Opposition Brief — Aeronautical Industrial District Lodge No. 91 v. National Labor Relations Board

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No. 91-723

Supreme Court, U.S.

JAN 8 3952 |

THE |

In the Supreme Court of the Uuitedstatrs —

OCTOBER TERM, 1991

AERONAUTICAL INDUSTRIAL DISTRICT LODGE No. 91,

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, ET AL., PETITIONERS

NATIONAL LABOR RELATIONS BOARD

AND WAYNE A. GILBERT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

JERRY M. HUNTER Washington, D.C. 20580

General Counsel (202) 514-2217

D. RANDALL FRYE

Acting Deputy General Counsel

NORTON J. COME

Deputy Associate General

Counsel

LINDA SHER

Assistant General Counsel

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

The National Labor Relations Board found that

District 91 unlawfully denied a union member recall

to his position as an elected union representative in

retaliation for his having engaged in activity pro-

tected by Section 7 of the National Labor Relations

Act, and that the Unions thereafter deprived him of

the right to run as a candidate in a future union

election.

The question presented is whether the Board rea-

sonably exercised its discretion to remedy those un-

fair labor practices by ordering the Unions to restore

the niember to his status as an incumbent union rep-

resentative for a period of time at least equal to the

time remaining in the term for which he was unlaw-

fully denied recall, and to reimburse him for any loss

in wages or benefits until he is permitted to partici-

pate in an election for that position as an incumbent,

after he has served his term.

(I)

TABLE OF CONTENTS

Opinions below ...........-----

III... sciunsssssiasinsikatinpendeesnesiiuaapusiaeeneaelastaiaalamananetades

Statement ..............

FI icnilniisnsescbviccstnteocecmnahioniestemmtiaennne

Conclusion

TABLE OF AUTHORITIES

Cases:

Abbey’s Transportation Service, Inc. v. NLRB,

ee £1 > os: |

Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251

CRY incisiie ceskinsinicennibvcciseerieaibiointcreipiaiiniitaninamaies

Emhart Indus., Hartford Div. v. NLRB, 907 F.2d

SUE TR. GE, TOD wciitniinccccidstilancdisinipiacntntciornnns

Finnegan Vv. Leu, 456 U.S. 481 (1982) -...................

Golden State Bottling Co. v. NLRB, 414 U.S. 168

CI wi scinicitsnsiesnitecdseciepciscicledentsiananncosdaiibanidaaiiiaedaaabaindsenes

Leeds & Northrup Co. v. NLRB, 391 F.2d 874 (3d

3 Ep _, PE ENERSEIEEN rcs ere LETT So Se

Local Lodge No. 707 (Pratt & Whitney Div. Of

United Technologies Corp.), 276 N.L.R.B. 985

CIID sd ciccsintiisconittascnictadehtntinenieltenRadmlaitasteeadaininnse

Machinists, Local Lodge 707, 278 N.L.R.B. 39

(1986), enforced, 817 F.2d 235 (2d Cir. 1987)...

National Maritime Union v. NLRB, 423 F.2d 625

COR Ce: BORO ccciccinetlidnkneineteeinnnns

NLRB v. Financial Institution Employees, Local

Pei Me Bie ee. Ee | eee

NLRB v. Industrial Union of Marine & Shipbuild-

ing Workers, 391 U.S. 418 (1968) ..............-.....--.-

NLRB v. Local 707, Int’l Ass’n of Machinists, 817

PBs SS COE Ga, Be wickctieeiewenn

NLRB v. Local 294, International Brotherhood of

Teamsters, 470 F.2d 57 (2d Cir. 1972) -.............

