# Amicus Curiae Brief — NLRB v. Town & Country Elec., Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 85

## Text

APR 19 19
No. 94-947 Z Nom “

—?

Pata a ee oe

In The

Supreme Court of the United States

October Term, 1994
“

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

TOWN & COUNTRY ELECTRIC, INC., AND
AMERISTAFF PERSONNEL CONTRACTORS, LTD.,

Respondents.
+

On Writ Of Certiorari To the
United States Court Of Appeals
For The Eighth Circuit
+

BRIEF AMICUS CURIAE OF THE
CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA IN SUPPORT OF THE RESPONDENTS

Sd

Of Counsel:
STEPHEN A. BOKAT MARSHALL B. BasBson*
Rosin S. CONRAD STANLEY R. STRAUSS
Mona C. ZEIBERG ELIZABETH TORPHY-DONZELLA
NATIONAL CHAMBER OGLETREE, DEAKINS, NASH,

LITIGATION CENTER, INC. SMOAK & STEWART
1615 H Street, N.W. 2400 N. Street, N.W.,
Washington, D.C. 20062 5th Floor
(202) 463-5337 Washington, D.C. 20037

(202) 887-0855

Counsel for the Chamber of
Commerce of the United
States of America

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

~

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page
INTEREST OF AMICUS CURIAE................... 1
EE ME veces rb cwecccceccccccees 3
SUMMARY OF THE ARGUMENT ................. 6

I.

Il.

THE BOARD’S CONCLUSION THAT AN
EMPLOYER IS REQUIRED BY LAW TO HIRE
THE PAID ORGANIZERS OF A UNION THAT
HAS TARGETED THAT EMPLOYER FOR
ORGANIZATION IS AN UNREASONABLE
INTERPRETATION OF THE ACT..............

A. The Principle of Balance Struck by Congress in
the NLRA Between Labor and Management
Demonstrates that an Employer is not
Required to Hire the Paid Agents of the Union
that Has Targeted It for Organization .......

B. Other Settled Principles of the NLRA are
Violated by the Board’s Conclusion that the
Pay and Control Exercised by a Union Over
its Organizers do not Present Disabling Con-
iC ciC eee scab bbe accesses cnc

PAID UNION ORGANIZERS ARE NOT
“EMPLOYEES” UNDER THE LANGUAGE OF
om ee ly eee

ee ee ee

14

ii
TABLE OF AUTHORITIES

Cases
ABF Freight Sys., Inc. v. NLRB, __ U.S. __, 114

S.Ct. G35 (1994). ....-+<0+eeecennenueeeennene

Allied Chemical Workers v. Pittsburgh Plate Glass

Co., 404 US. 157 (2671)... «.. iceucenueeeee
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)...
Anthony Forest Products Co., 231 NLRB 976 (1977)....

Betra Mfg. Co., 233 NLRB 1126 (1977), enf'd, 624
F.2d 192 (9th Cir. 1980), cert. denied, sub nom.,

Thomas v. NLRB, 450 U.S. 996 (1981)...........
Cedars-Sinai Medical Center, 223 NLRB 251 (1976) ....

Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 US..GGF (ities os ccan ene

Dee Knitting Mills, Inc., 214 NLRB 1041 (1974),
enf'd, 538 F.2d 312 (2d Cir. 1975)...............

Dubuque Packing Co., Inc., 303 NLRB 386 (1991),

enf'd in relevant part, 1 F.3d 24 (D.C. Cir. 1993) ....

Elias Bros. Big Boy, Inc., 139 NLRB 1158 (1962) enf’d
denied in relevant part, 327 F.2d 421 (6th Cir.
i. |)

Emanuel Hospital, 268 NLRB 1344 (1984)..........

Escada (USA), Inc., 304 NLRB 845 (1991), enf’d
without opinion, 970 F.2d 898 (3d Cir. 1992).....

Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27 (1987) .... 0000606800005 en eee

First Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666
(19G2) . . . . 60000s.000008 00) mini ieee

Fort Smith Chair Co., 143 NLRB 514 (1963), enf’d on
other grounds sub nom., United Furniture Workers
v. NLRB, 336 F.2d 738 (D.C. Cir. 1964).........

iii

TABLE OF AUTHORITIES - Continued

Page
General Electric Co. v. NLRB, 412 F.2d 512 (2d Cir.
PETG UL GCS cuca scsdeveseccesecccccccccs 9
Golden State Transit Corp. v. Los Angeles, 475 U.S.
UTC CURES USS ance vines'e st veccviccccccss 2
H.B. Zachry Co., 289 NLRB 838 (1988), enf‘d denied,
886 F.2d 70 (4th Cir. 1989).................. 6, 13, 23
H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941) ......... 10

Henlopen Mfg. Co., 235 NLRB 183 (1978), enf‘d
denied on other grounds, 599 F.2d 26 (2d Cir. 1979) .... 23

