Opposition — Al Bryant, Inc. v. National Labor Relations Board

Office - Supreme Court, U.S.

FILED

No. 83-446 DEC 12 19863

ALEXANDER L. STEVAS,

In the Supreme Court of the Hnited Statee* —_

OcTOBER TERM, 1983

AL BRYANT, INC., ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD 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

JouHN E. HiGoins, Jr.

Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel

NoRTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

Ropert C. BELL, Jr.

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether the NLRB correctly found that the unions’

unfair labor practice charges were filed within the six-

month limitations period imposed by Section !0(b) of the

National Labor Relations Act.

2. Whether the NLRB properly exercised its discretion

in refusing to defer to an arbitration decision that did not

consider or decide the unfair labor practice issue presented

to the Board.

(I)

TABLE OF CONTENTS

Page

Opinions below .....cccsccccccccsvcscccccsccsecs |

PTT ee l

UNE. occ ccc ccccccvccessvcntsvenvvdveweuneen l

ATGOMIOM 2c ccccccrccccvecccetescccvesecesovenss 7

I a iinicss i vdnice cd ectdsankeose eee ola

TABLE OF AUTHORITIES

Cases:

Carey v. Westinghouse Electric Corp.,

FIO WA. BOE. hecccdsanvereowsebatupasen 10-11

Chesapeake & Potomac Telephone Co. v. NLRB,

se | rrr errriy rr ri ry owt

Cone Mills Corp. v. NLRB, 413 F.2d 445 ....... 8

General Motors Acceptance Corp. v. NLRB.

476 F.28 GSO occ cc eveeeves eg REETN sos veces 8

Hammermill Paper Co. v. NLRB, 658 F.2d

155, cert. denied, No. 81-1438 (Apr. 18,

PORES © civcncnnncsénesdadee, dankaunkensnes 12

J. Ray McDermott & Co. v. NLRB, 571 F.2d

850, cert. denied, 439 U.S. 893 ........ee evens 8

Local 1104, Communications Workers v. NLRB,

520 F.2d 411, cert. denied, 423 U.S. 1051 ...... 9

Local Lodge No. 1424, International Association

of Machinists v. NLRB, 362 U.S. 411,

cert. denied, No. 81-1438 (Apr. 18, 1983) .... 7,8

Mack Trucks, Inc., 230 N.L.R.B. 993, enforced,

573 F.2d 1302, cert. denied, 439 U.S. 825 ... 9-10

(IIT)

IV

Cases-—Continued:

NLRB v. Acme Industrial Co., 385 U.S.

GOR, eicinccvecccccrensecccevcesicceseens

NLRB vy. Basic Wire Products, Inc.,

DEE cctvceacnaaesesebeeneckweus

NLRB v. Erie Marine, Inc., 465 F.2d 104 ....

NLRB vy. Field & Sons, Inc., 462 F.2d 748 ...

NLRB vy. General Warehouse Corp.,

by | . Perr ererrerrr rr rerer raat

NLRB vy. Los Angeles Yuma Freight Lines,

STE SEE ccccnuacscdenvevenvssaveees

NLRB vy. McCready & Sons, Inc.,

PE AMEDD ve vececccceccesdevesesevens

NLRB vy. Plumbers & Pipe Fitters Local

Se cae A Le ON 6 6p 00 0806 0.00 0.0.0:

NLRB vy. Serv-All Co., 491 F.2d 1273 .......

NLRB v. Strong, 393 U.S. 357 ...cccccscoes

Radio & Television Broadcast Technicians

Local Union 1264 v. Broadcast Service of

Mobile, Inc., 380 U.S. 255 .......cccceees

Raytheon Co., 140 N.L.R.B. 883, enforcement

GUNG, SEO PARE STE nw ccc cccctccccvecee

Spielberg Manufacturing Co., 112 N.L.R.B.

