Opposition — S. E. Nichols of Ohio, Inc. v. National Labor Relations Board

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In the Supreme Court of the Cited States

OCTOBER TERM, 1983

S.E. NICHOLS OF OHIO, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE NATIONAL

LABOR RELATIONS BOARD IN OPPOSITION

Rex E. LEE

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

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

National Labor Relations Board

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether substantial evidence supports the

Board’s finding that petitioner constructively dis-

charged employee Lena Barnhart because of her pro-

tected activities.

2. Whether substantial evidence supports the

Board’s finding that employee Barnhart made reason-

able efforts to obtain alternative employment.

3. Whether petitioner was denied due process by ex-

clusion of certain evidence from the unfair labor prac-

tice hearing.

(1)

TABLE OF CONTENTS

Page

CE I as ovk bxdecs vidneendspeceeeaee l

A En ee eT To ile han ae l

TEEPE TTT EE ere PEP eee 1

PR PEE TT ere Pere re ree ET oe 2

PEN os inane kenAvhacasehabessceneuvete 7

COI ois cack Vids Sonn canta ceay keno unnien 12

TABLE OF AUTHORITIES

Cases:

J.H. Rutter Rex Mfg. Co. v. NLRB, 473

F.2d 223, cert. denied, 414 U.S. 822 .. 11

NLRB vy. Arduini Manufacturing Corp.,

Se Oe KS laches sanaeentoseecsss 9

NLRB vy. Cement Transport, Inc., 490

F.2d 1024, cert. denied, 419 U.S. 828 . 8

NLRB vy, Flite Chief, Inc., 246 N.L.R.B.

407, enforced in pertinent part, 640

Pe OE iki caccwakieeaescneeauenee 10

NLRB vy. Hickmott Foods, Inc., 242

WE Se Bes SY 6 064058 de ancdeecassens 6

NLRB vy. Lewisburg Chair & Furniture

CO; GP Fie Oe akcsbaiebistsaestes 8

NLRB vy. Mercy Peninsula Ambulance

Service, Inc., 589 F.2d 1014 .......... 10

NLRB vy. Pearl Bookbinding Co., 517 F.2d

8 Oa ge rome a ger Pee Eee 8

NLRB vy. Pittsburgh S.S. Co., 387 U.S.

OP coy iisakins chesecees a cemespaeee ks 8

NLRB vy. Rawac Plating Co. 422 F.2d

MA cca vixahedpenienrereciesewenns 8

NLRB v. Reynolds, 399 F.2d 668 ......... 9

(III)

Cases—Continued Page

NLRB vy. Seine & Line Fisherman's

Union, 374 F.2d 974, cert. denied, 389

Se Meu xiscbhonee cena crin cane 11

NLRB vy. Tonkawa Refining Co., 452 F.2d

| ST Ar ree Fo hry Pere er ue ers ll

Portable Electric Tools, Inc. v. NLRB, 309

fF 6 Serre rrr er ere 9

Trumbull Asphalt Co. of Delaware v.

NLRB, 314 F.2d 382, cert. denied, 374

it SRA errer re rere ere ree 8

United States v. Pierce Auto Freight Lines,

Be Ree NN nest ck aessacnsteeeevenen 8

Universal Camera Corp. v. NLRB, 340

SMe EE Waa dei noaeenda nakeveeewe es 8

Statute:

National Labor Relations Act, 29 U.S.C.

Se GOR ann 0 che ba ibawcenceaeveds 1

Section 8a(1), 29 U.S.C. 158(a)(1)...... , e

Section 8(a)(3), 29 U.S.C. 158(a)(3) .... 2,5

Section 8(a)(4), 29 U.S.C. 158(a)(4) .... 5

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

No. 83-86

S.E. NICHOLS OF OHIO, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE NATIONAL

LABOR RELATIONS BOARD IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-7a)

is reported at 704 F.2d 921. The Decision and Order of

the National Labor Relations Board (Pet. App. 8a-70a)

is reported at 258 N.L.R.B. 1.

JURISDICTION

The judgment of the court of appeals was entered on

April 15, 1983. The petition for a writ of certiorari was

filed on July 14, 1988. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTE INVOLVED

The relevant provisions of the National Labor Rela-

tions Act, 29 U.S.C. 151 et. seg., are set forth at Pet.

2-3.

(1)

STATEMENT

1. The pertinent facts, as summarized in the adminis-

trative law judge’s (ALJ’s) opinion, are as follows. Peti-

tioner operates a discount department store in New

Philadelphia, Ohio. In 1970, petitioner employed Lena

Barnhart as a clerk in its men’s wear department.!