Int'l Assoc. .of Machinists v. NLRB, 311 U.S. 72
EN on on 500 6666¥se pecccccccccces 10

Joseph Schlitz Brewing Co., 211 NLRB 799 (1974) ..... 19

Laidlaw Corp., 171 NLRB 1366 (1968), enf’d, 414
F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920
eke tie ase be56 svnccecccccccccccs 16

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992)....9, 12, 25
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

I EGU hak bus cease scdecnecsscccess 2
Livadas v. Bradshaw, __ U.S. __, 114 S.Ct. 2068

Leck ede neesetvccceccccscccces 2
Lucky Stores, Inc., 269 NLRB 942 (1984).............. 18
Marbury v. Madison, 5 U.S. 137 (1803) ............... 22
Margaret Anzalone, Inc., 242 NLRB 879 (1979)........ 23
NLRB v. Amax Coal Co., 453 U.S. 322 (1981)......... 10

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ...14, 18

NLRB v. Corsicana Cotton Mills, 178 F.2d 344 (5th
ee dws a ag bascccccocccceccces 10

iv
TABLE OF AUTHORITIES —- Continued

NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421

Sees Gk Weeks ce oss avesasdausceeasemracens
NLRB v. Hearst Pub., Inc., 322 U.S. 111 (1944)...

NLRB v. Lorimar Productions, Inc., 771 F.2d 1294

GU Cie. Bs his kdedccccnaavescuescnvesines

NLRB v. News Syndicate Co., 365 U.S. 695 (1961).

NLRB v. Parsons School of Design, 793 F.2d 503 (2d
COR SEED cece her cusnexds can es tetkadnsabnes tae

NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973) ....

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318,
ec Boe Be 8 Ry Pere a re

Oak Apparel, Inc., 218 NLRB 701 (1975)..........

Office Employees Int'l Union v. NLRB, 353 U.S. 313

COUP i ou 64 bc 500d cautevenbedeckeokeseeuseneens

Overhead Door Corp., 220 NLRB 431 (1975), enf'd
denied in relevant part, 540 F.2d 878 (7th Cir.

SOPs ots os cnoteacscsaneetanacnesemeehnieike
Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947) ....
Palby Lingerie, Inc., 252 NLRB 176 (1980)........

Parker-Robb Chevrolet, Inc., 262 NLRB 402 (1982),
review denied sub nom., Auto Salesmen’s Union Local

1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983).....
Peck, Inc., 226 NLRB 1174 (1976).............0.-

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).
Pilliod of Mississippi, Inc., 275 NLRB 799 (1985) ..

Reich v. Int'l Alliance of Theatrical Stage Employees,
32 F.3d SIZ (TUM Cae, PIE occ s scenes sauedss

Yee i

. oe re

F
oe »

Vv

TABLE OF AUTHORITIES - Continued

Page
Sakrete of N. Cal., Inc. v. NLRB, 332 F.2d 902 (9th
Cir. 1964), cert. denied, 379 U.S. 961 (1965) ........ 11
Scofield v. NLRB, 394 U.S. 423 (1969) ................ 10
Sears, Roebuck and Co., 170 NLRB 533 (1968)......... 23
Star Tribune, 295 NLRB 543 (1989)................... 10
Sunland Constr. Co., 309 NLRB 1224 (1992).......... passim
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)........... 8
Town & Country Elec., 309 NLRB 1250 (1992), enf‘d
denied, 34 F.3d 625 (8th Cir. 1994)............. passim
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111
ee ee Ree ch eee enn ene eee 60s 2
United Technologies Corp., 274 NLRB 1069 (1985),
enf'd, 789 F.2d 121 (2d Cir. 1986).................. 10
Wild v. United States Dep't. of Housing and Urban
Dev., 692 F.2d 1129 (7th Cir. 1982) ................ 20
Willmar Elec. Serv., Inc., 303 NLRB 245 (1991),
enf'd, 968 F.2d 1327 (D.C. Cir. 1992), cert. denied,
se cL Be Ci Me GEE cece ccvecceccens 23
Zayre Dep't Stores, 289 NLRB 1183 (1988)............ 10
STATUTES
Labor Management Relations Act, 29 U.S.C. § 141 et seq.:
I I I, OD occ cece scccevcncccese 28
Section 302(c)(1), 29 U.S.C. § 186(c)(1)............. 28
Section 302(c)(5), 29 U.S.C. § 186(c)(5)............. 28