POO Sceerwececccesccesctccuasevevecesi

HE SOCRO sco es eset srocescosaceseesads

United Parcel Service, Inc. v. NLRB,

706 F.2d 972, cert. denied, No. 83-71

nC + 6h 6 rckks sired abdanemmete

Page

Page

Statutes:

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

(& Supp. V) 151 ef seq. :

§ 8(a)(1), 29 U.S.C. 158(a)(1) . 0. eee ee eee eee 2

§ 3(a)(5), 29 U.S.C. 1S8(a)(5) .... ce ceeceees 2

6 Of), 29 U.S.C. ISO) .cccccceccovcccees 10

§ 10(a), 29 U.S.C. 160(a) 2... .cccccccvcees 10

§ 10(b), 29 U.S.C. 160(b) ..... 5, 6, 7, 8, 9, 10

Miscellaneous:

H.R. Rep. 245, 80th Cong., Ist Sess. (1947) ...... 7

Jn the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 83-446

AL BRYANT, INC., ET AL., PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A26) is

reported at 711 F.2d 543. The decision and order of the

National Labor Relations Board (Pet. App. A27-A114),

including the attached decision of the administrative law

judge, is reported at 260 N.L.R.B. 128.

JURISDICTION

The judgment of the court of appeals (Pet. App. Al15-

A116) was entered on July 25, 1983. The petition for a writ

of certiorari was filed on September 14, 1983. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners Al Bryant, Inc. (ABI), Harrisburg Drywall

and Construction Corp. (Harrisburg Drywall), and Al Bry-

ant Associates, Inc. (Associates) are contractors engaged in

(1)

2

the construction of ceilings, floors and drywall. The National

Labor Relations Board found that ABI and Harrisburg

Drywall constitute a single employer under the National

Labor Relations Act, that Associates is the alter ego and a

disguised continuance of ABI and Harrisburg Drywall, and

that the companies’ employees together constitute an

appropriate bargaining unit (Pet. App. A29, A106-A107).

The Board found that the companies violated Section

8(a)(5) and (1) of the Act, 29 U.S.C. 158(a)(5) and (1), by

refusing to recognize the charging unions as the exclusive

bargaining representatives of Harrisburg Drywall and

Associates employees and by refusing to apply the terms of

agreements between the unions and ABI to the other two

companies (Pet. App. A106-A108). The court of appeals

affirmed (id. at Al-A26). Petitioners do not contest these

findings, but rather challenge only the timeliness of the

unfair labor practice charges involved and the Board's re-

fusal to defer to an arbitration award in making its “single

employer” finding.

1. ABI was formed by Albert Bryant in 1967. ABI is a

member of the Central Pennsylvania Subcontractors Asso-

ciation (CPSA), which conducts labor negotiations on

behalf of its members and which has negotiated agreements

with both charging unions, the United Brotherhood of Car-

penters District Council of Western Pennsylvania (West-

ern) and Keystone District Council (Keystone). ABI has

been bound by these agreements with the unions since 1974

(Pet. App. A49-A51).! Keystone and Western operate in

different geographic areas.

In 1971, Bryant acquired ownership of Harrisburg Dry-

wall. Harrisburg Drywall at no time signed any agreement

with either union. Harrisburg Drywall engaged in the same

'ABI signed a separate agreement with the International Carpenters

Union in 1972 (Pet. App. A46).

3

construction activity as ABI but functioned as the nonun-

ion component of a “double breasted” operation with ABI

(Pet. App. A49).

Beginning in 1977, Keystone began to receive complaints

from carpenters employed by Harrisburg Drywall in Key-

stone’s jurisdiction that they were being paid less than union

scale. On March 19, 1979, Keystone sent ABI a letter assert-

ing that Harrisburg Drywall was related to ABI and that

Harrisburg Drywall was covered by the collective bargain-

ing agreement between CPSA and Keystone. Harrisburg

Drywall continued to operate on a nonunion basis. There-

after, Keystone initiated grievance and arbitration proceed-

ings against ABI seeking to bind Harrisburg Drywall to the

terms of the contract (Pet. App. Al2-A13, A51).

Keystone contended in arbitration that Harrisburg Dry-

wall, as a subsidiary of ABI, was bound by the CPSA

agreement as a matter of contract and also as a matter of

federal labor law because the two companies constituted a

single employer under the Act. The arbitrator expressly

declined to resolve the statutory issue and ruled that Har-

risburg Drywall was not a subsidiary under the contract

(Pet. App. A88-A90; see C.A. App. 777-780).? He therefore

?2The arbitrator stated (C.A. App. 777, 779-780; see Pet. App. A88):

The Union in effect argues that Al Bryant, Inc. * * * established

a subsidiary, Harrisburg Drywali and Construction Corporation;

and that it has violated these Agreements in not requiring the

subsidiary to comply with their terms * * *. Furthermore, the

Union contends that, under rulings of the National Labor Rela-

tions Board, these two companies should be regarded as a “single

employer” for purposes of the National Labor Relations Act* * *

and that under the NLRB's Collyer deferral policy “the Arbitrator

should rule on the statutory issue as well as the contractual one.”

