Petition for Writ of Certiorari — Manhattan Eye, Ear & Throat Hospital v. National Labor Relations Board

Supreme Court brief1987

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861 1762 wy «2 1987

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

MANHATTAN EYE, EAR & THROAT HOSPITAL,

Petitioner,

—Vvs.—

NATIONAL LABOR RELATIONS BOARD and LOCAL 1199,

DRUG, HOSPITAL AND HEALTH CARE EMPLOYEES UNION,

RWDSU, AFL-CIO,

Respondents.

PETITION OF MANHATTAN EYE, EAR & THROAT

HOSPITAL FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Francis Carling

Counsel of Record for Petitioner

Leo T. Crowley

Rebecca Q. Boucher

WINTHROP, STIMSON, PUTNAM

& ROBERTS

40 Wall Street

New York, New York 10005

(212) 943-0700

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Second Circuit

and the NLRB erred in refusing to give

effect to the employer's valid

withdrawal of recognition of a union

that no longer enjoyed majority support,

because of an unrelated de minimis

employer unfair labor practice that did

not involve the anti-union majority?

2. Whether the Second Circuit

and the NLRB erred in holding that

statements to employees made by a

supervisor, without any coercion,

threat, or promise of benefit,

constituted an unfair labor practice?

-ii-

PARTIES

The following are the parties

who appeared before the Second Circuit

Court of Appeals in this case:

National Labor Relations Board,

Petitioner.

Local 1199, Drug, Hospital and

Health Care Employees Union, RWDSU,

AFL-CIO

Manhattan Eye, Ear & Throat

Hospital, Respondent.

-iii-

TABLE OF CONTENTS

Questions Presented for Review

Parties

Table of Contents

Table of Authorities

Opinions Below

Jurisdictional Statement

Relevant Statutes and Constitutional

Provisions

Statement of the Case

Argument

re The Decision Below that

the Hospital Violated

§ 8(a)(5) of the Act

Abrogates the Nurses‘

Right of Self Determination

Under § 7 of the Act.

ates.

TABLE OF CONTENTS

(cont'd)

Page

2 The Decision Below that the

Hospital Violated § 8(a)(1)

of the Act Abrogates the

Hospital's Right of Free

Speech Protected by the

United States Constitution

and § 8(c) of the Act. 29

os The Questions Presented

Deserve Supreme Court

Review Because the Decision

Below Conflicts With Those

of Other Circuits and

Because Such Questions Are

Likely to Recur. 38

Conclusion 42

TABLE OF AUTHORITIES

Cases Pages

Daisy's Original, Inc. v. NLRB,

468 F.2d 493 (5th Cir. 1972) aay 86s: OF

Frito-Lay, Inc. v. NLRB,

585 F.2d 62 (3d Cir. 1978) 35

Hotel, Motel and Restaurant Employees

and Bartenders Union v. NLRB,

785 F.2d 796 (9th Cir. 1986) 25

National Cash Register Co. v. NLRB,

494 F.2d 189 (8th Cir. 1974) aa

NLRB v. A & S Electronic Die Corp.,

423 F.2d 218 (2d Cir),

cert. denied, 400 U.S. 833 (1970) 33

NLRB v. Anvil Products, Inc.,

496 F.2d 94 (5th Cir. 1974) 26

NLRB v. Arrow Molded Plastics, Inc.,

653 F.2d 280 (6th Cir. 1981) 35

NLRB v. Gissel Packing Co.,

395 U.S. 575 (1969) passim

NLRB v. Lenkurt Electric Co.,

438 F.2d 1102 (9th Cir. 1971) 35

-vi-

TABLE OF AUTHORITIES

(cont'd)

Cases

NLRB v. NuSouthern Dyeing & Finishing,

Inc., 444 F.2d 11 (4th Cir. 1971)