vi

TABLE OF AUTHORITIES —- Continued

Page
National Labor Relations Act, 29 U.S.C. § 151 et seq.:
Section 2(2), 29 U.S.C. § 152(2)............. 14, 24, 25
Section 265), 2D UBA.. © TM o- cs cewccecctae passim
Section 2p, ZO USA. & Bee s ccecivesvccesss 24, 25
we Bt lt | Rr ere vores Tuan 16
Section 8(a)(1), 29 U.S.C. § 158(a)(1) ............ 6, 17
Section 8(a)(2), 29 U.S.C. § 158(a) 2) ............ 9, 13
Section 8(a)(3), 29 U.S.C. § 158(a)(3) ............ 6, 17
Section 8(a)(5), 29 U.S.C. § 158(a)(5) .............. 28
Section 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A) ..... 10, 17
Section 8(b)(1)(B), 29 U.S.C. § 158(b)(1)(B)......... 10
Section 8(b)(7), 29 U.S.C. § 158(b)(7) .............. 17
Dastion. 12, ar UGS. S BG ks eri ctcvcvtvvevseresve 17
MISCELLANEOUS
1 Legislative History of the National Labor Rela-
CGS FOG, BOD < 6b han ek Ride on Bue Uehs visas adds 25, 26
Restatement (Second) Agency, § 226..............+:- 19

Se = ee

No. 94-947
t

In The

Supreme Court of the United States
October Term, 1994

+
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.

TOWN & COUNTRY ELECTRIC, INC., AND
AMERISTAFF PERSONNEL CONTRACTORS, LTD.,
Respondents.
+
On Writ Of Certiorari To the

United States Court Of Appeals
For The Eighth Circuit

¢
BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES
OF AMERICA IN SUPPORT OF THE RESPONDENTS

+
INTEREST OF THE AMICUS CURIAE!

The Chamber of Commerce of the United States of
America (“the Chamber”) is a federation consisting of
approximately 215,000 companies and several thousand
other organizations such as state and local chambers of
commerce and trade and professional associations. It is

1 This brief is fiied with the written consent of the parties
pursuant to Supreme Cuurt Rule 37.3. Letters of consent are
being filed simultaneously with the Clerk of Court.

1

the largest association of business and professional orga-
nizations in the United States.

A significant aspect of the Chamber’s activities
involves regular representation of the interests of its
member-employers before the courts, the United States
Congress, the Executive Branch and independent regula-
tory agencies of the federal government. Accordingly, the
Chamber has sought to advance those interests by filing
briefs amicus curiae in a wide spectrum of labor relations
litigation.?

This case presents the fundamental question of
whether the National Labor Relations Act (“NLRA” or
“the Act”) requires an employer to consider for hire paid
union agents who have been sent by the union to seek
employment with the employer for organizational pur-
poses and who, if hired, will remain with the employer
only so long as the union permits them to do so. The
resolution of this issue presents, inter alia, the question of
whether these paid union agents are “employees” as
defined by Section 2(3) of the NLRA, 29 U.S.C. § 152(3).
The Board held that Respondents, as employers, must
hire such individuals, despite the fact that their employ-
ment was, by agreement with the union, only for organi-
zational purposes, their salary would be subsidized by

2 See, e.g., Livadas v. Bradshaw, __ U.S. __, 114 S.Ct. 2068
(1994); ABF Freight Sys., Inc. v. NLRB, __ U.S. __, 114 S.Ct. 835
(1994); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988);
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987);
Golden State Transit Corp. v. Los Angeles, 475 U.S. 608 (1986);
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985); Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).

ot: i hb te ng

———

the union, and the duration of their employment would
be determined by the union. The Eighth Circuit Court of
Appeals rejected the Board’s position as an unreasonable
interpretation of the Act and held such paid union orga-
nizvers to be outside of the NLRA’s definition of
“employee.”

The Court’s resolution of this matter is of vital con-
cern to the Chamber and its members, many of whom are
non-unionized companies that are receiving employment
applications from paid union organizers whose primary
interest in gaining employment is not to work for the
companies, but to organize their workforces for the bene-
fit of the union. These employers need to know whether
they must consider such paid union organizers as legiti-
mate job applicants whom they must hire and retain in
their workforce as the Board held, or whether they need
not be treated as bona fide employees or applicants
because of their union-employer’s control over them.

+

SUMMARY OF THE CASE

Respondent, Town & Country Electric, Inc. (“Town &
Country”), is a Wisconsin-based electrical contracting
company. Malcolm Hansen, a Minnesota State licensed
journeyman electrician, is a member of Local 292 of the
International Brotherhood of Electrical Workers (“Local
292” or “the union”). In September of 1989, Local 292,
acting pursuant to its “job salting organizing resolution,”
encouraged Hansen and some nine other Local 292 mem-
bers to seek jobs on a non-union Town & Country project

4

in International Falls, Minnesota. According to the resolu-
tion, members of the Local who received approval from
the union could seek jobs on non-union projects, like
Town & Country’s, for the purpose of “organizing the
unorganized.” Members who were successful in obtain-
ing such employment were required to “promptly and
diligently carry out their organizing assignments, and
leave the employer or job immediately upon notification
[by the union].” In return for the organizers’ efforts, the
union had to pay them the difference between union scale
and the non-union contractor’s wage rate, and also had to
pay for the organizers’ travel expenses.