NLRB v. Operating Engineers, Local 825, 420 F.2d

O61 (06 Gir. TGC? scicoencieccueeeenesnens

Page

—

PUBLISHER'S NOT

ORIGINAL PAGINA

Cases—Continued : Page

NLRB Vv. Remington Rand, Inc., 94 F.2d 862 (2d

Cir.), cert. denied, 304 U.S. 576 (1938) _........... 17

NLRB vV. Schrivener, 405 U.S. 117 (1972) .............. 6

NLRB Vv. Swinerton, 202 F.2d 511 (9th Cir.), cert.

denied, 346 U.S. 814 (1953) 0.000 17

Olivetti Office USA, Inc. v. NLRB, 926 F.2d 181

ERAN NSIC Rete eee neg a ee 12

Phelps Dodge Corp. v. NLRB, 318 U.S. 177

OE TRE OG Ree ADOSER DT 13

Sheet Metal Workers v. Lynn, 488 U.S. 347

an NIL RR en Antara ee 14

Southern S.S. Co. v. NLRB, 316 U.S. 31 (1942)... 15

Sure Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ........ 15

Statutes:

Labor-Management Reporting and Disclosure Act,

ed |. eran 15, 16

National Labor Relations Act, 29 U.S.C. 151 et seq.:

eR Sec 6, 7, 15

§ 8(a) (1), 29 U.S.C. 158 (a) (1) .....0000 6

§ 8(a) (3), 29 U.S.C. 158 (a) (3) 2.02. 6

§ 8(a) (4), 29 U.S.C. 158 (a) (4)... 6

§ 8(b) (1) (A), 29 U.S.C. 158 (b) (1) (A) ......... 4,6,7

ON TC NOT CONTINIIOTIC |

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-723

AERONAUTICAL INDUSTRIAL DISTRICT LODGE No. 91,

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

AND WAYNE A. GILBERT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR

THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

la-25a) is reported at 934 F.2d 1288. The decision

and order of the National Labor Relations Board

(Pet. App. 30a-36a), including the recommended or-

der of the Administrative Law Judge (Pet. App. 37a-

255a), is reported at 298 N.L.R.B. No. 47. The

Board’s supplemental decision (Pet. App. 26a-29a)

is unreported.

(1)

JURISDICTION

The opinion of the court of appeals was issued on

June 4, 1991. A petition for rehearing was denied

on August 6, 1991. Pet. App. 256a. The petition for

a writ of certiorari was filed on November 4, 1991.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. a. Petitioner District Lodge 91 (District 91) is

a delegate body affiliated with the International

Association of Machinists and Aerospace Workers

(the International). Petitioner Local Lodge No. 707

(Local 707) is one of five affiliated locals of District

91; it represents employees at the North Haven,

Connecticut plant of Pratt & Whitney, a division of

United Technologies Corporation. The locals are rep-

resented at District 91 by elected delegates from each

of the affiliated locals. Pet. App. 48a.

District 91 employs a number of full-time, salaried

labor representatives to assist the locals in such mat-

ters as organizing, steward education, and leaflet dis-

tribution. The labor representatives are elected to

four-year terms. Each local may nominate one can-

didate for each of the open labor representative posi-

tions. After the candidates are nominated, the mem-

bership of the local votes on which of the nominees to

endorse. The names of the endorsed candidates ap-

pear on a District-wide ballot; the candidates receiv-

ing the highest number of votes are elected. Pet.

App. 45a.

Respondent Wayne Gilbert was employed at Pratt

& Whitney’s North Haven facility until he was dis-

charged on July 1, 1982.' Gilbert was president of

Local 707 from 1979 until July 31, 1982, when he

resigned to begin serving as a District 91 labor rep-

resentative. Pet. App. 44a. Robert Fleeting, Peter

Tinella, and six incumbents were elected as labor

representatives in the same election; because they

commenced serving their terms eerlier, Gilbert and

Fleeting were assigned greater seniority than Tinella.

Pet. App. 45a, 135a-138a. In April 1983, the Inter-

national notified District 91 that, as of July 1, it

would be unable to fund three of District 91’s nine

labor representative positions. Accordingly, Gilbert,

Fleeting and Tinella were laid off on June 3 “in ac-

cordance with seniority,” because they were junior

to the other six labor representatives. Pet. App. 139a-

146a.’

b. In December 1983, Gilbert and two other Local

707 members prepared and distributed a leaflet that

criticized the incumbent leaders of Local 707, charg-

ing them with embezzlement, criminal activity, and

1 Local 707 filed a grievance over Gilbert’s discharge. On

September 7, 1983, Gilbert won the arbitration on his dis-

charge claim and was awarded reinstatement and backpay.