Barnhart led a Union organizing campaign in 1971, and

on April 1, 1971, petitioner dismissed her. On March

17, 1972, the Board found that petitioner violated Sec-

tion 8(a)(3) and (1) of the Act, 29 U.S.C. 158(a)(3) and

(1), by discharging Barnhart because of union activities,

and ordered petitioner to reinstate her to her former

job and provide backpay.? The court of appeals en-

forced the Board’s order in full on December 27, 1972.

In July 1973 and again in March 1975, petitioner offered

to reinstate Barnhart, but both times assigned her ex-

clusively to scrubbing and cleaning duties instead of the

clerk’s position she had held during her original tenure.

Rather than accept demotion by continuing to work at

these menial tasks, Barnhart on both occasions left pe-

titioner’s employment after a brief period. In 1978, the

Board instituted contempt proceedings against petition-

er for its failure to comply with the court’s 1972 order.

On February 8, 1979, the court of appeals directed peti-

tioner to purge itself of contempt by offering full rein-

statement to Barnhart and by refraining from imposing

1 Barnhart was originally hired by petitioner on November

19, 1969, four days after the store was opened. Subsequently,

she requested and was granted leave to care for an ill son. She

returned to work in October 1970. (Pet. App. 24a-25a.)

2 195 N.L.R.B. 939 (Pet. App. 73a-95a).

8 472 F.2d 1228 (Pet. App. 72a).

undue or burdensome conditions or tasks upon her.‘

(Pet. App. 9a-10a n.3, 24a-26a.)

Barnhart returned to work at petitioner’s store on

February 27, 1979. Although the men’s wear clerk posi-

tion she held prior to her unlawful discharge still ex-

isted, she was not reinstated to that job (Pet. App.

29a). Instead, Barnhart was rotated between the lamp

department and the front registers during her first two

weeks back on the job (Pet. App. 30a; A. 230).5

On March 12, 1979, after Barnhart had worked in the

lamp department and at the front cash registers for

about two weeks, Assistant Manager James Dill asked

Barnhart to work for a week in the housewares depart-

ment to put the place in order (Pet. App. 30a; A. 231,

232, 1029). As Dill later explained, Barnhart “was kind

of a free girl [who] didn’t have any particular place to

go * * *” (Pet. App. 34a; A. 1029). When Barnhart be-

gan to work in the housewares department, it was high-

ly disorganized. Merchandise and boxes were on the

floor and the stock on the shelves was in disarray.

Barnhart straightened the shelves, stocking items

which were on the floor and putting merchandise where

it belonged. (Pet. App. 30a, 35a; A. 232-234.)

On Thursday, March 15, Barnhart arrived at work

and found another nonsupervisory employee, Paula

Powers, checking in a new order in the housewares de-

partment. Barnhart offered to assist Powers, but her

offer was refused (Pet. App. 30a; A. 234). Shortly

thereafter, Powers instructed Barnhart to stock the

new merchandise she had checked in. Barnhart declined

Powers’ directive and spoke with Assistant Manager

Robert Hathorn about nonsupervisory employees giv-

ing her orders. (Pet. App. 30a; A. 234-236, 883-884.)

4592 F.2d 326.

5 “A.” references are to the appendix in the court of appeals.

Hathorn evaded the issue because he viewed Barnhart

as a “special situation” (Pet. App. 30a), who had re-

turned to work under a court order (A. 894-895). Five

minutes later, Barnhart went back to work, cleaning

and reorganizing the housewares department (Pet.

App. 30a-31a; A. 236). On Saturday, March 17, Dill told

Barnhart she had been doing a “marvelous” job in the

housewares department, and offered her a housewares

position on a regular basis (Pet. App. 3la; A 237-238).

Barnhart accepted the offer, stating that she found the

work in the housewares department a “challenge” (Pet.

App. 3la; A. 237-238, 391).

The next day, Saturday, March 17, Barnhart again

worked in the housewares department and at the front

cash registers. On Sunday, Barnhart worked in place of

a sick employee at the front registers (Pet. App. 31a;

A. 240-241). On Monday, March 19, a lamp department

clerk, Francis Kee, told Barnhart that she was to re-

turn to the lamp department. Barnhart questioned

Kee’s order, observing that it was odd for a fellow em-

ployee to have more authority than Assistant Manager

Dill who had told Barnhart on Saturday that she would

work regularly in housewares. Kee replied that she was

conveying an order from Store Manager Robert Ricer.