[T]he basic question before the Arbitrator is whether Harrisburg

Drywall is a “subsidiary” or “subsidiary building construction

4

denied Keystone’s grievance on October 29, 1979. On

August 10, 1979, while the arbitration was pending, Key-

stone filed unfair labor practice charges against ABI and

Harrisburg Drywall! for “hiring non-Union employees in

contravention of its obligation under the collective bargain-

ing agreement” and for “having a non-Union subsidiary and

refusing to recognize the Union as a representative of the

employees employed by Harrisburg Drywall” (Pet. App.

A6, A52).3

As found by the administrative law judge (ALJ), Western

learned in January 1979 that Harrisburg Drywall had been

awarded a contract in its jurisdiction for work on the Polk

Center. A Western business representative telephoned Mr.

Al Bryant and was informed that Harrisburg Drywall

intended to perform the contract on a nonunion basis,

notwithstanding Western's assertion that the job was

covered by the CPSA. In May 1979 Bryant spoke with

another Western official, who again asserted that the job

should be performed under the union contract. Bryant

responded, “I'll get back to you,” but did not do so. Harris-

burg Drywall began work on the Polk Center in June 1979

and performed the job on a nonunion basis. Pet. App.

A55-A56. Western filed an unfair labor practice charge on

October 3, 1979, alleging that ABI “d/b/a Harrisburg

Drywall” had “{s]ince.on or about June |, 1979, and at all

company” of Al Bryant, Inc. under * * * the Agreement. * * * In

the Arbitrator’s view, his role is limited to interpreting these terms

of the Agreement, and it does not extend to enforcing the provi-

sions of the Labor Management Relations Act.

3Petitioner Associates was not formed until 1979. Keystone filed an

amended unfair labor practice charge on October 6, 1980, charging

Associates and the other two companies with a refusal to bargain in

good faith with Keystone (Pet. App. A6, A52-A53). Petitioners chal-

lenge the timeliness only of Keystone’s initial charge against ABI and

Harrisburg Drywall.

5

times thereafter, * * * failed and refused to bargain collec-

tively and in good faith with [Western]” (Pet. App. Aé6).

2. a. The Board, substantially adopting the findings and

conclusions of the ALJ, found that the charges of both

unions were timely filed. With respect to the Western charge

filed on October 3, 1979, the Board found that the six-

month limitation period of Section 10(b) of the Act, 29

U.S.C. 160(b),4 commenced when Harrisburg Drywall

began work on the Polk Center in June 1979, not in January

1977 when Western learned of Bryant's intention not to

abide by the CPSA contract (Pet. App. A57). With respect

to the Keystone charge of August 10, 1979, the Board found

that ABI’s failure properly to respond to the union’s March

19, 1979 letter constituted a refusal to bargain that com-

menced the Section 10(b) period, although Keystone had

been aware of Harrisburg Drywall’s nonunion operations

in its jurisdiction for more than six months before the

charge was filed (Pet. App. A57-A61).

b. The Board also determined that petitioners consti-

tuted a single employer under the Act. In this connection,

the Board refused to defer to the arbitrator’s finding that

Harrisburg Drywall was not an ABI “subsidiary” under the

contract. The Board explained (Pet. App. A29-A30 n.2):

We agree with the Administrative Law Judge that

deferral to the arbitrator's award which was intro-

duced into evidence is inappropriate in the instant case.

In so doing, we find that the arbitrator expressly

declined to resolve the statutory issue before us. Thus,

in his decision the arbitrator expressly stated that the

“basic question before the Arbitrator is whether

‘Section 10(b) provides that “no complaint shall issue based upon any

unfair labor practice occurring more than six months prior to the filing

of the charge with the Board.”

6

Harrisburg Drywall is a ‘subsidiary’ or ‘subsidiary

building construction company’ of Al Bryant Inc... .”

within the intendment of the contract. He specifically

stated that his role was limited to interpreting the terms

of the agreement and did “not extend to enforcing the

provisions of the Labor Management Relations Act.”