NLRB v. Superior Sales, Inc.,

366 F.2d 229 (8th Cir. 1966)

NLRB v. Virginia Electric & Power Co.,

314 U.S. 469 (1941)

Peoples Gas System, Inc. v. NLRB,

629 F.2d 35 (D.C. Cir 1980) ©

Pittsburg and New England Trucking

Co. v. NLRB, 643 F.2d 175

(4th Cir. 1981)

Texaco, Inc. v. NLRB,

722 F.2d 1226 (5th Cir. 1984)

Constitutional Provisions

United States Constitution,

First Amendment

Pages

26, 28, 41,

-vii-

TABLE OF AUTHORITIES

(cont ‘d)

Pages

Statutes

National Labor Relations Act,

§ 7, 29 U.S.C § 157 passim

National Labor Relations Act,

§ 8, 29 U.S.C. § 158 passim

National Labor Relations Act,

§ 10(e), 29 U.S.C. § 160(e) 21

28 U.S.C. § 1254(1) 2-3

Regulations

29 C.F.R. § 101.12 21

Other

Second Circuit Court of Appeals,

Judicial Business of the

Second Circuit 6

Congressional Research Service

“Report on Implication for Economic

Policy and Labor Legislation of

Decline in Union Membership,”

reprinted in BNA Daily Labor Report

June 13, 1987, at D-1 to D-12 39

No.

In the Supreme Court of the United States

October Term, 1986

MANHATTAN EYE, EAR & THROAT HOSPITAL,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD and

LOCAL 1199, DRUG, HOSPITAL AND HEALTH

CARE EMPLOYEES UNION, RWDSU, AFL-CIO

Respondents.

PETITION OF

MANHATTAN EYE, EAR & THROAT HOSPITAL

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

OPINIONS BELOW

The opinion of Administrative

Law Judge Lawrence, dated August 16,

1985, is not reported. A copy is

included in the separately bound

appendix to this Petition at Al-Al08.

The opinion of the National Labor

Relations Board (the “Board") is dated

May 30, 1986 and is reported at 280 NLRB

No. 11; a copy is included in the

Appendix at Al09-Al30. The decision of

the Second Circuit Court of Appeals

enforcing the NLRB's order was entered

February 6, 1987 and is not yet

reported; a copy is included in the

Appendix at Al31-Al33. The Second

Circuit’s decision denying petitioner's

petition for rehearing was entered March

31, 1987 and is not reported; a copy is

included in the Appendix at A134-A135.

JURISDICTIONAL STATEMENT

Manhattan Eye, Ear & Throat

Hospital (the “Hospital”) seeks to

invoke the Court's jurisdiction under 28

a hen

U.S.C. § 1254(1). The judgment of which

review is sought was entered in the

Second Circuit Court of Appeals on

February 6, 1987, and the Second

Circuit's order denying the petition for

rehearing was entered on March 31, 1987.

RELEVANT STATUTES AND

CONSTITUTIONAL PROVISIONS

Section 7 of the National Labor

Relations Act, 29 U.S.C. § 157:

Employees shall have the right to

self-organization, to form, join, or

assist labor organizations, to

bargain collectively through

representatives of their own

choosing, and to engage in other

concerted activities for the purpose

of collective bargaining or other

mutual aid or protection, and shall

also have the right to refrain from

any or all of such activities except

to the extent that such right may be

affected by an agreement requiring

membership in a labor organization

as a condition of employment as

authorized in section 158(a)(3) of

this title.

Section 8(c) of the National

Labor Relations Act, 29 U.S.C. § 158(c):

The expressing of any views,

argument, or opinion, or the

dissemination thereof, whether in

written, printed, graphic, or visual

form, shall not constitute or be

evidence of an unfair labor practice

under any of the provisions of this

subchapter, if such expression

contains no threat of reprisal or

force or promise of benefit.

First Amendment to the United

States Constitution:

Congress shall make no law

respecting an establishment of

religion, or prohibiting the free

exercise thereof; or abridging the

freedom of speech, or of the press;

or the right of the people peaceably

to assemble, and to petition the

Government for a redress of

grievances.