On September 7, 1989, Hansen, accompanied by
approximately nine other Local 292 members and two
full-time paid union officials, went to a hotel in Min-
neapolis, Minnesota, where Town & Country officials
were scheduled to interview applicants who had been
pre-screened by Ameristaff, an employment agency.°
None of the individuals from Local 292 had been pre-
screened for interviews, although Hansen had called
Ameristaff on the morning of September 7 and had been
instructed to go to the hotel.

3 Shortly after being awarded the contract in early Septem-
ber, 1989, Town & Country learned that Minnesota law requires
electrical contractors to employ one State-licensed electrician
for every two on the job site who lack such licenses. Because
Town & Country had no employees who met this requirement, it
retained Ameristaff to recruit personnel for the job. Those
recruited would be employees of Ameristaff, not Town & Coun-
try. Local 292 officials learned of the job through an advertise-
ment placed by Ameristaff.

7 |

es

Town & Country’s representatives for these inter-
views, human resources manager Ron Sager and project
manager Dennis Defferding, were delayed in Wisconsin
by inclement weather, and arrived at the hotel in Min-
neapolis one and one-half hours late. By the time they
arrived, of the seven pre-screened interviewees, only one
remained, along with the dozen applicants sent by the
union. Sager and Defferding interviewed one union
applicant, who stated that he had to leave early, and the
one scheduled applicant who had remained. They then
informed the others, whom their applications showed to
be union members, that Sager had to return to Wisconsin
for an important meeting and that only scheduled appli-
cants would be interviewed. Hansen, however,
demanded to be interviewed because he had been told
that morning by Ameristaff to come to the hotel. Sager
then interviewed Hansen and, although knowiz>¢ that he
was a union member, hired him. Hansen thus became an
Ameristaff “employee.”

On September 12, Town & Country’s crew, including
Hansen, began work at the site. The same day, Hansen
announced to the crew that he was there to organize them
for the union. Thereafter, Hansen’s crewmates com-
plained to their foreman about Hansen’s workplace
behavior, including his organizing efforts and his poor
productivity.

On September 14, Town & Country learned that Min-
nesota law prohibits electrical contractors from using
employment agency employees on the job. Hansen was
therefore informed by his foreman that he was termi-
nated, and his request that he be hired by Town & Coun-
try was refused. The union thereupon filed unfair labor

practice charges against Town & Country, alleging that
the Company violated Sections 8(a)(1) and 8(a)(3) of the
NLRA, 29 U.S.C. §§ 158(a)(1) and 158(a)(3), by refusing,
on September 7, to interview the two union officials and
the other union members sent by Local 292, and by
refusing to retain Malcolm Hansen on the job after Sep-
tember 14.

The Board found in favor of the union in all respects.
In so doing, the Board adhered to its view that under the
NLRA paid union organizers, although dispatched to a
targeted employer for the express purpose of fulfilling
organizational responsibilities to the union while in the
guise of bona fide employees, are indistinguishable from
any other job applicant or employee. The Board accord-
ingly concluded that a targeted employer, like Town &
Country, may not refuse to hire such union agents or
dismiss them for engaging in paid organizing activity at
the employer’s worksite. The Eighth Circuit, citing with
approval the Fourth Circuit’s decision in H.B. Zachry v.
NLRB, 886 F.2d 70 (1984), and the Sixth Circuit’s decision
in NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (6th
Cir. 1964), refused to enforce the Board’s order, conclud-
ing that individuals who are paid and controlled by a
union that has targeted an employer for organization are
not “employees” under the NLRA.

¢

SUMMARY OF THE ARGUMENT

The NLRB’s conclusion that an employer is required
to hire paid union organizers of a union that has targeted
that employer for organization is an unreasonable and

ea

————

me,

arbitrary interpretation of the Act. A requirement that
employers must hire the paid agents of their adversary in
organizing activities is at odds with the fundamental
balance in the statute between the roles of employers,
employees and labor organizations. In addition, the
Board’s requirement that employers must allow paid
union operatives to work side by side with the rank and
file members of a potential bargaining unit is inconsistent
with numerous principles articulated under the NLRA
that are designed to protect fundamental fairness and
freedom of choice. The unreasonableness of the Board’s
rule requiring a targeted employer to hire paid organizers
of the union. targeting him is underscored by the Board’s
arbitrary distinction not applying the same rule in a
strike situation, an exception unsupported by the statute
and by the Board’s experience in administering the stat-
ute.

