Reply Brief — NLRB v. Financial Institution Employees

Supreme Court, U.S.

FILED

, OCT 31 1906

2) ?

Lae JOSEPH F. SPANIOL, JR.

Nos. 84-1493 and 84-1509 CLERK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

NATIONAL LABOR RELATIONS BOARD, PETITIONER

V.

FINANCIAL INSTITUTION EMPLOYEES OF AMERICA,

LocaL 1182, CHARTERED BY UNITED Foop

AND COMMERCIAL WORKERS INTERNATIONAL

Union, AFL-CIO, ET AL.

SEATTLE-FIRST NATIONAL BANK, PETITIONER

V.

FINANCIAL INSTITUTION EMPLOYEES OF AMERICA,

LocaL 1182, CHARTERED BY UNITED Foop

AND COMMERCIAL WORKERS INTERNATIONAL

Union, AFL-CIO, ET AL.

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ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

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REPLY BRIEF FOR THE NATIONAL LABOR

RELATIONS BOARD

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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BEST AVA

PoeemarRy M. COLLYER

General Counsel

National Labor Relations Board

Washington, D.C. 20570

TABLE OF AUTHORITIES

Page

Cases:

Amoco Production Co., 262 N.L.R.B.

i, 2, 3, 4, 5, 6, 7

Electrical Workers v. NLRB, 366 U.S.

F.W. Woolworth Co., 268 N.L.R.B. 805,

petition for review pending sub. nom.

United Food & Commercial Workers Local

568 v. NLRB, No. 84-1243 (D.C.

Local No. 4-14, Oil Workers Intl Union v.

NLRB, 721 F.2d 156

May Dep't Stores Co., 268 N.L.R.B. 979,

aff'd sub nom. United Retail Workers

Union Local 881 v. NLRB, No. 84-2000

(7th Cir. Oct. 1, 1985)

NLRB vy. A.J. Tower Co., 329 U.S. 324

NLRB v. Action Autcmotive, Inc.,

No. 83-1416 (Feb. 19, 1985)

NLRB vy. City Disposal Systems, Inc.,

No. 82-960 (Mar. 21, 1984)

NLRB vy. Iron Workers, 434 U.S. 335

NLRB vy. Truck Drivers Union,

353 U.S. 87

NLRB v. Weingarten, Inc., 420 U.S. 251

Pattern Makers’ League v. NLRB,

No. 83-1894 (June 27, 1985)

(1)

I]

Page

Cases—Continued:

Safway Steel Scaffolds Co., 173 N.L.R.B.

BEM ot5s6k6 bednbnsen+4bceeedeusshsusnee: 6,7

Scofield v. NLRB, 394 U.S. 423 ..........0045. 8

United Retail Workers Union Local 881 v. |

NLRB, No. 84-2000 (7th Cir. Oct. 1, |

SUED -medkeduedibedceceakeGnbaed conects 2, 4, 5

William B. Tanner Co., 212 N.L.R.B. 566,

enforcement denied, 517 F.2d 982 ........ -» O27

Statute:

Labor-Management Reporting and Disclosure

Act, 29 U.S.C. 401 ef seg. ...... natives adits a

PEE nctcndhendeisesecbeseeses 7

St es SE BOM ccccccebiseecusetdcocs 7

Inu the Supreme Court of the Hnited States

OcTOBER TERM, 1985

No. 84-1493

NATIONAL LABOR RELATIONS BOARD, PETITIONER

V.

FINANCIAL INSTITUTION EMPLOYEES OF AMERICA,

Loca. 1182, CHARTERED BY UNITED Foop

AND COMMERCIAL WORKERS INTERNATIONAL

Union, AFL-CIO, ET AL.

No. 84-1509

SEATTLE-FIRST NATIONAL BANK, PETITIONER

V.