On September 14, Pratt & Whitney informed Local 707 that,

because of a recent lavoff, it could not reinstate Gilbert but

would place him on “leave of absence” status. Local 707

thereafter brought suit to enforce the arbitrator’s decision.

Pet. App. 48a-49a. On February 5, 1986, the suit was settled.

Under the terms of the settlement, Gilbert received an award

of backpay but agreed to forgo reinstatement. Pet. App. 201a-

204a.

2 On June 3, 1983, Gilbert tendered his resignation as labor

representative contingent on his being selected to fill a saZety

representative position at Pratt & Whitney. Pet. App. 150a-

152a, 168a-17la. But Pratt & Whitney rejected Gilbert’s

designation as safety representative because he was not an

“active” employee. Pet. App. 168a.

discriminatory treatment of Gilbert and others. On

January 15, 1984, Local 707 and the International

filed intraunion charges against Gilbert and his sup-

porters; in response Gilbert filed unfair labor prac-

tice charges against Local 707 and the International,

alleging that the Unions had violated the National

Labor Relations Act by proceeding against him for

engaging in protected activity. Pet. App. 51a-56a.°

On August 19, 1984, Local 707 cancelled Gilbert’s

membership, retroactive to May 1984. On September

16, Local 707 declared Gilbert ineligible to run for

any elective union office; on October 5, the Interna-

tional approved this ruling. Gilbert then filed addi-

tional unfair labor practice charges against Local 707,

District 91 and the International, alleging that, by

cancelling his union membership in retaliation for his

protected intraunion activities, the Unions had vio-

lated Section 8(b) (1) (A) of the Act. Pet. App. 56a-

57a."

ce. On December 7, 1984, Local 707 filed a state

court action asking that Gilbert be enjoined from

entering the Local 707 union hall, attending union

meetings, and “harassing” or “intimidating” union

members; the suit requested damages in the amount

of $15,000. Pet. App. 77a-78a, 86a-87a. The state

3 On September 30, 1985, the Board found that Local 707

and the International had violated Section 8(b) (1) (A) of the

NLRA, 29 U.S.C. 158(b) (1) (A), by filing and processing

internal union charges against Gilbert because of his involve-

ment in preparing and distributing the leaflets. Local Lodge

No. 707 (Pratt & Whitney Div. of United Technologies Corp.),

276 N.L.R.B. 985 (1985) (Gilbert J).

*On January 16, 1986, the Board issued its decision finding

the violation charged. Machinists, Local Lodge 707, 278

N.L.R.B. 39 (1986), enforced, 817 F.2d 235 (2d Cir. 1987)

(Gilbert II).

court dismissed the complaint, finding that Gilbert’s

alleged wrongful conduct did not “even approach the

kind of conduct” described in cases relied es by

Local 707. Pet. App. 38a.

On March 11, 1985, District 91 announced at an

executive board meeting that one labor representative

position had become available and that Tinella was

being recalled to fill that position. When an executive

board member asked why Tinella was being recalled

instead of Gilbert, who had greater staff seniority, it

was explained that Gilbert was not being considered

for the position because he had previously resigned as

labor representative. Pet. App. 183a-184a. Gilbert

promptly sent letters to District 91 denying he had

resigned and asking to be recalled. Pet. App. 190a-

19la. In a letter to Gilbert dated April 9, the District

91 director insisted that Gilbert had resigned and re-

minded Gilbert that his union membership had “lapsed

effective June 30, 1984.” Pet. App. 191a-192a.

On February 7, 1986, several days after Gilbert

settled his discharge arbitration suit by agreeing to

waive reinstatement to his job at Pratt & Whitney

(see note 1, supra), an International representative

informed a District 91 official that Gilbert’s nomina-

tion for labor representative would be a violation of

the District 91 bylaws, because Gilbert was not then

“actively employed” by Pratt & Whitney. Pet. App.

21la. When members subsequently attempted to nom-

inate Gilbert for the labor representative position,

District 91 officials ruled that Gilbert was ineligible.

