasse did not create

an "unusual circumstance" allowing the

unilateral withdrawal of an employer from

bargaining. Nor did the administrative law

judge address H & D's contention that tne

en masse resignation of its employees from

the union created an “unusual circumstance”

justifying withdrawal from negotiations.

3. On review before the NLRB the Board

rejected the administrative law judge's

conclusion that there was no multiemployer

6

bargaining unit at the time of H & D's

withdrawal, but instead found that based on

the controlling history of the collective

bargaining an employer bargaining unit did

exist. Addressing the contention that the

bargaining impasse created an “unusual

circumstance" justifying H & D's with-

drawal, the Board summarily concluded “that

the evidence does not estabJish that an

impasse existed. ..." H & D, Inc.,

240 N.L-.R.B. No. 161, p. 3 (1979).

Finally, the Board concluded that the

resignation of H & D's employees from the

union did not create an "unusual circum-

stance" allowing its withdrawal. The Board

ordered H & D to bargain with the Union as

representatives of its employees in the

established multiemployer unit. Peti-

tioner's App. C, lla-18a.

4. The court of appeals found that a

bargaining impasse did exist at the time of

H & D's withdrawal. The court held that an

‘i

impasse is an “unusual circumstance” that

justifies an employer's otherwise untimely

withdrawal, and accordingly denied enforce-

ment of the Board's order. Petitioner's

App. A, 6a-9a. The court did not find it

necessary to reach the question of whether

a multiemployer bargaining unit existed or

whether the en masse resignation of H & D's

employees from the union was an “unusual

circumstance" permitting employer with-

drawal. Petitioner's App. A, 9a.

SUMMARY OF ARGUMENT

The petition for a writ of certiorari

should not be granted in this case because

there is not a genuine conflict among the

federal courts of appeals decisions regard-

ing whether an impasse in collective

bargaining negotiations justifies an

employer's unilateral withdrawal from

bargaining.

8

ARGUMENT

A review on certiorari "is not a

matter of right, but of judicial discre-

tion", and "will be granted only when there

are special and important reasons". R.

17.1. Differences among federal courts of

appeals will not likely be accepted as a

sufficient conflict to warrant the granting

of a petition for a writ of certiorari "if

they can fairly be accounted for on the

basis of variations in the factual situ-

ation among the cases involved". Harlan,

Manning The Dikes (1958) 13 Record NYCBA

541, 552.

The petitioner cites two court of

appeals decisions which hold that the

occurrence of an impasse in the course of

collective bargaining does not enable an

employer unilaterally to withdraw from

bargaining, N.L.R.B. v. Charles D.

Bonanno Linen Service, Inc., 243 N.L.R.B.

9

No. 140, enforced, 630 F.2d 25 (lst Cir.

1980), petition for cert. pending, No.

80-931, and N.L.R.B. v. Marine Machine

Works, 635 F.2d 522 (5th Cir. 1981). Both

of those cases are factually different from

the case involved in this petition.

First, in both of these cases cited by

the petitioner, the employer was a member

of a multiemployer group. The court of

appeals in this case did not decide whether

or not H & D was a member of such a group.

Petitioner's App. A, 9a. Such a distinc-

tion would make a difference as to whether

an impasse would justify unilateral em-

ployer withdrawal from bargaining. If H &

D was not a member of a multiemployer

group, its actions in withdrawing would not

affect the negotiations of any other

employer in the group or the ultimate

acceptability of any agreement reached by

the employers who continued to bargain, as

was the case in Charles D. Bonanno, supra.

10

The second factual difference is that,

in both of these cases cited by the

petitioner, the court is careful to note

that, after the bargaining impasse had been

reached, no interim agreement was reached

between the union and any employer nor was

any such arrangement seriously attempted.

In the present case, the employees of H & D

evidenced their intent to reach an agree-

ment by their unsuccessful attempt to

resign from the union and file a decertifi-

cation petition. The importance of this

factual difference is explained in several

cases. Allowing the union to reach interim

agreements with individual employers in a

multiemployer bargaining unit, and not

allowing the other employers to withdraw

from bargaining when an impasse had been

reached, leaves the members of the multi-

employer group without interim agreements

watching "certain of their withdrawing

competitors resume business while they

ll

themselves were still in the throes of an

economic strike." NLRB v. Independent

Ass'n of Steel Fabricators, Inc., 582 F.2d

135, 147 (2d Cir. 1978). See also, NLRB

v. Hi-Way Billboards, Inc., 500 F.2d

181 (5th Cir. 1974); NLRB v. Associated

Shower Door Co., ,512 F.2d 230 (9th Cir.),

cert. denied, 423 U.S. 893, 96 S. Ct.

191, 46 L. Ed. 2d 125 (1975). The court

in NLRB v. Beck Engraving Co., 522 F.2d

475, 483 (3d Cir. 1975) stated the problem

as follows:

The union . . . should not have

been given two weapons for its

economic arsenal (i.e. the selective

strike and individual negotiations)

while the employers are given only

one (viz., the lockout).

To correct this imbalance, the courts have

allowed the employers to have the ability

to withdraw from bargaining up... impasse.

Authorized Air Conditioning Co. v. NLRB,

606 F.2d 899 (9th Cir.), cert. denied,

455 U.S. 950, 100 S. Ct. 1598, 63 L. Ed. 2d

12

785 (1980); Fairmont Foods Co. v. NLRB,

471 F.2d 1170 (8th Cir. 1972); Jaime

Andino d/b/a Jamie Andino Trucking, 619

F.2d 147 (lst Cir. 1980); NLRB v. Acme

Wire Works, Inc., 582 F.2d 158 (2d Cir.

1978).

With the distinguishable exceptions

of Charles D. Bonanno, supra, and Marine

Machine Works, supra, all of the other

cases cited by the petitioner in their

petition, and all the cases found by the

respondent in the course of research, hold

that the occurrence of a genuine impasse

does justify an employer's unilateral

withdrawal from bargaining. Two of the

above cited cases, NLRB V. Associated

Shower Door Co., and Authorized Air

Conditioning Co., are both Ninth Circuit

decisions and a writ of certiorari was

denied in both cases, in one case in

1980.

13

CONCLUSION

For the foregoing reasons, this

petition for a writ of certiorari should be

denied.

Respectfully submitted,

SHORT & CRESSMAN

By: JAMES A. OLIVER