FINANCIAL INSTITUTION EMPLOYEES OF AMERICA,

LocaL 1182, CHARTERED BY UNITED Foop

AND COMMERCIAL WORKERS INTERNATIONAL

Union, AFL-CIO, eT AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE NATIONAL LABOR

RELATIONS BOARD

1. The Union contends that the two parts of the Amoco

IV rule—unit-wide vote and continuity—rest on mutually

inconsistent premises (Resp. Br. 29).' Specifically, the

'Preliminarily, the Union contends (Resp. Br. 15-17) that, since the

Amoco IV rule represents an allegedly radical change in a policy that

was settled for many years and since its validity implicates the agency's

statutory authority, the Board's decision is not entitled to the deference

from the reviewing court which it would normally receive. There is no

(1)

2

Union argues that, while the Board justifies the need for a

unit-wide vote on the ground that union affiliation deci-

sions “involve ‘the selection of a bargaining representa-

tive,” ” the Board simultaneously recognizes in its conti-

nuity requirement that “an affiliation—like the other

evolutionary changes unions continuously effect—does not

ordinarily raise a question of representation” (ibid.; empha-

sis in original). This argument misconceives the purpose of

Amoco IV’s unit-wide vote requirement and its relation to

the continuity requirement.

As explained in our opening brief (at 14-16 & n.10), the

Board, in the interest of avoiding an unnecessary disruption

of stable bargaining relationships, has recognized that

merit to this contention. First, as shown in our opening brief (at 19-21),

the Board’s treatment of changes in union structure and organization

has been anything but settled. United Retail Workers Union Local 881

v. NLRB, No. 84-2000 (7th Cir. Oct. 1, 1985), slip op. 19. Rather, it has

been one where “ ‘the Board has more or less felt its way * * * and has

modified and reformed its standards on the basis of accumulating

experience.’ ” NLRB v. Weingarten, Inc., 420 U.S. 251, 265 (1975),

(quoting Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961)).

Second, “{a]n administrative agency is not disqualified from changing

its mind; and when it does, the courts still sit in review of the administra-

tive decision and should not approach the statutory construction issue

de novo and without regard to the administrative understanding of the

statutes.” NLRB v. Iron Workers, 434 U.S. 335, 351 (1978). Accord:

NLRB vy. Action Automotive, Inc., No. 83-1416 (Feb. 19, 1985), slip

op. 4 n.4. Nor does an exception to the normal standard of review of

Board interpretations of the National Labor Relations Act exist for

so-called jurisdictional or statutory authority questions. See NLRB v.

City Disposal Systems, Inc., No. 82-960 (Mar. 21, 1984), slip op. 6-7 n.7.

The function of the reviewing court in this case was merely to determine

whether the Board’s Amoco IV rule was a reasonable implementation

of the Act’s policies, and, if it was, the court was required to uphold the

rule even though a different rule would have been equally reasonable.

See NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946); NLRB v.

Truck Drivers Union, 353 U.S. 87, 96 (1957); Pattern Makers’ League

v. NLRB, No. 83-1894 (June 27, 1985), slip op. 2 (White, J.,

concurring).

3

many changes in union organization and structure, includ-

ing many affiliations, do not create an entirely new entity

and therefore do not raise a question concerning represen-

tation that must be resolved through the Board’s formal

election procedures.’ But, as also shown in our opening

brief (at 22-23), even where an affiliation does not create a

compietely new entity and thus raise a question concerning

representation, the resulting changes can still significantly

affect the union’s representation of the entire bargaining

unit. If the Board were to amend the designation of the

employees’ bargaining representative to reflect the affilia-

tion, it would thereby cloak the affiliated union with exclu-

sive authority to represent the entire bargaining unit and

with the full panoply of rights and protections that flow

from that status (see NLRB Br. 13-14 n. 6, 18-19 n. 12).3 The

Amoco IV requirement of a unit-wide vote on the affiliation

is a reasonable means of satisfying the Board—before it

substitutes the newly affiliated union for the old union as

the employees’ statutory representative—that all of the

employees whose representation could be affected by the

changes caused by the affiliation had an opportunity to vote

on it under procedures that at least minimally approximate

those used when employees make their initial choice of a

representative.‘

*Thus, to the extent that the Union argues (Resp. Br. 20-24 & n. 12)

that a union, during its tenure as bargaining representative, is likely to

go through a process of evolutionary change and not every change is

sufficient to put in doubt the union’s continued majority status, we

agree.

4Contrary to the Union’s view (Resp. Br. 33), the Board places its

imprimatur on the affiliation decision when it issues a bargaining order

in favor of the affiliated union no less than when it amends an outstand-

ing certification in its favor.