Sections 8(a)(1),(5) of the

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

§ 158(a)(1),(5):

(a) It shall be an unfair labor

practice for an employer--

(1) to interfere with,

restrain, or coerce employees in the

exercise of the rights guaranteed in

section 157 of this title;

(5) to refuse to bargain

collectively with the

representatives of his employees,

Subject to the provisions of section

159(a) of this title.

jin

STATEMENT OF THE CASE

The Hospital seeks review of a

Second Circuit decision enforcing a

Board bargaining order which nullified a

plea by the majority of a bargaining

unit that recognition of an incumbent

union be withdrawn. The Board's only

basis for nullifying the will of the

majority was a finding of an earlier de

minimis unfair labor practice that had

no nexus to the demand for withdrawal of

recognition. As to the unfair labor

practice itself, the Board's decision

disregarded Section 8(c) of the National

Labor Relations Act (the “Act") and ‘the

First Amendment, in finding a violation

which consisted of nothing but an

expression of opinion, with no threat,

coercion or promise of benefit. On both

counts, the Second Circuit's enforcement

of the Board*s decision represents a

Significant curtailment of rights

heretofore recognized to be guaranteed

by the Act: with respect to the

employees, their right freely to choose

Or reject their representative in

accordance with Section 7 of the Act,

and with respect to the seeks enie the

right of supervisors to exercise free

Speech in accordance with Section 8(c)

of the Act. Because the Second

Circuit's endorsement! of the Board's

Although the Second Circuit in this

case acted by summary order rather

than by formal published opinion,

that is of no moment here. Such

dispositions have become commonplace

in the Second Circuit. According to

the Second Circuit's recent report

titled “Judicial Business of the

Second Circuit," in recent years the

percentage of its cases disposed of

by summary order or oral decision

ranged from 54% to 65.7%. Further-

more, since the fact that the Second

Circuit granted the Board's petition

for enforcement will doubtless be

reported (even though the text of

the summary order is not expected to

be published), the Board's opinion

in this case has for all practical

purposes become the law of the

Circuit.

ee eae nent, ent ae tee

new, restricted reading of those

provisions conflicts fundamentally with

the statutory scheme fashioned by

Congress and with the interpretation of

other circuits (especially with respect

to the propriety of a finding of a

violation of Section 8(a)(5) and

consequent entry of a bargaining order

under this Court's decision in NLRB v.

Gissel Packing Co., 395 U.S. 575

(1969)), the Hospital respectfully

petitions this Court to issue a writ of

certiorari.

The Facts

Petitioner Manhattan Eye, Ear &

Throat Hospital, the employer, is a

specialty surgical Hospital located on

the Upper East Side of Manhattan in New

York City. In the summer of 1984, it

became embroiled in a citywide hospital

strike called by District (now Local)

sitin

1199 of the Drug, Hospital and Health

Care Employees Union, RWDSU, AFL-CIO

(the “Union"). The Union represented

Separate bargaining units of service

workers and registered nurses at the

Hospital. The strike was called to

secure a benefit for the service workers

which was already enjoyed by the nurses;

though the nurses, to that extent, had

nothing at stake, they were required to

join the strike under threat of Union

fines. ALJ Dec. AS.’ Five days after

the strike began -- and before the

References preceded by “ALJ Dec." or

“Board Dec.” are to the decisions of

the Administrative Law Judge or of

the Board, followed by the page of

the Appendix where the referenced

material may be found. The facts

set forth herein are either

undisputed facts supported by the

record in the Court of Appeals or

facts found by the Administrative

Law Judge; as to the latter, the

Board affirmed those findings to the

extent consistent with its Decision

and Order. Board Dec. Allo.

unfair labor practice alleged in this

case had occurred -- a group of nurses

at the Hospital filed a decertification

petition with the Board. ALJ Dec.