Barnhart went to the lamp department and began to

perform a set of chores listed for her by Kee, including

cleaning and dusting tables, lamps, shelves, mirrors,

and picture frames. When she finished with the listed

assignments, she contacted Assistant Manager John

Caravati, and asked whether she should return to the

housewares department. Caravati instead told Barn-

hart that he would show her how to put the lamp stock-

room in order (Pet. App. 32a-33a; A. 241-243, 899-900).

While Barnhart and Caravati were standing on the

sales floor talking, Ricer approached them. Ricer re-

proached Barnhart for taking lengthy breaks, speaking

to her in angry tones, audible to anyone within earshot

(Pet. App. 33a, 35a). Ricer’s usual practice was to take

employees aside to reprimand them concerning minor

infractions (Pet. App. 36a; A. 243-245, 412-413, 806,

863-864). Ricer reprimanded Barnhart for taking 14 to

20 minute breaks when she was entitled to only 10 mi-

nute breaks (Pet. App. 33a, 35a; A. 243, 408, 801, 901).

Although the time card allegedly showing a 20 minute

break was ambiguous (Pet. App. 36a; A. 1562), Ricer

did not permit Barnhart an opportunity to explain.

Ricer concluded his reprimand by ordering Barnhart to

stay in the lamp department, and not to leave it for any

reason. (Pet. App. 33a; A. 243-244 410-411.) As Barn-

hart attempted a reply, Ricer told her to take the

chewing gum out of her mouth (Pet. App. 33a; A. 243).

Testimony showed that other employees took long

breaks or chewed gum and were not disciplined (Pet.

App. 35a-36a; A. 132-134, 244). Upset by her treat-

ment, Barnhart clocked out and left the store (Pet.

App. 33a; A. 244).

2. The ALJ found, inter alia, that petitioner violated

Section 8(a)(1), (3) and (4) of the Act, 29 U.S.C.

158(a)(1), (3) and (4), by constructively discharging

Barnhart on March 19, 1979. The Board affirmed (Pet.

App. 9a).

The ALJ found that Barnhart was subjected to dis-

parate treatment by being moved from place to place

and treated as “a utility girl assisting other employees”

(Pet. App. 34a-35a) and by being subjected to discipline

not meted out to other employees (Pet. App. 35a-36a).

He concluded that (Pet. App. 37a):

By reason of its [anti-union] animus, [petitioner]

was making icily clear that there was no way that

employee Barnhart could expect to be restored to

equal treatment with her peers among the employ-

ces. [Petitioner] was treating Barnhart in a man-

ner designed to cause her to quit.

3. The Board also found that petitioner owed Barn-

hart backpay of $34,121.47 plus interest, for the period

April 1, 1971, to February 27, 1979 (Pet. App. 12a).® In

so holding, the Board rejected petitioner’s contention

(Pet. App. 44a) that Barnhart failed to make reasonable

efforts to find interim employment.

The ALJ noted that Barnhart had registered weekly

with the Ohio Bureau of Employment Services until her

benefits ran out and then registered monthly (Pet.

App. 46a). He also noted (Pet. App. 49a) that in the al-

most 8-year period involved, Barnhart “made about 500

tries at obtaining employment” (Pet. App. 55a) and con-

tacted “more than 150 different employers” (Pet. App.

49a). The ALJ rejected petitioner’s contention (Pet.

App. 5la) that Barnhart’s efforts were not reasonable

because ‘“‘she did not make use of newspaper help

wanted advertisements, or hire a private employment

agency * * *.” He noted that Barnhart had been un-

aware of the fact that employment agencies might

charge a fee to prospective employers and not to the

applicant (Pet. App. 50a). He further noted that Board

precedent does not require use of newspaper ads and

pointed out that, although some of the employers whom

Barnhart had contacted personally had placed newspa-

per ads, none offered jobs to Barnhart. Barnhart had,

moreover, used newspaper ads on at least one occasion,

unsuccessfully (Pet. App. 52a-54a).

4. In one significant respect, the Board modified the

ALJ’s recommended Order. Citing its rule that “repeat

offenders and egregious violators of the Act” are sub-

ject to “broad injunctive relief’ (Pet. App. 9a n.3, quot-

ing NLRB vy. Hickmott Foods, Inc., 242 N.u.R.B.

1357, 1357 (1979)), and finding that petitioner’s repeat-

ed delays in compliance with Board and court orders

® Because petitioner constructively discharged Barnhart in

1979, her backpay continues to run until she is properly and ful-

ly reinstated (Pet. App. lla, 36a-37a).