‘It is possible that, even after a majority of the unit employees have

approved the affiliation in a union-conducted vote, the Board would

nonetheless call a formal unit-wide representation election if it found

that the post-affiliation union was substantially different from the

4

A union organizational change such as an affiliation

differs from other decisions which also may affect the bar-

gaining unit in that the latter do not call for the Board to

change the designation of the statutory representative for

the unit. As the Seventh Circuit stated in United Retail

Workers Union Local 881 v. NLRB, No. 84-2000 (Oct. 1,

1985), slip. op. 20, in sustaining the Amoco IV rule as

applied to a union merger:°

[A] merger affects the relationship between a union

and its members in much the same way as contract

ratifications and elections of union officers. In one

crucial aspect, however, a merger election differs from

the other internal union affairs: Its effects are not

limited to the relationship between a union and its

members. Instead, it has external ramifications. For

example, after an affiliation or merger, a union inevit-

ably seeks an amendment to its certification, as in

Amoco, or files unfair labor practice charges with the

Board, as in the present case. Thus, because petitioner

pre-affiliation union. But, where there is a lack of continuity, a Board-

conducted election is not simply another method of determining

whether a majority of the unit employees want to be represented by the

new entity. Rather, the situation is comparable to an initial recognition

situation wherein the employer—even though it may have no reason for

doubting the union’s majority status—is entitled to have the representa-

tion question determined in a Board-conducted election, in which it will

have an opportunity to express its views to the employees. See NLRB

Br. 27-28.

Contrary to the Union's assumption (Resp. Br. 24), the Board, having

found that the unit-wide vote required by Amoco /V was not held,

dismissed the Union's petition to amend the certification without reach-

ing the further question whether there was sufficient similarity between

the old and newly affiliated union so that the latter could be deemed a

continuation of the former (Pet. App. 47a, 5la-52a).

‘The Seventh Circuit thus joins the Fifth Circuit, which had pre-

viously approved the Amoco IV rule. Local No. 4-14, Oil Workers

Intl Union v. NLRB, 721 F.2d 150 (Sth Cir. 1983).

5

invoked the external authority of the Board in an

attempt to establish that the employer had committed

an unfair labor practice, the Board could rationally

require an additional indicium of unit-wide majority

support for the merger, while avoiding the imposition

of the entire set of procedures required in a Board-

conducted election. The additional indicium that

Amoco requires is that all unit employees have the

opportunity to vote.

2. The Union is on no firmer ground in contending

(Resp. Br. 35-36) that the Amoco IV rule runs counter

to the Act’s policy of promoting stable bargaining relation-

ships. As pointed out in our opening brief (at 28-29), the

requirement that all unit employees have an opportunity to

participate in the vote on affiliation minimizes the potential

for disruption. Since employee views will be obtained

before the affiliation is irreversibly consummated, the

union can base its decision on these views: if the vote is

against affiliation, it can retain its independent status and

its certification, while if the vote is in favor of affiliation, it

can proceed with confidence that, even if the Board should

later decide that a lack of continuity requires a Board-

supervised election, it is likely to prevail in that election. In

contrast, under the procedure required by the court below

and favored by the Union, the union’s affiliation may result

in decertification, and the loss of the privileges of certified

status, if the Board determines—after the affiliation has

occurred—that lack of continuity has raised a question

concerning representation requiring a Board-run election,

and the union loses that election.

Moreover, as the Seventh Circuit noted in United Retail

Workers Union Local 881, slip op. 25, “the Amoco [IV]

rule should result in a decrease in the amount of litigation

on merger issues.” For, “[uJnder Amoco, a union is certain

to include all unit employees in a merger vote. If the vote

6

carries, employers faced with certain majority support for

the post-merger organization might be dissuaded from

further contesting the validity of the merger.” The same

result could be expected from application of the Amoco IV

rule to affiliations.

3. The Union errs in asserting that the Amoco IV rule

impermissibly interferes in internal union affairs and “com-

pel{s] unions to grant nonmembers the right to participate

in the union’s affiliation decision-making process” (Resp.