Pet. App. 213a-216a, 225a-229a. In a letter to Gil-

bert dated February 20, 1986, the president of Local

707 stated that Gilbert was ineligible to run for labor

representative because he was not “actively employed

in one (1) of the shops coming under the jurisdiction

of this District or * * * by the District or one (1) of

the Local Lodges affiliated with this District for a

period of at least one (1) year prior to nomination.”

Pet. App. 282a.

2. The Board, in agreement with the ALJ, found

that Local 707 violated Section 8(b)(1)(A) of the

Act, 29 U.S.C. 158(b)(1) (A), by filing a lawsuit

without any reasonable basis against Gilbert because

he engaged in protected activities. Pet. App. 32a-36a.

To remedy this violation, the Board ordered Local

707 to reimburse Gilbert for all legal expenses in-

curred in his defense of the lawsuit. Pet. App. 254a-

255a.

The Board also found, in agreement with the ALJ,

that District 91, in its capacity as Gilbert’s employer,

violated Section 8(a)(1), (3), and (4) of the Act,

29 U.S.C. 158(a) (1), (3), and (4), by refusing to

recall Gilbert to a district labor representative posi-

tion on and after March 11, 1985, because he engaged

in protected activities.’ Pet. App. 32a n.2, 196a. In

5 Section 7 of the Act, 29 U.S.C. 157, encompasses the right

of an employee to participate in union affairs by, inter alia,

opposing the incumbent leadership and its policies. National

Maritime Union V. NLRB, 423 F.2d 625, 626 (2d Cir. 1970)

(employees’ rights under Section 7 include right to engage in

intraunion activity in opposition to incumbent administra-

tion). In addition, an employee has the right under Section 7

to file unfair labor practice charges with the Board and resort

to Board processes. See NLRB v. Industrial Union of Marine

& Shipbuilding Workers, 391 U.S. 418, 421-422 (1968). A

union-employer, therefore, violates Section 8(a) (3) and (1)

of the Act, 29 U.S.C. 158(a) (3) and (1), if it retaliates

against an employee for engaging in such protected activities.

See National Maritime Union v. NLRB, 423 F.2d at 626;

Abbey’s Transportation Services, Inc. v. NLRB, 837 F.2d 575,

579-582 (2d Cir. 1988). And it violates Section 8(a) (4) of

the Act, 29 U.S.C. 158(a) (4), if it retaliates against an em-

ployee for filing charges with, or giving testimony before, the

Board. See NLRB Vv. Scrivener, 405 U.S. 117, 124-125 (1972).

so finding, the ALJ rejected, as pretextual, District

91’s reliance on Gilbert’s contingent resignation in

order to be eligible for the safety representative posi-

tion. Pet. App. 194a-196a. The Board further found,

in agreement with the ALJ, that District 91 and Local

707, in their capacity as unions, violated Section 8

(b) (1) (A) of the Act by refusing to allow Gilbert to

be nominated as a candidate for District 91 labor

representative because he engaged in protected activi-

ties.° The Board rejected the contention that Gilbert

was not eligible to run in that election because he was

not working at the trade. The Board noted that, had

District 91 not unlawfully refused to recall him to

that position in 1985, he would have been eligible to

run as an incumbent. Pet. App. 32a n.2, 235a-244a.

To remedy these violations, the Board ordered Dis-

trict 91 to restore to Gilbert, to the extent possible, all

benefits, rights, and privileges of district labor repre-

sentative status. The order directs that Gilbert be re-

® Section 8(b) (1) (A) makes it an unfair labor practice for

a union to restrain or coerce employees in the exercise of

Section 7 rights, including the right to engage in union ac-

tivity and to file charges with the Board. A union, therefore,

violates Section 8(b) (1) (A) of the Act when it disciplines

a member in retaliation for exercising these rights. NLRB

v. Local 707, Int’l Ass’n of Machinists, 817 F.2d 235, 237 (2d

Cir. 1987) (cancelling member’s union membership because

he engaged in internal union activities and pressed Board

charges violates the Act); NLRB v. Local 294, International

Brotherhood of Teamsters, 470 F.2d 57, 63 (2d Cir. 1972)