“clearly demonstrates [petitioner’s] disregard for the

rights of its employees and its contempt for the Nation-

al Labor Relations Act and the decisions and orders of

the National Labor Relations Board and the U.S. Court

of Appeals for the Sixth Circuit” (Pet. App. 9a n.3), the

Board, acting sua sponte, modified the ALJ’s recom-

mended Order to include broad injunctive language (id.

at 12a-13a).

5. The court of appeals, in a per curiam opinion,

upheld the Board’s decision and enforced its order (Pet.

App. 7a). The court found that “the administrative rec-

ord offers ample support for the findings of fact and

credibility determinations which underlie the conclusion

that [petitioner] ‘constructively discharged’ Barnhart in

March 1979” (Pet. App. 5a).

ARGUMENT

Petitioner challenges the decision below on three

grounds: (1) that Barnhart was not constructively dis-

charged; (2) that Barnhart did not undertake “reason-

able efforts” to obtain interim employment and thus is

not entitled to the full backpay award; and (3) that cer-

tain evidence was erroneously excluded from the hear-

ing record. These issues are entirely fact-bound or lie

within the discretion of the Board, subject to review by

the court of appeals. Further review by this Court is

unwarranted.

1. In contending that Barnhart was not constructive-

ly discharged, petitioner essentially questions the

Board’s factual finding, upheld by the court of appeals,

that Barnhart was improperly denied a permanent as-

signment and:that the de facto “utility girl” position to

which she was consigned was not equivalent to her

former position (Pet. 10-19). “The crux of the issue,” as

the court of appeals observed (Pet. App. 4a), is “the

proper interpretation of the testimony introduced at

the administrative hearing.”’? The record reveals con-

flicting testimony concerning many of the events at is-

sue. The ALJ, judging credibility and evaluating the

weight of evidence, adopted one interpretation of the

evidence. His findings and conclusions have been re-

viewed and affirmed by the Board and the court of ap-

peals. Petitioner advocates a different interpretation of

the evidence (see Pet. 14-19). There is no need for fur-

ther review of these purely factual questions by this

Court. Universal Camera Corp. v. NLRB, 340 U.S.

474, 490-491 (1951). Petitioner’s claims that the ALJ

was motivated by “bias” or “prejudice” (Pet. 15, 17

n.6),8 that the Board “refused to objectively consider

the substantial evidence presented by [petitioner]” (id.

at 19), and that the court of appeals “ignored the signif-

icant evidence” (id. at 9, 20) are without merit.®

7 Petitioner’s argument relies in large part on challenges to

the credibility findings of the Board (Pet. 15, 15-16, 22). How-

ever, it is “the Board’s function and not [the court’s] to resolve

questions of fact and credibility when there is conflict in the tes-

timony.” NLRB v. Rawac Plating Co., 422 F.2d 1259, 1260 (6th

Cir. 1970); see also NLRB v. Cement Transport, Inc., 490 F.2d

1024, 1029 n.5 (6th Cir.), cert. denied, 419 U.S. 828 (1974).

8 Petitioner’s allegations of bias are based on nothing more

than the “feeling that the trier of fact, be he baseball umpire,

trial judge or hearing officer, is biased.” NLRB v. Lewisburg

Chair & Furniture Co., 230 F.2d 155, 156 (3d Cir. 1956); see

NLRB vy. Pittsburgh S.S. Co., 337 U.S. 656 (1949). The allega-

tions of bias were specifically considered and rejected by the

Board (Pet. App. 9a n.2).

® To the extent that petitioner contends that the requirement

to consider the record as a whole means that the Board must ex-

pressly cite all the evidence supporting its conclusions or rebut

every contention raised by the charged party, the substantial

evidence rule imposes no such requirement. See NLRB v.

Pearl Bookbinding Co., 517 F.2d 1108, 1112-1113 (lst Cir.

1975); Trumbull Asphalt Co. of Delaware v. NLRB, 314 F.2d

382, 383 (7th Cir.), cert. denied, 374 U.S.. 808 (1963), citing

United States v Pierce Auto Freight Lines, 327 U.S. 515, 529

(1946).

In any event, the Board’s finding is amply supported

by the record. Barnhart, who had held a permanent po-

sition as clerk in the men’s wear department before her

improper discharge, was, upon “reinstatement,” shifted

from department to department, despite being prom-

ised a permanent position in housewares, was given in-

structions by non-supervisory employees, and was

singled out for public reprimand. As the ALJ found, pe-

titioner’s treatment of Barnhart was an effort to “let[ ]

{her} know that she was just a utility girl assisting

other employees” (Pet. App. 35a)—not a co-equal clerk

with a permanent responsibility. !°

2. The General Counsel’s burden in a backpay pro-

ceeding under the Act is limited to showing the gross

backpay an employee would have earned if the employ-

er had not violated the Act. An employer can reduce its

backpay liability by establishing, as an affirmative de-

fense, that the employee incurred a willful loss of earn-

ings by failing to search for alternative employment.