Br. 24, 36-38). The rule does not require a union to allow

nonmembers to participate in its internal decision to affil-

iate; it only requires the union to conduct a referendum

open to all bargaining unit employees, both union members

and nonmembers, if that internal decision is to serve as a

basis for Board certification that the newly affiliated union

is entitled to continued recognition as a statutory bargain-

ing representative for the unit. To be sure, some unions

‘In support of its contention that affiliation decisions are solely

internal union matters, unrelated to representation issues, the Union

asserts (Resp. Br. 29-30 n.16) that where, unlike the instant case, a

union represents more than one bargaining unit, it “is a logical impossi-

bility” for the union’s internal affiliation vote to indicate separately the

employees’ sentiments in each unit, and that “the Board has rejected the

proposition that [in such situations] affiliation votes must be conducted

unit-by-unit.” Neither contention is correct. First, as shown above, the

decision of a union and its members to affiliate is separate from the

question whether that decision may serve as a basis for Board amend-

ment of the designation of the representative for a particular bargaining

unit. If a union representing several bargaining units chooses to affil-

iate, the newly affiliated organization simply will not be entitled to

recognition as the certified bargaining representative in units that fail to

approve that step. Second, the union misapprehends Board policy,

relying solely on William B. Tanner Co., 212 N.L.R.B. 566 (1974). That

case, however, was denied enforcement precisely because there was no

substantial evidence to support a finding that the newly merged union

“is the authorized representative of the employees in the appropriate

unit” 517 F.2d 982, 983 (6th Cir. 1975)). Cases decided under Amoco

IV follow not Tanner, but Safway Steel Scaffolds Co., 173 N.L.R.B.

J

have allowed nonmembers to vote in their internal affilia-

tion or merger elections as a means of allowing the entire

bargaining unit an opportunity to pass on the change in its

statutory representative (see cases cited at NLRB Br. 25).

But this procedure is no‘ required by Amoco IV, and other

unions have followed a t\vo-step procedure of an internal,

members-only vote followed by a unit-wide vote open to

both members and nonmembers (see cases cited at NLRB

Br. 25). Thus, the Amoco IV rule is not focused on any

internal union matter but merely establishes the conditions

that a newly affiliated or merged organization must fulfill in

order to succeed to the status of statutory bargaining repre-

sentative enjoyed by its predecessor organization.’

311 (1968)—the leading pre-Tanner decision requiring unit-by-unit

determination of employee consent in merger and affiliation cases.

Safway Steel Sceffolds Co. formed the basis for the dissent from the

Board’s Tanner decision and the court’s refusal to enforce it. See F. W.

Woolworth Co., 268 N.L.R.B. 805, 806 n.5 (1984), petition for review

pending sub nom. United Food & Commercial Workers Local 568 v.

NLRB, No. 84-1243 (D.C.Cir.); cf. May Dep't Stores Co., 268 N.L.R.B.

979, 980 n.3 (1984), aff'd sub nom. United Retail Workers Union Local

881 v. NLRB, No. 84-2000 (7th Cir. Oct. 1, 1985) (noting, in upholding

the Board's refusal to require an employer to bargain with a newly

merged union, that there was no way to determine how the employees in

‘he separate bargaining units had voted in the election approving the

merger); Amoco Production Co. (Amoco IV), 262 N.L.R.B. 1240, 1241

(1982) (emphasizing that “all unit employees” must be afforded the

opportunity to vote on the affiliation).

’Nor is the union aided by the Labor-Management Reporting and

Disclosure Act (LMRDA), 29 U.S.C. 401 et seg. That statute expressly

provides tha: none of the provisions here relied upon by the Union

(Resp. Br. 40-48) “shall * * * be construed * * * to impair or other-

wise affect the rights of any person under the National Labor Relations

Act” (29 U.S.C. 523(b)), and further states that “[e]xcept as explicitly

provided to the contiary, nothing in this chapter shall reduce or limit

the responsibilities of any labor organization * * * under any other

Federal law * * * “(29 U.S.C. 523(a)). Because, as we have shown, the

Amoco IV requirement of a unit-wide vote on affiliations or other

8

For these reasons, as well as those set forth in our opening

brief, the judgment of the court of appeals should be

reversed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROSEMARY M. COLLYER

General Counsel

National Labor Relations Board

OCTOBER 1985

similar union organizational changes is a valid exercise of the Board’s

authority under the National Labor Relations Act, it does not violate

the policy against interference in internal union affairs embodied in the

LMRDA. See also Scofield v. NLRB, 394 U.S. 423, 430 (1969); Patt-

ern Makers’ League v. NLRB, slip op. 9-10.

DO}J-1985-10