A6-A7. An election to determine whether

the Union still had the support of a

majority of the nurses at the Hospital

was scheduled by the Board for

August 30, 1984.

After the decertification

petition was filed, nurses began to

cross the picket line and return to work

in greater and greater numbers. Many of

these nurses resigned from the Union

before crossing the picket line, to

protect themselves from Union fines;

that they were doing so was widely

known, and a frequent topic of

conversation among the nurses at the

Hospital. ALJ Dec. A62-A63. As more

nurses returned to work, the Hospital

opened more floors and admitted more

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patients. ‘In order to plan this process

more efficiently, the Hospital made

inquiries of the nurses who had not yet

returned to work as to their plans in

that regard. ALJ Dec. A47. There is no

dispute that those inquiries in and of

themselves were perfectly lawful.

A part-time weekend relief

Supervisor at the Hospital, Euphemia

James, whose regular job was as a staff

nurse at a local Veterans' Hospital, was

Campaigning in this period for

re-election to the presidency of the

Philippine Nurses Association. Part of

her campaign involved hing taiesions

calls to Filipino nurses all over the

city, including her co-workers at the

Hospital. When she told the Hospit®l

that, she was making such calls, she was

asked, while she was at it, to find out

whether any of the Hospital's nurses

with whom she spoke intended to come

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back to work. ALJ Dec. A47. In doing

so, James apparently took it upon

herself to express the view to a few

nurses that, if they decided to return

to work (which necessarily would have

entailed crossing the picket line), it

would be advisable to resign from the

Union first. ALJ Dec. A48-A69. The

handful of nurses with whom James spoke

conceded at the hearing below that she

did not threaten them or promise them

any benefit; that they did not feel in

any way coerced by her suggestions; and

that they did not alter their behavior

as a result. ALJ Dec. A67-A68. The

nurses told James that they would make

up their own minds about whether to come

back to work. ALJ Dec. A35-A46.

When the Union learned of these

conversations, it filed an unfair labor

practice charge to block the upcoming

secret ballot election. The Board

=~) =

cancelled the election pending further

investigation of the charge. The nurses

who had been campaigning for

decertification, chagrined at the

election cancellation and concerned

that, as the strike came to a close, a

collective bargaining agreement would be

negotiated for them by a union which no

longer enjoyed majority support,

immediately launched a new Campaign to

prevent the Hospital from bargaining

further with the Union. Within two

weeks, a majority of the staff nurses

had signed cards demanding that the

Hospital no longer recognize the Union

as their representative. Significantly,

those cards (which were in evidence

before the ALJ) revealed that the

anti-union majority who signed them did

not include any of the nurses who were

party to the conversations which the

Board later tound to be an unfair labor

“ADe

practice. Even more significantly,

there was no evidence before the Board

that any nurse in the anti-union

majority even knew about the

conversations which constituted the

unfair labor practice. On September 6,

1984, the cards demanding withdrawal of

recognition were presented to Hospital

management. On the basis of this clear

expression of majority sentiment, and

the obligations created thereby under

Section 7 of the Act, the Hospital

withdrew recognition of the Union on

September 7. ALJ Dec. A8, A80-A82.

More charges from the Union followed.

The Proceedings Below

The Board's General Counsel

issued a series of unfair labor practice

complaints based on the Union's charges,

which were consolidated and tried on

March 4-8, 1985, before Administrative

«lén

Law Judge Harold B. Lawrence (the

"ALJ"). The ALJ's decision was issued

On August 16, 1985. Al-Al08. With

respect to the charge concerning

James, '

the ALJ credited the Union's

witnesses’ versions of their

conversations with James, but held that

James had committed no unfair labor

practice. In view of the widespread

discussion and knowledge about nurses

resigning from the Union, he found it

impossible to determine from the

evidence presented whether James'

Suggestion that nurses resign was

intended to protect them from fines, or

was meant to cause general disaffection 7

from the Union. Since the Board's

General Counsel bore the burden of proof

on this issue, and the preponderance of

The ALJ's dismissal of al] the

charges except for the one involving

James was sustained by the Board, so

those charges are not discussed here.

iat i

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the evidence did not support the more

sinister inference, the ALJ dismissed

the complaint. ALJ Dec. A59-A6l.