(fining and suspending union member because he pressed

Board charges violates the Act); NLRB v. Operating Engi-

neers, Local 825, 420 F.2d 961, 961 (3d Cir. 1970) (union’s

expulsion of member for invoking Board processes violates

the Act).

instated as a District 91 labor representative for a

period of time equivalent to the remainder of the term

for which he was unlawfully denied recall—some 13

months—in order to restore his status as an incum-

bent. The order further requires that, after Gilbert

has served that period of incumbency, District 91 and

Local 707 shall permit him to run as an incumbent

candidate for election to a District 91 labor repre-

sentative position. Pet. App. 28a, 253a. The Board

noted (id. at 28a) that “this remedy is designed to

put Gilbert in the position he would have enjoyed had

he not been unlawfully refused recall without impair-

ing the rights of other duly elected labor representa-

tives and Union members.” Finally, the Board’s order

requires Local 707 and District 91 to make Gilbert

whole for any loss in wages or benefits he may have

suffered from March 1985 until such time as the

Unions allow him lawfully to participate in the elec-

tion for labor representative as an incumbent candi-

date.’ Pet. App. 28a, 252a-255a.

On March 5, 1990, District 91 and Local 707 filed

a motion with the Board to reopen the record to intro-

duce evidence that Gilbert “ha[d] run in several in-

ternal District 91 elections and ha[d] failed to receive

enough support to be placed on the ballot in such

elections.” Pet. App. 3la n.1. The Board denied the

motion because the alleged events occurred after the

close of the hearing. However, the Board noted that,

because the contentions related to the appropriateness

of the Board’s remedy, they could be raised at the

compliance stage of the Board’s proceedings. Ibid.

7 The order provided the option of tolling backpay liability

by holding a special rerun election. Pet. App. 29a n.3.

3. The court of appeals upheld the Board’s deci-

sion and enforced its order “in its entirety.” * Pet.

App. 3a. The court found “sufficient evidence to sup-

port the Board’s conclusion that the recall to the

Labor Representative position should have been made

on the basis of seniority, and that District 91 denied

Gilbert his right to recall in retaliation for his pro-

tected activities.”” Pet. App. 15a. The court rejected

the contention that Gilbert was disqualified from run-

ning for a Labor Representative position in 1986.

The court agreed with the Board that, as an incumbent

representative, Gilbert would have had the necessary

qualifications and that the reason he was not an in-

cumbent was because of District 91’s and Local 707’s

earlier retaliation against him. Pet. App. 16a. The

court concluded that “[i]t would undermine the pur-

poses of the Act if a union could use, with impunity,

its earlier retaliatory acts to engage in future retalia-

tion by what would otherwise appear to be lawful

conduct. The unions had an arguable basis for find-

ing that Gilbert was ineligible, but that makes no

difference if the unions’ true motive was retaliation

and its illegal prior action based upon that motive

was the cause of the ineligibility.” Pet. App. 17a.

The court also rejected petitioners’ challenge to the

Board’s remedial order. The court disagreed with

petitioner’s contention that the Board’s order was

“speculative” and “punitive” because there was no

conclusive proof that Gilbert would have been re-

elected in 1986, and again in 1990, had he been able

8 Before the court of appeals, Local 707 did not challenge

the Board’s finding that it had unlawfully filed the state

court proceeding in retaliation for Gilbert’s dissident activi-

ties, or the Board’s remedy for the violation. Pet. App. 10a.

to run as an incumbent. Pet. App. 18a.° The court

noted the backpay remedy is appropriate if supported

by “sufficient relevant factual information before the

Board making it reasonable for it to assume that Gil-

bert would have been re-elected.” Pet. App. 19a. The

court observed that seven out of eight incumbents

were reelected in 1986; Gilbert was nominated to run

in 1986 at meetings of Local 707 and Local 700; and

he would have had the advantage of incumbency ab-

sent the retaliatory treatment. Jbid.

The court further noted that petitioners’ objections

to the Board’s order reinstating Gilbert as an in-

cumbent candidate were premised on “their contention

that it was irrelevant in the 1990 election that Gilbert

was not running as an incumbent.” Pet. App. 20a.”