The arbitrator then found that the NLRB and court

cases cited to him by the Union were not enlightening

as to the definition of a “subsidiary” and thus he relied

on dictionary definitions. Based on the tenor of the

arbitrator's entire decision, it is clear he did not con-

sider the statutory issue. It is also clear that the arbitra-

tor did not have the same evidence before him as in the

instant case.

3. The court of appeals affirmed (Pet. App. Al-A26).

The court found that the Board’s conclusion that the

charges were timely filed was “consistent with well-

established legal principles” and with the policies underly-

ing Section 10(b) (Pet. App. A7-A12).

With respect to the Board’s refusal to defer, the court of

appeals explained (Pet. App. A15):

The requirement that the statutory issues have been

presented to and decided by the arbitrator is of particu-

lar significance to insure that the Board does not abdi-

cate its responsibility to protect statutory rights. * * *

The Board recently reaffirmed it would not defer

“unless the unfair labor practice issue before the Board

was both presented to and considered by the arbitra-

tor.” Suburban Motor Freight, Inc., 247 N.L.R.B. 146,

146-47 (1980). Given the arbitrator's explicit statement

that he was not resolving the statutory issue, and the

fact that he did not have all the relevant evidence

before him, we cannot hold that the Board abused its

discretion in refusing to defer to the arbitral award.

7

ARGUMENT

1. Petitioners contend (Pet. 9-20) that the unfair labor

practice charges were not timely filed. They contend that

the unfair labor practice against Western occurred when

Bryant stated his intention in January 1979 not to adhere to

the CPSA contract on the Polk Center job. They further

contend that any unfair labor practice affecting Keystone

occurred when Harrisburg Drywall began operating in its

area in 1977, and that the refusal to respond to the union's

March 19, 1979 letter was not an independent violation.

These contentions were correctly rejected by the Board and

the court below and raise no issue warranting review by this

Court.

a. The Board’s position that Keystone’s March 19, 1979

letter triggered the limitations period is consistent with this

Court's decision in Local Lodge No. 1424, International

Association of Machinists v. NLRB (Bryan Manufactur-

ing Co.), 362 U.S. 411 (1960), and every court of appeals

decision that has considered the effect of Section 10(b). In

Bryan Manufacturing Co., the Court described the policy

underlying Section 10(b) as intended “to bar litigation over

past events’ after records have been destroyed, witnesses

have gone elsewhere, and recollections of the events in

question have become dim and confused * * *.’ "362 U.S.

at 419 (quoting H.R. Rep. 245, 80th Cong., Ist Sess. 40

(1947)). The Court held that Section 10(b) bars a charge

grounded on events predating the limitations period “where

conduct occurring within the limitations period can be

charged to be an unfair labor practice only through reliance

on an earlier unfair labor practice” (362 U.S. at 416-417).

Section 10(b) does not bar a charge where conduct within

the period constitutes an unfair labor practice in and of

itself, even though related events predate the limitations

period (id. at 416).

8

In Bryan Manufacturing Co., the only act within the

Section 10(b) period was the enforcement of a union secu-

rity agreement valid on its face. This activity, by itself, was

benign and could be impeached only by resorting to an

event outside the limitations period — i.e., by showing that

the union lacked majority status when it entered into the

agreement. The Court therefore held that the complaint was

barred. Here, by contrast, petitioners’ refusal to bargain

after March 19, 1979 was unlawful in itself without refer-

ence to the illegality of prior events.

Because an employer's general duty to bargain is a con-

tinuing obligation, each refusal constitutes a separate and

independent unfair labor practice. J. Ray McDermott &

Co. v. NLRB, 571 F.2d 850, 858 (Sth Cir.), cert. denied, 439

U.S. 893 (1978); NLRB v. Basic Wire Products, Inc., 516

F.2d 261, 267-268 (6th Cir. 1975). Based on the interrela-

tionship of the companies at the time of -he March 19

demand and their obligation to apply the contract at that

time, the March 19 refusal may be found to violate the Act

without regard to any prior refusals to bargain. In such

circumstances, the courts have uniformly held that Section

10(b) is no bar to an unfair labor practice finding.‘

‘See, e.g., Chesapeake & Potomac Telephone Co. v. NLRB, 687

F.2d 633, 637-638 (2d Cir. 1982) (employer refusals to produce informa-

tion related to grievance proceeding); J. Ray McDermott & Co. v.