The Board's General Counsel

took no exception to the ALJ's dismissal

of the charges concerning James, but the

Union took exception in that regard. On

May 30, 1986, the Board issued its

decision and order which was enforced by

the Second Circuit and which is

therefore at issue here. A109-A130.

The Board affirmed all of the ALJ's

findings and conclusions, except with

respect to James. As to that charge,

the Board held that it had not been

specifically proven at the hearing that

James was referring to the risk of Union

fines in giving advice about resigning

from the Union; thus, apparently, some

more sinister intent should have been

presumed by the ALJ (Board Dec.

Al119-Al20), even in the absence of any

=Lé<

evidence that James actually was aiming

to create general disaffection from the

Union. The Board concluded that the

Hospital, through James, had committed

an unfair labor practice. Board Dec.

Al23.

The issue of whether there had

been any causal relationship established

between James’ alleged unfair labor

practice and the subsequent demand by a

majority of the nurses that recognition

be withdrawn had been litigated before

the ALJ, but he declined to reach the

issue because he found that no unfair

labor practice had been committed. ALJ

Dec. AB9. In taking exception before

the Board to that finding, the Union

specifically raised the claim -- but did

not brief it or otherwise explain its

evidentiary basis -- that James‘ conduct

somehow tainted the withdrawal of

recognition. The Board not only

reversed the ALJ on whether James’

akBe

conversations violated Section 8(a)(1)

of the Act; it further held that such

violation invalidated the Hospital's

withdrawal of recognition and that the

withdrawal therefore violated Section

8(a)(5). The Board ordered the Hospital

to bargain with the Union, thereby

nullifying the expressed will of the

majority of the nurses that the Union no

longer represent them. The Board found

the Section 8(a)(5) violation and

imposed this drastic remedy without even

purporting to find any causal link

between James‘ conversations and the

majority petition for withdrawal of

recognition. Rather, the Board simply

said that the Hospital's good faith

doubt as to the Union's majority support

did not occur in a “context” free of

unfair labor practices aimed at causing

union disaffection. Board Dec. Al22.

Thus, for what was at most a de minimis

nite

violation by a low-level part-time

supervisor which neither coerced nor

harmed anyone, the Board found a Section

8(a)(5) violation and issued a

bargaining order which extinguished the

nurses’ right to select or reject their

representative under Section 7 of the

Act.

By summary decision filed on

February 6, 1987, the Court of Appeals

granted a Board application to enforce

its order. Al3l. On March 31, 1987,

the Court of Appeals denied the

Hospital's petition for rehearing with a

suggestion for rehearing in banc. A134.

ARGUMENT

I. The Decision Below that the Hospital

Violated § 8(a)(5) of the Act

Abrogates the Nurses’ Right of Self

Determination Under § 7 of the Act.

Perhaps the most significant

aspect of the Board's decision in this

nite

case is not anything it said, but rather

what it did not say: The Board never

found any causal link between the

Hospital's unfair labor practice

(assuming that it occurred at all“)

and the Hospital's withdrawal of

recognition of the Union based on a good

faith doubt about the Union's majority

Status. On the contrary, the Board

seems to take the position that James'

statements automatically precluded the

nurses from exercising their rights

under Section 7 of the Act: “Having

found this violation, we further find

that the [Hospital‘’s] asserted good

faith doubt of the Union's continued

In point II below we show that the

Second Circuit erroneously sustained

the Board's finding of an unfair

labor practice, since the alleged

unfair labor practice consisted

solely of speech protected by § 8(c)

of the National Labor Relations Act,

29 U.S.C. § 158(c) and by the First

Admendment.

majority status was not raised in a

context free of unfair labor practices

of the type aimed at causing

disaffection from the Union." A124. In

other words, the Board is saying that

because of the Hospital's unfair labor

practice, the Board would not allow the

nurses to exercise the rights that

Congress guaranteed them in Section 7 of

the Act, to “refrain” from bargaining

- collectively through a union. The Board

did not even purport to find that the

anti-union majority who petitioned the

Hospital to withdraw recognition was

even aware of, much less influenced by,

James’ statements to a few of the other

nurses.

