Opposition Brief — Houston Building Service, Inc. v. National Labor Relations Board

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No. 91-597

In The ) a

Supreme Court of the United States

_

_—

October Term, i991

HOUSTON BUILDING SERVICE, INC.,

Petitioner,

ke

NATIONAL LABOR RELATIONS BOARD and UNLICENSED

DIVISION OF DISTRICT NO. 1, MEBA/NMU, AFL-CIO,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION FOR RESPONDENT UNLICENSED

DIVISION OF DISTRICT NO. 1, MEBA/NMU, AFL-CIO

GEORGE J. CAPPIELLO, JR.

Counsel of Record

SIDNEY H. KALBAN

PHILLIPS CAPPIELLO KALBAN

HOFMANN & KATZ, P.C.

Attorneys for Respondent

Unlicensed Division of Disirict No. 1,

MEBA/NMU, AFL-CIO

360 West 31st Street

New York, New York 10001

(212) 465-8840

[etz * NJ (908) 257-6850¢(800) 3 APPEAL*NY (212) 840-4640¢MA (617) 542-1114

elate ne, OC (202) 783-7288*PA (215) 925-6500*USA (800) 5 APPEAL

QUESTIONS PRESENTED

1. Whether the finding and conclusion of the National Labor

Relations Board that Houston Building Services, Inc. (‘‘HBS’’),

had an obligation to recognize and bargain with the Unlicensed

Division of District No. 1, MEBA/NMU, AFL-CIO%, is supported

by substantial evidence in the record when considered as a whole.

2. Whether the Board’s conclusion that HBS unlawfully

changed terms and conditions of employment without first

bargaining with the Union is supported by substantial evidence

in the record when considered as a whoie.

3. Whether an employer which hires the employees of its

predecessor without advising them that they are to be employed

on a temporary basis is obligated to recognize and bargain with

the Union which had a collective bargaining relationship with the

predecessor, when the majority of the successor employer’s

employees had been employed at the same location by the

predecessor and had performed the same duties under similar

supervision.

* The Union is affiliated with the National Marine Engineers’ Benericial

Association, AFL-CIO

TABLE OF CONTENTS

TABLE OF CITATIONS

Rule Cited

No. 91-597

In The

Supreme Court of the United States

October Term, 1991

HOUSTON BUILDING SERVICE, IN¢

Dopi ty

Fetitioner,

NATIONAL LABOR RELATIONS BOARD and UNLICENSED

DIVISION OF DISTRICT NO. 1, MEBA/NMU, AFL-CIO,

Respondents.

On Petition for Writ of Certiorari to the United States Court

- of Appeals for the Fifth Circutl

BRIEF IN OPPOSITION FOR RESPONDENT UNLICENSED

DIVISION OF DISTRICT NO. 1, MEBA/NMU, AFL-CIO

OPINIONS BELOW

The opinion of the Fifth Circuit Court of Appeals is reported

at 979 F.2d 178 (1991). That opinion affirmed the decision and

order of the National Labor Relations Board (*‘NLRB”’ or

‘*Board’’), which is reported at 296 NLRB No. 101 (1989).

of their purported temporary status as they may then have refused

to work for the company under those conditions and the

company’s president, Jason Yoo, was ‘‘desperate’’ in his need

for them at that time.

Petitioner’s rendition of the facts of this case also omits the

finding of the NLRB, based on the undisputed evidence, that,

at the request of HBS’s supervisors, its predecessors’ workers

completed employment applications and union cards, some before

and some after that company had become the contractor at the

Austin federal buildings. The employees reported for work on

the first day HBS became the contractor and performed their

duties, as they had done during the other changes of employer

over the prior several years. (See J.A. 5a, 17a, 19a-20a, 29a.)

These employees performed the same work at the same locations

for, essentially, the same supervisors as they had under HBS'’s

predecessor (J.A. 29a-30a).

SUMMARY OF ARGUMENT

The decision of the Fifth Circuit does not conflict at all with

the precedent of this Court, but rather is fully in compliance with

that precedent. As HBS mysteriously mentions only twice’ and

in passing, the ‘‘decision’’ with which it asserts the Court of

Appeals’ determination is in conflict is, in fact, not the holding

of this Honorable Court at all, but a dissenting opinion in NLRB

v. Burns International Security Services, Inc., 406 U.S. 272 (1972)

(‘*Burns’’). The decision below faithfully follows the decisions

of this Honorable Court in Burns and in Fall River Dveing &

Finishing Corp. v. NLRB, 482 U.S. 27 (1987) (‘Fall River’’),

3, Once in a footnote to its statment of the ‘*‘Questions Presented” (at

which petitoner inconsistently refers to ‘the favorable decision of Mr. Chiet

Justice Rehnquist _in his dissent’’) and the other ume in the tirst heading

yf its argument

REASONS FOR DENYING THI

decision by the Ourt Of Appeals is co

nt established by this Honorable Cou

people to perform the same work at the same location. This Court

required that successor to recognize and bargain with the union

which had been the employees’ representative when they worked

for the predecessor, as the bargaining unit was basically

unchanged. Burns, supra at 280-281.

The central holding of both Burns and Fall River is that:

if the new employer makes a conscious decision

{oO maintain generally the same business and to hire

a majority of its employees from the predecessor,

then the bargaining obligation of § 8(a)(5) is

activated. This makes sense when one considers

that the emplover intends to take advantage of the

trained work force of its predecessor.

Fall River, supra at 41 (emphasis in original).

The findings in the current proceeding were that HBS made

a conscious decision to bid for and perform the work that had

been performed at the federal buildings in Austin, Texas, by its

predecessor and that it intended to and did ‘‘take advantage of

the trained work force of its predecessor.’’ (See J.A. 2a, 6a,

29a-31a.) HBS has admitted that it needed to keep the employees

at their jobs because they were the only ones with the necessary

security clearances at that time and, without them, it would not

have been able to provide the services required by the government.

Given its alleged intent to replace those workers, HBS took

advantage of them in another sense as well — intentionally tailing

to inform them that they would only be kept temporarily because

it knew they would not otherwise agree to work for it.

Burns has been followed by the NLRB and the courts for

CONCLUSION

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