# Opposition Brief — Houston Building Service, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2849%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 502 U.S. 1090 ## Text mg 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 n *asons [ Honoral | on for ruioral . - | ; Br , | ‘ati a@ ?/ af wT RR APP] } insel O} Ke < : . ’ {) \ IDNEY H. KALBAN PHILLIPS CAPPII HOFMANN & B A; --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2849%3A2. Public record. Not legal advice.