NLRB vy. Reynolds, 399 F.2d 668, 669-670 (6th Cir.

1968). However, an employer cannot prove a failure to

mitigate merely by showing that the employee might

have achieved higher interim earnings. ‘I'he employee is

required only to make reasonable efforts to mitigate

loss of income. So long as such efforts are reasonable,

the employee is not held to “the highest standard of dil-

igence.” NLRB v. Arduini Manufacturing Corp., 394

F.2d 420, 423 (1st Cir. 1968). Petitioner does not dis-

pute these settled principles. Rather, it contends (Pet.

22-26) that Barnhart did not make a reasonably diligent

search for interim employment during the backpay pe-

riod. This issue also turns on the facts of this particular

10 Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423 (7th

Cir. 1962), relied on by petitioner (Pet. 21), is simply an applica-

tion of the same legal standards employed by the court below to

a different record.

case and raises no issue warranting review by this

Court.

In any event, the record amply supports the Board’s

finding that Barnhart’s efforts to seek employment

were reasonable. The record establishes that Barnhart,

who was 43 when she was discharged in 1971, a woman

of limited education and little job experience, skill, or

training, made about 500 attempts at obtaining employ-

ment during the backpay period (Pet. App. 55a), an av-

erage of more than one attempt per week (7bid.).1! She

also sought employment through the Ohio Bureau of

Employment Services (Pet. App. 46a). Petitioner

pointed to no specific job opening that Barnhart could

have obtained through a more diligent search of em-

ployment. Rather, petitioner’s argument that Barnhart

could have made more successful efforts is, as the ALJ

concluded (Pet. App. 51a), merely “speculation and as-

sumption that does not carry [petitioner’s] burden of

proof to show willful failure of the claimant to mitigate

damages.”

3. Petitioner’s final contention (Pet. 27-30) that it

was denied due process by virtue of the ALJ’s refusal

to admit evidence or issue subpoenas regarding Barn-

11 In NLRB vy. Flite Chief, Inc., 246 N.L.R.B. 407, 410-411

(1979), enforced in pertinent part, 640 F.2d 989 (9th Cir. 1981),

relied on by petitioner (Pet. 24-25), the employee made at-

tempts at employment only once a month and lied about a job

which she did obtain. The ALJ found that the infrequency of her

attempts to obtain work, “coupled with [her] lack of candor in

testifying about the single interim job that she did secure”

showed a lack of an honest attempt to secure interim employ-

ment. In NLRB v. Mercy Peninsula Ambulance Service, Inc.,

589 F.2d 1014, 1018 (9th Cir. 1979) (Pet. 25), the employee

looked for work an average of three times a month over a nine

month period while spending a considerable amount of time

promoting an employees’ association. Barnhart’s sustained ef-

forts to find work over an eight-year period plainly exhibit

greater diligence than was shown by the employees in the

above-cited cases.

hart’s withdrawal and subsequent refiling of her unfair

labor practice charge is without merit.

It is well established that the ALJ may, in his discre-

tion, refuse to admit evidence, permit testimony, or is-

sue subpoenas where he deems the evidence in question

to be cumulative or irrelevant. NLRB y. Tonkawa

Refining Co., 452 F.2d 900, 903 (10th Cir. 1971). In this

case petitioner had full opportunity to cross-examine

Barnhart to expose any doubts or uncertainties she

may have had concerning her case. The ALJ was within

his discretion to exclude additional irrelevant ques-

tioning about her filing and withdrawal of an earlier

charge. The withdrawal of an unfair labor practice

charge does not warrant an adverse inference against

the charging party; a charge may be withdrawn pend-

ing private settlement efforts or further investigation,

or for many other reasons. The ALJ similarly acted

within his discretion in denying petitioner’s motion to

subpoena and question the Regional Director regarding

his investigation of Barnhart’s case and his motives for

dealing with it as he did. Most, if not all, of the informa-

tion sought is protected by the attorney work product

privilege. J.H. Rutter Rex Mfg. Co. v. NLRB, 473

F.2d 223, 233-234 (5th Cir.), cert. denied, 414 U.S. 822

(1973). Petitioner has shown no reason to believe that it

was prejudiced by exclusion of any nonprivileged mate-

rial. See NLRB vy. Seine & Line Fishermen's Union,

374 F.2d 974, 981-982 (9th Cir.), cert. denied, 389 U.S.

913 (1967).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

REX E. LEE