Moreover, the language of the statute itself supports
the conclusion that paid union organizers are not
“employees” when they are acting as the paid agents of a
labor organization and have presented themselves for
employment to a targeted employer in furtherance of
their paid organizational duties.

I. THE BOARD’S CONCLUSION THAT AN
EMPLOYER IS REQUIRED BY LAW TO HIRE THE
PAID ORGANIZERS OF A UNION THAT HAS
TARGETED THAT EMPLOYER FOR ORGANIZA-
TION IS AN UNREASONABLE INTERPRETATION
OF THE ACT.

As the court of appeals recognized, it is settled that
the Board, as the agency charged with interpreting the

NLRA, is entitled to deference in its interpretation of the
statute only if that interpretation is reasonable in light of
the terms, structure and policies of the Act. See Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 891 (1984). See also Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843 (1984) (where the statute is silent or ambig-
uous, agency’s interpretation is upheld if it is a permis-
sible construction of the statute). The NLRB is not
entitled to deference, however, in a case such as the one
here, where the Board unabashedly has ignored the dis-
tinct roles of employers, employees and unions carefully
cast by Congress, and has articulated a rule that conflicts
with numerous other provisions and principles of the
statute. As we show in Section II, infra, there is even
support in the text of the Act for the court of appeals’
conclusion that paid union organizers who seek a job
with a targeted employer on behalf of the targeting union
are excluded from the definition of “employee.” In such
circumstances, it is clear that the Board’s conclusion that
paid union organizers must be hired by a targeted
employer during an organizing drive is at odds with the
terms, structure and fundamental policies of the statute.

A. The Principle of Balance Struck by Congress in
the NLRA Between Labor and Management
Demonstrates that an Employer is not Required
to Hire the Paid Agents of the Union that has
Targeted It for Organization.

Even a cursory analysis of the structure of the NLRA
shows why the Board was wrong to conclude that paid
union organizers who have targeted an employer for
organization must be hired by that employer. By design,

employers, unions, and employees constitute three dis-
tinct groups under the NLRA. The major emphasis of the
Act is to protect the rights of employees by keeping
employee interests distinct from those of employers and
of unions. Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992).
The paramount employee right under the NLRA is the
Section 7 right to form, join, or assist labor organizations
or to refrain from doing so. 29 U.S.C. § 157. Unions and
employers have the right to convince employees legit-
imately that they either should or should not support a
union, but neither has the right to make that decision for
employees. Lechmere, 502 U.S. at 532.

Recognizing that employee interests are best served
by independent persuasion from labor and management,
Congress carefully separated the roles of unions and
employers under the statute and designed the NLRA to
keep either from interfering with the independence of the
other. There are numerous examples of the independent,
and at times adversarial, roles that are delineated for
employers and unions under the NLRA.

A first principle of the NLRA is that labor and man-
agement may not dictate who shall be the collective bar-
gaining agents of the other. See generally General Electric
Co. v. NLRB, 412 F.2d 512, 516-17 (2d Cir. 1969) (discuss-
ing fundamental right of both employers and employees
to choose their own bargaining representatives). Consis-
tent with this principle, the NLRA prohibits an employer
from interfering “with the formation or administration of
any labor organization.” 29 U.S.C. § 158(a)(2). An
employer violates that section of the Act if its managers
and supervisors play a meaningful role in the selection of
a union as the employees’ bargaining representative. Int'l

10

Assoc. of Machinists v. NLRB, 311 U.S. 72, 79-80 (1940); H.J.
Heinz Co. v. NLRB, 311 U.S. 514, 519-20 (1941). Similarly,
the Act prohibits a labor organization from restraining
management in the selection of its representatives. 29
U.S.C. § 158(b)(1)(B); NLRB v. Amax Coal Co., 453 U.S. 322,
334-335 (1981).

Further evidence of the independent and distinct
roles occupied by employers and unions under the Act is
that no union is required to bargain with an employer
about the union’s rules of membership, 29 U.S.C.
§ 158(b)(1)(A) (proviso); Betra Mfg. Co., 233 NLRB 1126,
1135 (1977), enf’d, 624 F.2d 192 (9th Cir. 1980), cert. denied
sub nom, Thomas v. NLRB, 450 U.S. 996 (1981); NLRB v.
Corsicana Cotton Mills, 178 F.2d 344 (5th Cir. 1949); Zayre
Dep't Stores, 289 NLRB 1183, 1186 (1988). By the same
token, management is not required to bargain with a
union about the individuals the employer hires, Star Tri-
bune, 295 NLRB 543, 547-48 (1989); United Technologies
Corp., 274 NLRB 1069, 1070 (1985), enf’d, 789 F.2d 121 (2d
Cir. 1986), or about the employer’s basic decisions on
how it will run its business. First Nat'l Maintenance Corp.
v. NLRB, 452 U.S. 666 (1981). See also Dubuque Packing Co.,
Inc., 303 NLRB 386 (1991), enf’d in relevant part, 1 F.3d 24
(D.C. Cir. 1993).