The court stated that, given the nature of the position

in which “Labor Representatives are regularly be-

fore members in a variety of situations in which the

Representative is able to represent and fight for em-

ployee rights,” as well as the fact that historically

incumbents overwhelmingly win reelection, “the Board

could properly assume that significant advantages

attach to incumbency.” Pet. App. 21a. The court con-

cluded that the Board’s remedy “both makes Gilbert

whole for the loss he suffered and guards against

rewarding the unions for their misconduct.” Jbid.

The court rejected petitioners’ argument that the

Board’s reinstatement remedy “intrudes upon the

primary jurisdiction of the Secretary of Labor * * *

® Labor representatives serve for a four-year term. The

Unions argued that, had Gilbert been recalled in 1985, his term

would have expired in 1986.

10 Gilbert was allowed to participate in the 1990 election of

labor representatives and lost. Pet. App. 20a.

under Title IV of the [Labor Management Reporting

and Disclosure Act], 29 U.S.C. §$§ 481-483, the statute

that specifically regulates the conduct of elections for

union officers.” Pet. App. 21a. The court pointed out

that the Board’s order “does not challenge an election

that was already conducted, but merely requires that

Gilbert be given an opportunity to ‘run for the next

scheduled election’ after he has been properly re-

instated.” Pet. App. 22a. The court further noted

that the order does not require a rerun election or

that any incumbent be displaced to make way for

Gilbert. Accordingly, the court concluded (Pet. App.

22a-23a):

Rather than unlawfully interfere with union

elections, the order merely requires that the

unions give Gilbert the rights he had under the

unions’ constitution and bylaws but was deprived

of by their unlawful retaliation. The remedy

therefore falls squarely within the exception to

Title IV exclusivity, which states that “[e]xist-

ing rights and remedies to enforce the constitu-

tion and bylaws of a labor organization with re-

spect to elections prior to the conduct thereof

shall not be affected by the provisions of this sub-

chapter.” [29 U.S.C.] 483; ef. Calhoon [v.

Harvey], 379 U.S. at 139-41 (exclusivity of Title

IV applies to challenges to a union’s eligibility |

requirements for candidates for office but not to

the union’s discriminatory application of those

requirements ).

Finally, the court rejected the argument that the

delay between issuance of the ALJ’s and the Board’s

decisions “undermine[d] the union membership’s

right to choose their own representatives.” Pet. App.

23a. Distinguishing its decisions in Emhart, Indus.,

Hartford Div. v. NLRB, 907 F.2d 372 (1990), and

Olivetti Office USA, Inc. v. NLRB, 926 F.2d 181

(1991), in which it had found that changed circum-

stances rendered the Board’s orders inappropriate, the

court of appeals acknowledged that the present union

membership did not select Gilbert as their representa-

tive. The court noted, however, that in this case “the

union’s members in 1985 were deprived of his services

for 13 months by District 91’s unlawful conduct

[and] [e]nforcing the order here also serves the

salutory purpose of making Gilbert whole[.]” Pet.

App. 24a.

ARGUMENT

Petitioners no longer challenge the Board’s unfair

labor practice findings. And petitioners concede that

“the Board properly ordered District 91 to compen-

sate Gilbert for the pay and benefits he lost during

[the] thirteen-month period of time as a remedy for

[District 91’s failure to reinstate Gilbert in 1985 to

his elected position as labor representative. ]” Pet. 17-

18. Petitioners also concede that the Board properly

could have ordered District 91 and Local 707 to “per-

mit[] Gilbert to be nominated and, if endorsed, run

for election” to remedy the unlawful refusal to permit

him to run for a labor representative position in 1986.

Pet. 16 n.9. Petitioners contend, however, that the

court of appeals improperly upheld the Board’s grant

to Gilbert of additional backpay and reestablishment

of incumbency status as a labor representative. There

is no merit to that contention. The Board’s order

simply reestablishes the status quo ante to the extent

possible in the circumstances here. The court of ap-

peals’ decision upholding the Board’s order is consist-

ent with the decisions of this Court and other courts

of appeals. Accordingly, no further review is war-

ranted.