To reject the will of the

majority in this case, as the Board and

the Circuit Court have done, is

fundamentally at odds with the purpose

of Section 7 of the Act, which includes

protecting the majority's right to

refuse representation. Indeed, until

the Second Circuit granted bibs Board's

petition for enforcement in this

case,’ the Circuit Courts of Appeal

had uniformly held that an unfair labor

practice could only invalidate an

. In the Second Circuit Court of

Appeals, counsel for the Board

asserted that the Court could not

address the absence of a causal link

between James' conversations and the

majority's petition to the Hospital,

under Section 10(e) of the Act, 29

U.S.C. § 160(e), because the

Hospital had not raised that issue

in the proceedings before the Board

(see the Board's brief on appeal, at

pp. 19-23). In fact, the issue was

before the Board. It had been

litigated before the AILJ and

therefore before the Buard: the

Hospital's brief to the ALJ devoted

16 pages to the issue, and the

Board's own regulations require that

it review the entire record before

the ALJ, including the briefs. 29

C.F.R. § 101.12. Furthermore, the

Union had raised the issue before

the Board itself. The Court of

Appeals, in basing its decision on

the "substantial evidence” rule

rather than on Section 10(e),

evidently rejected the Board's

argument in this regard.

: eel

-22-

otherwise proper withdrawal of

recognition if there was a causal link

between the unfair labor practice and

the disaffection of a majority of the

bargaining unit, and had refused to

enforce Board orders where such a link

did not exist.

For example, in Daisy's

Originals, Inc. v. NLRB, 468 F.2d 493

(Sth Cir. 1972), like here, a possible

decertification election was blocked, at

first because a current contract was in

effect and then because the union filed

unfair labor practice charges; under

Board policy, the mere filing of unfair

labor practice charges blocks an

election. Id. at 502. The majority of

the employees, having no other means of

asserting their Section 7 rights,

petitioned the employer directly to

withdraw recognition. Id. at 495. The

employer refused to bargain with

= 1

the union, which then filed unfair labor

practice charges under Section 8(a)(5)

because of the employer's refusal to

bargain. ‘Id. at 496. The Board found

that the employer had committed an

unfair labor practice in the form of

communications to employees that

promised benefits if they were not

covered by a union contract, and then

ruled that the employer had therefore

improperly withdrawn recognition of the

union in violation of Section 8(a)(5)

and ordered the employer to bargain with

the union. Id. at 498.

The Court reversed the finding

of a Section 8(a)(5) violation and

refused to enforce the bargaining

order. It noted that a bargaining order

has the effect of stripping the

employees of their Section 7 rights, and

reviewed the law of bargaining orders as

a remedy in the wake of the leading case

of NLRB v. Gissel Packing Co., 395 U.S.

575 (1969). 468 F.2d at 499-502. The

court then indicated that the same

considerations which lead courts to be

circumspect in enforcing bargaining

orders in the context of a new union

should also apply where the bargaining

order is in favor of an incumbent

union. The court found no violation of

Section 8(a)(5) and refused to enforce

the bargaining order because “the need

to effectuate employee freedom of choice

is as equally an important goal as is

the need to deter and remedy employer

misconduct .. . . Where the unfair

labor practices found have not been

determined to be ‘sufficiently flagrant

so that an election could not be held or

should be set aside under the Gissel

rule,’ a bargaining order remedy to

technical violations of § 8(a)(1) is

unwarranted." 468 F.2d at 503.

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