NLRB, supra (repeated refusals to bargain); NLRB v. Basic Wire

Products, Inc., supra (repeated refusals to bargain); General Motors

Acceptance Corp. v. NLRB, 476 F.2d 850, 853-854 (ist Cir. 1973)

(employer campaign to discredit union involving conduct over a two-

year period); NLRB v. Erie Marine, Inc., 465 F.2d 104, 107-108 (3d

Cir. 1972) (employer domination of joint employee-employer commit-

tee over a period of three years); Cone Mills Corp. v. NLRB, 413 F.2d

445, 448-449 (4th Cir. 1969) (employer refusals to provide information

concerning pension plan); see also NLRB v. Los Angeles Yuma Freight

Lines, 446 F.2d 210, 215 (9th Cir. 1971) (employer refusal to bargain,

after union makes renewed request within the limitations period, would

constitute independent violation).

9

The cases cited by petitioner (Pet. 19)(NLRB v. Serv-All

Co., 491 F.2d 1273 (10th Cir. 1974); NLRB v. McCready &

Sons, Inc., 482 F.2d 872 (6th Cir. 1973); NLRB v. Field &

Sons, Inc., 462 F.2d 748 (ist Cir. 1972)) are not to the

contrary. Those cases involve an employer's refusal to ex-

ecute within the Section 10(b) period an individual union

contract following negotiation of a multiemployer agree-

ment that predated the period. The refusal to sign, standing

alone, is not an unfair labor practice; it can be found to be

one only by reference to events surrounding the multiem-

ployer negotiations (i.e., whether the employer was a

member of the multiemployer unit and was bound by the

negotiations). Indeed, the court in Field & Sons expressly

distinguished that case (“a failure to perform a particular

act”) from the situation presented here, involving an

employer's repeated breach of the general duty to bargain,

where the violation can be determined based on the status of

the employer within the limitations period. See 462 F.2d at

751; see also Pet. App. A12.°

b. The Board's conciusion that the Western charge was

timely is consistent with the well-established principle that a

statement of intent to commit an unfair labor practice does

not start the Section 10(b) period running. The limitations

period begins only when the unfair labor practice occurs.

NLRB vy. Plumbers & Pipe Fitters Local Union 214, 298

F.2d 427, 428 (7th Cir. 1962); see also Local 1104, Commun-

ications Workers v. NLRB, 520 F.2d 411, 416 (2d Cir.

1975), cert. denied, 423 U.S. 1051 (1976); Mack Trucks,

Inc., 230 N.L.R.B. 993, 1000 (1977), enforced, 573 F.2d

*There is no merit to petitioner's contention (Pet. 18) that the decision

below effectively eliminates Section 10(b) and opens the door to large

backpay awards stretching far back in time. To the contrary, the remedy

is limited to six months before filing of the charge. See Pet. App. Al2

n.4.

10

1302 (3d Cir.), cert. denied, 439 U.S. 825 (1978). The viola-

tion here occurred when Harrisburg Drywall violated the

CPSA contract by beginning the Polk Center job in June

1979, not when Mr. Bryant merely stated his intention in

January to perform the job on a nonunion basis.

Moreover, contrary to petitioners’ contention (Pet. 14-

15), even if Mr. Bryant’s statement to Western in January

were itself a violation of the Act, Section 10(b) would not

bar a charge based on the subsequent refusal to apply the

contract at Polk Center in June. Under the principles dis-

cussed above, the refusal to apply the contract in June 1979

was an independent and complete violation notwithstand-

ing conduct that might have occurred earlier.’

2. Petitioners contend that the Board erred in refusing to

defer to the arbitrator’s finding that Harrisburg Drywall

was not a “subsidiary” under the ABI contract. They con-

tend that this finding was a “complete defense” to Key-

stone’s unfair labor practice charge (Pet. 22). This conten-

tion does not warrant review by this Court.