The NLRA has been construed to allow an employer
to discharge its managers and supervisors who support
union representation. E.g., Parker-Robb Chevrolet, Inc., 262
NLRB 402 (1982), review denied sub nom, Auto Salesmen’s
Union Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983).
Similarly, a union may expel its members who aid man-
agement by working during a strike. Scofield v. NLRB, 394
U.S. 423, 430 (1969).

11

Furthermore, an employer may permit its managers
and supervisors to join a union, but it is not required by
the Act to do so. NLRB v. News Syndicate Co., 365 U.S. 695,
699 n.2 (1961). At the same time, a union is not required
to accept a management representative into its ranks,
although it may do so voluntarily. Id. See also Sakrete of N.
Cal., Inc. v. NLRB, 332 F.2d 902, 908 (9th Cir. 1964), cert.
denied, 379 U.S. 961 (1965). Cf. Reich v. Int'l Alliance of
Theatrical Stage Employees, 32 F.3d 512, 515 (11th Cir. 1994)
(observing that union’s prohibition on a managerial
employee-member having a voice or vote in union busi-
ness appropriately avoids “a conflict of interest in [the
individual] carrying out his duties for the union, on the
one hand, and his employer, on the other.”).

Given the foregoing principles, it is inconceivable
that Congress nevertheless could have intended that an
employer would be required to hire full-time union orga-
nizers paid and controlled by the union even though the
employer knows that the organizers’ express purpose in
applying for jobs is to drum up support for the union.
Indeed, it is apparent that the conclusion of the Board in
this case is in direct conflict with core tenets of the NLRA.
It is only by unreasonably equating paid union activity
with the Section 7 right of employees to form, join, or
assist a labor organization, and by giving no meaningful
consideration to the balancing principles upon which the
Act is based, that the Board could come to the remarkable
conclusion that a targeted employer must hire a paid
union adversary.*

* Thus, the Board miscasts the challenge to the “employee”
status of paid union organizers as an attack on the premise that

12

This Court, in Lechmere, supra, reiterated that union
organizers could not use the Section 7 rights of the
employees they sought to organize to excuse their tres-
pass onto an employer’s property. Lechmere, 502 U.S. at
537. Nonetheless, the Board concluded here that the
union can assume the rights of employees by the simple
expedient of directing its paid agents to apply for
employment with a non-unionized company. But this dis-
patch of its agents to the employer’s work site, employ-
ment applications in hand, no more changes the character
of the union’s right than if an employer sent its super-
visors to apply for a job with a union and thereby
attempted to vest them with “employee” status for the
purpose of advancing the employer’s opposition to
unionization from within the union. Neither the union
nor the employer should be permitted to gain

employees can be both loyal to their union and to their
employer. Town & Country Elec., 309 NLRB 1250, 1257 (1992),
enf'd denied, 34 F.3d 625 (8th Cir. 1994). In the same vein, it
mischaracterizes the arguments in support of this challenge as
“arguments that employers be permitted to discriminate based
on an individual’s presumed or avowed intention to join or
assist a labor organization.” Id. 1256. The briefs of the Board and
its amici in this Court continue this {.eme.

Neither of these characterizations is accurate or useful.
There is no question that employees may be both loyal union
adherents and loyal employees and that the right to join unions
and to assist labor organizations is fundamental. Those princi-
ples are not at issue. Rather, what is at issue is whether a paid
operative of a union that has targeted an employer for organiza-
tion, who seeks to work for the employer to further the union’s
objectives, and whose duration of employment is controlled by
the union’s agenda, and not by the individual’s or the
employer’s requirements, is a bona fide “employee” who must be
hired and retained.

if

13

“employee” status for its paid agents through such strata-
gems.

Moreover, as the Fourth Circuit recognized in H.B.
Zachry Co. v. NLRB, supra, the requirement that an
employer accept into its ranks paid union organizers,
particularly during a representation campaign, effectively
requires the employer to subsidize the organizational
activities of the union that, by statute, it is privileged to
oppose. Zachry, 886 F.2d at 75. In like manner, Congress,
in Section 8(a)(2) of the Act, 29 U.S.C. § 158(a)(2), sought
to maintain the independence of unions for the benefit of
employees by prohibiting employers from funding their
efforts.

The Board cursorily dismisses the latter prohibition,
stating that Section 8(a)(2) would not be violated by such
employer “support” for the union because organizers
would be paid for work performed for the employer, not
for their organizing activities. See Town & Country, supra,
309 NLRB at 1257-58 n.36. Such analysis begs the ques-
tion, however, because it ignores the statutory policy
embodied in Section 8(a)(2) that in the realm of organiz-
ing, most employers and unions are adversaries — com-
petitors for the sympathies of the employees. No
competitor should effectively be required to subsidize the
competition. Yet, the decision of the Board ignores logic
and the very fabric of the NLRA by requiring such an
untoward result.