1. To make employees whole, the Board properly

seeks to restore the parties, to the extent practicable,

to the situation that would have existed but for the

employer’s unfair labor practices. Golden State Bot-

tling Co. v. NLRB, 414 U.S. 168, 188-189 (1973) ;

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194

(141). Here, the Board ordered District 91 to let

Gilbert serve as a labor representative for some 13

months—the period of ‘ncumbency he was deprived of

in 1985 and 1986—and then permit him to participate

in an election for that position as an incumbent. Ab-

sent petitioners’ unlawful conduct, Gilbert would have

presented himself to the electorate in February 1986

as an incumbent labor representative who had served

the members’ interests during the past 13 months.

The Board’s incumbency requirement restores the

status quo ante by assuring that Gilbert has a level

playing field for his reelection efforts. As the Board

explained (Pet. App. 29a), the incumbency feature of

its remedy is “aimed at removing [Gilbert’s] handi-

cap to the extent practicable in this legal context.”

Since Gilbert had been out of office for more than

four years when the ALJ’s recommended decision and

order issued, a remedy that merely ordered petition-

ers to allow Gilbert to stand for office at the next

election plainly would not reestablish the status quo

ante.

Petitioners, relying on the results of the 1990

labor representative election which Gilbert lost, assert

(Pet. 8-13) that the Board’s reinstatement order

conflicts with congressional policy, expressed in the

Labor-Management Reporting and Disclosure Act

(LMRDA), “that union members be free to select

their own representatives through elections.” Peti-

tioners simply ignore the fact that it was they who

frustrated the union members’ rights to freely elect

their representatives by refusing duly to recall Gilbert

to office and precluding him from running again when

duly nominated. As the court of appeals noted (Pet.

App. 22a), the Board’s order simply gives Gilbert the

right to stand for office established in petitioners’ con-

stitutions and by-laws which Gilbert “was deprived

of by [petitioners’] unlawful retaliation.” Accord-

ingly, the Board’s reinstatement order vindicates the

members’ rights freely to choose their own repre-

sentatives.

Petitioners’ contention (Pet. 9-10) that the Board’s

order conflicts with Finnegan v. Leu, 456 U.S. 431

(1982), and Sheet Metal Workers v. Lynn, 488 U.S.

347 (1989), is without merit. In Finnegan v. Leu,

supra, the Court held that the LMRDA does not pre-

clude union officials from discharging employees who

hold appointive positions whose views conflict with

those of the union leadership. Petitioners do not con-

tend here, as they did in the court of appeals (C.A.

Br, 23-26), that Gilbert’s position was appointive.

And the Board’s position is consistent with Sheet

Metal Workers v. Lynn, in which the Court held that

the “retaliatory removal” of an elected union official

violates the LMRDA. 488 U.S. at 355. As the Court

noted in Lynn, the purpose of the LMRDA was to as-

sure that “union members are free to discuss union

policies and criticize the leadership without fear of

reprisal.” bid. The Court further observed that the

discharge of an elected official chills not only that offi-

cial’s exercise of free speech rights, but the rights of

“members who voted for him.” The Board’s order

does not require petitioners to displace any elected

officials; on the contrary, it merely restores an elected

official who was unlawfully removed to his former

position for the remainder of his term.”

2. Petitioners’ additional contention (Pet. 13-17)

that the Board’s order improperly “intrudes into in-

ternal union affairs’ by regulating union election

procedures is equally without merit. As the court of

appeals correctly noted (Pet. App. 22a), “even if the

unions’ retaliation against Gilbert involves internal

union affairs, it is nonetheless clear that the [Na-

tional Labor Relations] Act unambiguously regulates

the conduct at issue in this case. The reinstatement

component of the Board’s order is a remedy for the

unions’ conduct that violated the Act, indicating that

the Board has the authority to grant such a remedy.”

District 91, as Gilbert’s employer, unlawfully refused

to recall him to his position as labor representative in

retaliation for engaging in activity protected by Sec-

tion 7 of the Act. Reinstatement is the traditional

remedy for such a violation of the Act.