Section 10(a) of the Act, 29 U.S.C. 160(a), vests the

Board with exclusive authority to adjudicate and remedy

unfair labor practices. See NLRB v. Acme Industrial Co.,

385 U.S. 432, 436-437 (1967). Although the Board may in its

discretion elect to defer to arbitral processes, it is not com-

pelled to do so when an unfair labor practice has been

committed. See NLRB v. Strong, 393 U.S. 357, 360-362

(1969). When the Board does assert jurisdiction, its unfair

labor practice decision takes precedence over arbitral

awards that enforce private contract rights. See Carey

7Petitioners’ reference (Pet. 11-15) to Section 8(f) of the Act, 29

U.S.C. 158(f), governing pre-hire agreements is wholly irrelevant. There

is no question here of the majority status of the unions, and the ALJ

explicitly found that Section 8(f) was not applicable (Pet. App. A74

n.33).

v. Westinghouse Electric Corp., 375 U.S. 261, 272 (1964). In

exercising its discretion, the Board has determined to defer

to an arbitration decision only if (1) the arbitrator’s decision

is not clearly repugnant to the purposes and policies of the

Act; (2) the arbitration procedures are fair and regular; (3)

the parties have previously agreed to be bound by the

arbitrator’s decision; and (4) the arbitrator has considered

and decided the unfair labor practice issue presented to the

Board. Spielberg Manufacturing Co., 112 N.L.R.B. 1080,

1082 (1955); Raytheon Co., 140 N.L.R.B. 883, 884-885

(1963), enforcement denied on other grounds, 326 F.2d 471

(Ist Cir. ‘°*

Asp .eu above (page 3, supra), the Keystone grievance

argued oth that Harrisburg Drywall was a subsidiary of

ABI as a matter of contract and that the two companies

constituted a “single employer” under the Act. The arbitra-

tor expressly declined to decide the statutory question

whether the connection between the companies supported a

finding of an unfair labor practice, explaining that the

question before him was whether Harrisburg Drywall was a

subsidiary under the contract. He specifically stated that his

role was “limited to interpreting [the contract terms], and it

does not extend to enforcing the provisions of the Labor

Management Relations Act” (Pet. App. A88; C.A. App.

779-780).

The arbitrator relied on two dictionary definitions of

“subsidiary” in deciding the contractual question.* That

inquiry differs substantially from the statutory single

8The arbitrator stated (Pet. App. A89; C.A. App. 780):

Here, the parties have not defined what should be considered to

be a “subsidiary.” Webster's New World Dictionary (College

Edition) defines a “subsidiary” in part as:

a company controlled by another company which owns

most of its shares...

12

employer question, in which the Board examines the evi-

dence as to interrelation of operations, common manage-

ment, centralized control of labor relations, and common

ownership. See Radio & Television Broadcast Technicians

Local Union 1264 v. Broadcast Service of Mobile, Inc., 380

U.S. 255, 256 (1965). Moreover, as the Board noted, the

arbitrator did not have before him all the evidence relevant

to the statutory question (Pet. App. A29-A30 n.2).9

The Board reasonably may decline to defer where, as

here, the unfair labor practice and contract claims pose

substantially different issues and the arbitrator does not

reach the statutory claim. Hammermill Paper Co. v.

NLRB, 658 F.2d 155, 161 (3d Cir. 1981), cert. denied, No.

81-1438 (Apr. 18, 1983); Suburban Motor Freight, Inc., 247

N.L.R.B. 146, 146-147 (1980). Also, the Board may reason-

ably decline to defer where, as here, the arbitrator has not

considered “all the facts required to decide [the statutory

issue].” NLRB v. General Warehouse Corp., 643 F.2d 965,

969 (3d Cir. 1981) (footnote omitted). See also United Par-

cel Service, Inc. v. NLRB, 706 F.2d 972 (3d Cir. 1983), cert.

denied, No. 83-71 (Nov. 7, 1983).

Black’s Law Dictionary, Fourth Edition (revised) 1968 states:

Subsidiary Corporation. One in which another corporation

owns at least a majority of the shares and thus has control

*For example, the arbitrator did not have the employment rosters of

Harrisburg Drywall or any information that Mr. Bryant signed bids for

Harrisburg Drywall (Pet. App. A30 n.2). This information was availa-

ble to the Board (ibid.).

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

WILLIAM A. LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel

NorRTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant Generai Counsel

RosertT C. BELL, JR.

Attorney

National Labor Relations Board

DECEMBER 1983

DOJ-1983-12