In sum, the basic structure of the Act clearly supports
the conclusion that the paid organizers of a union that
has targeted an employer for organization need not be

14

hired by that employer, whatever their technical status
under the Act.°

B. Other Settled Principles of the NLRA are Vio-
lated by the Board’s Conclusion that the Pay
and Control Exercised by a Union Over Its
Organizers do not Present Disabling Conflicts
of Interest.

The erroneous nature of the Board’s decision in this
case is highlighted by its decision in Sunland Construction
Co., 309 NLRB 1224, 1230-31 (1992), a companion case to

5 The Board and its amici argue that NLRA Section 2(3)’s
broad definition of “employee,” when considered in light of the
list of exclusions set forth therein, mandate that “paid union
organizers” be classified as statutory employees, given that they
allegedly are not among the groups expressly excluded. Peti-
tioner and its amici base this contention on the “expressio unius
est exclusio alterius” principle of statutory construction, that is,
the inclusion of one thing negatively implies the exclusion of
others. As we show in Section II, the text of the Act supports the
proposition that paid union organizers are excluded from the
Act by operation of Sections 2(2) and 2(3). Yet, even were this
not the case, other categories of workers have been determined
to be outside the protection of the Act despite their absence
from Section 2(3)’s list of exclusions. See NLRB v. Bell Aerospace
Co., 416 U.S. 267, 289 (1974) (holding, contrary to the Board’s
conclusion, that all managerial employees are excluded from
Section 2(3)’s definition of employee); Cedars-Sinai Medical Cen-
ter, 223 NLRB 251 (1976) (holding that medical residents and
medical interns are excluded from the NLRA definition of
employee). Thus, even if Congress failed to expressly exclude
“paid union organizers” from Section 2(3), this is not dispositive
of Congress’ intent on the issue, particularly where, as here, a
contrary result is inconsistent with the fundamental policies of
the statute.

15

Town & Country before the Board. In Sunland, the Board
held that an employer may refuse to hire a paid union
organizer during a strike without violating the NLRA.
The Board reasoned that the conflict of interest between
the employer and the union justified the employer’s
refusal to hire the organizer based upon his paid union
status, saying: “[the union agent’s] interest and objec-
tives . . . were [presumptively] aligned with the Union -
on whose behest he acted.” Id. at 1231. Emphasizing the
point, the Board also noted that an employer could not
presume that unpaid union adherents who applied to
work behind a picket line operated under such a dis-
abling conflict “because they are not obligated to the
union as paid agents.” Id. n.41.°

The paradox is that in Sunland, the Board acknowl-
edged that a fundamental divergence of interests exists
between unions and employers. According to the Board,
an employer is privileged to presume that the union’s
motive is illicit and at odds with the employer’s desire to
operate when the union sends its agents into the
employer’s workforce during a strike. In such an
instance, the employer need not hire an applicant who is
a paid union organizer. Inexplicably, however, the Board
would forestall an employer targeted by a union for
organization from drawing a negative inference about the
union’s motives in sending its paid operatives to work for
the employer in the absence of a strike.

6 In Sunland, the Board, as in this case, found paid union
organizers to be Section 2(3) “employees.” In this respect, the
Board’s conclusions in the cases cannot be reconciled.

16

The Chamber submits that the Board’s demarcation
between a strike situation and a non-strike (organizing)
situation is utterly untenable. For example, if paid union
organizers must be hired by a targeted employer before a
picket line is erected as the Board holds, then all a union
need do is send its agents to apply for work before a
strike is called, and if qualified for the job, they must be
hired by the employer. Presumably, the union could then
call a strike, instruct its operatives to continue to work
behind the picket line, and the Board, predicated on
Sunland, would then permit the targeted employer to
terminate the same paid organizers who, under the
Board’s doctrine in this case, the employer was compelled
to hire originally. A similar absurd result follows that
paid union organizers may be discharged if they, at the
union’s direction or urging, engage in lesser forms of
economic activity against the employer, such as a pro-
tected “sit-down” strike. See Overhead Door Corp., 220
NLRB 431 (1975) (finding employees’ refusal to leave
plant at the end of shift to protest change in working
hours to be protected conduct), enf’d denied in relevant
part, 540 F.2d 878 (7th Cir. 1976). See also Peck, Inc., 226
NLRB 1174 (1976) (affirming continued adherence to rule
in Overhead Door). It does violence to the Act to permit
the irreconcilable conflict between paid union organizers
and targeted employers to be acted upon only in the
strike situation.”