Nor is the Board’s order inconsistent with Title IV

of LMRDA, which provides the exclusive means of

redress “for challenging an election already con-

ducted.” 29 U.S.C. 483. As the court of appeals

noted (Pet. App. 22a), the Board’s order does not

challenge the 1990 election which has been conducted,

11 Nothing in Sure Tan, Inc. v. NLRB, 467 U.S. 883 (1984),

or Southern S.S. Co. v. NLRB, 316 U.S. 31 (1942), remotely

supports petitioners’ argument under the LMRDA. In Suwre-

Tan, the Court held that the Board could properly find that an

employer engaged in an unfair labor practice by reporting

employees known to be undocumented aliens to the INS in

retaliation for their engaging in union activity. In Southern

S.S. Co., which was decided 15 years before Congress enacted

the LMRDA, the Court held that when seamen are discharged

for acts of mutiny aboard ship in violation of federal criminal

laws, the Board may not order their reinstatement.

direct any rerun election, or require the dismissal of

any elected official. All it requires is that Gilbert be

reinstated to the position from which he was unlaw-

fully removed by District 91, and that District 91 and

the Union thereafter allow him to compete for office.

The Board’s order “therefore falls squarely within the

exception to Title IV exclusivity, which states that

‘[e]xisting rights and remedies to enforce the consti-

tution and bylaws of a labor organization with respect

to elections prior to the conduct thereof shall not be

affected by the provisions of this subchapter.’” Pet.

App. 22a-23a (citing 29 U.S.C. 483).”

3. Petitioners also object (Pet. 18-19) to the

Board’s backpay remedy insofar as it awards Gilbert

backpay beyond the 13 months of his elected term;

that is, until he has been allowed to participate in an

election for labor representative after restoration of

his period of incumbency. The Board’s award is

premised on the determination that, as a direct result

of petitioners’ unlawful conduct in February 1985,

Gilbert lost the opportunity to be reelected to another

four-year term. Although there is no certainty that

Gilbert would have been reelected had he run as an

incumbent, the Board was entitled to resolve any

doubts against petitioners as the wrongdoers who are

responsible for the uncertainty. See Bigelow v. RKO

12 Petitioners’ reliance (Pet. 14) on NLRB v. Financial In-

stitution Employees, Local 1182, 475 U.S. 192 (1986), is

misplaced. There, the Court held that the Board had no

authority to require a union to allow non-members to vote

in an affiliation election in the absence of a question of

representation. Nothing in Financial Institution Employees,

or in the other cases cited by petitioners, suggests that the

Board may not order a union-employer to reinstate an em-

ployee to a position from which he has been unlawfully

terminated.

Radio Pictures, Inc., 327 U.S. 251, 265 (1946) (“[t]he

most elementary conceptions of justice and public pol-

icy require that the wrongdoer shall bear the risk of

the uncertainty which his own wrong has created”’).

Far from being outside the Board’s “special compe-

tence or authority” (Pet. 19), that principle is a com-

monplace in Board remedies. See, e.g., NLRB v.

Remington Rand, Inc., 94 F.2d 862, 872 (2d Cir.)

(“[{I]t rested upon the tortfeasor to disentangle the

consequences for which it was chargeable from those

from which it was immune.”), cert. denied, 304 U.S.

576 (1938) ; Leeds & Northrup Co. v. NLRB, 391 F.2d

874, 880 (3d Cir. 1968) (where there was uncer-

tainty whether union would have been able to resist

employer’s demand to decrease employees’ share of

profits, had the employer not unlawfully refused to

bargain, “the Board can hardly be said to be effec-

tuating policies beyond the purposes of the Act by

resolving the doubt against the party who violated

the Act”); NLRB vy. Swinerton, 202 F.2d 511, 516

(9th Cir.), cert. denied, 346 U.S. 814 (1953) (if an

unfair labor practice is at least a partial cause of the

loss suffered by the wronged party, the burden is on

the party that committed the unfair labor practice

“to disentangle the consequences for which it was

chargeable from those from which it was immune’’).

Here, as the court of appeals noted (Pet. App. 21a),

the advantages of incumbency were well documented

by the fact that six out of eight incumbents won in

1982 and seven out of eight won in 1986.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JERRY M. HUNTER

General Counsel