7 Thus, the Board’s distinction requires it to disregard that
striking is protected activity under Section 7 of the Act, 29
U.S.C. § 157; that under Section 2(3) of the Act, “employees” do
not lose their status by exercising their right to strike, 29 U.S.C.
§ 152(3); see also Laidlaw Corp., 171 NLRB 1366 (1968), enf’d, 414

| a

eee — -—

17

In contrast with the Board, the administrative law
judge in the Sunland case® realistically recognized that
conflicting agendas are equally possible in both the strike
and the organizing context:

It is not farfetched to regard the [union’s]
“strike back” strategy as built upon a form of
entrapment reminiscent of other “blackmail”
devices which in 1958 led to enactment of the
Section 8(b)(7) strictures on recognition picket-
ing. . . . [In this case], the employee protections
of Section 8(a)(3) were central ingredients of a
scheme whereby an unorganized employer
would be pressured to capitulate, go out of busi-
ness, or face recurring union sponsorship of
mass applications in the midst of future projects.
From my perspective, a serious question arises
as to whether, through the complaint in this
proceeding, the Board has been conscripted as

F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920 (1970); and that
nothing in the NLRA “shall be construed so as either to interfere
with or impede or diminish in any way the right to strike,” 29
U.S.C. § 163. Similarly, both employers and unions are prohib-
ited under the Act from discriminating against employees who
exercise their right to strike. 29 U.S.C. §§ 158(a)(1), 158(b)(1)(A).
It is precisely because fundamental employee rights under the
Act must be disregarded in order for the Board’s distinction to
work that the Board was wrong to conclude that a paid union
organizer is a bona fide arplicant or employee of a targeted
employer at any time.

8 In Sunland, the Board disavowed reliance on the adminis-
trative law judge’s discussion of the motives of the union in
inundating the employer with applications of union organizers.
Yet, the ALJ’s candid assessment is entitled to much weight,
because it demonstrates the falsity of the distinction that the
Board would draw between the strike situation and “business as
usual.”

18

an unwitting conspirator in the effort to achieve
union goals — be they organizational or eco-
nomic — through pressures, rather than through
the statutory procedures designed to assure that
compulsory bargaining begins with procedures
preserving freedom of choice.

Sunland Constr. Co., 309 NLRB at 1245 (decision of ALJ
Harmatz).?

By acknowledging that the control exercised by the
union over its organizers makes them different in kind
from other laborers in the strike context, but then failing
to account for those differences in the organizing context,
the Board clearly reaches an unreasonable interpretation
of the Act. For in each case, unions and employers should
properly be viewed as “separate factions in warring
camps.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 278
(1974), quoting Packard Motor Car Co. v. NLRB, 330 U.S.
485, 494 (1947). Just as an employer need not hire a paid
union organizer to work behind a picket line, so too an
employer should have a right to refuse to hire - and,
therefore, not to pay — individuals who are concurrently
employed by a union adversary to enter the employer’s
workplace for the express purpose of furthering the
union’s interests at the location. Cf., e.g., Lucky Stores, Inc.,
269 NLRB 942 (1984) (permissible to terminate a confi-
dential employee based on the presumption that close
marital or social relationship to a union adherent might

®° ALJ Harmatz recognized the particular vulnerability of a
construction employer to this tactic if he is targeted by a union
when nearing his contract deadline to complete a job, because
normally such contractors are subject to stiff monetary penalties
for delay. 309 NLRB at 1245.

19

improperly disclose confidential labor relations informa-
tion to union); Joseph Schlitz Brewing Co., 211 NLRB 799
(1974) (same).

A conclusion that an employer need not hire a paid
union organizer who only will remain with the employer
so long as the union permits him to do so is consistent
not only with the NLRA, but also accords with common
law agency principles, which recognize that such divided
loyalty is inconsistent with the normal master-servant
relationship. See Restatement (Second) Agency § 226,
comment a (“giving service to two masters at the same
time normally involves a breach of duty by the servant to
one or both.”). See also Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 112 S.Ct. 1344, 1349 (1992) (observing that
construing the employer-employee relationship under the
NLRA “to imply something broader than the common-
law” thwarts congressional intent); H.R. Rep. 245, 80th
Cong., Ist Sess. at 18 (1947), reprinted in 1 Legislative
History of the National Labor Relations Act, 1947, 309
(admonishing courts to apply the common law rules
when construing the master-servant relationship under
the statute because “Congress . . . intends . . . that the
Board give to words not far-fetched meanings but ordi-
nary meanings”).

What the Board seemingly fails to comprehend is that
where union pay and union control motivate the orga-
nizer’s conduct, the organizer is acting as an agent of the
employer’s adversary, not as a run-of-the-mill pro-union
employee. As such, irrespective of whether a paid union
organizer technically falls within the NLRA definition of
“employee,” a targeted employer should be privileged to
refuse to hire the union agent on the presumption that the

20

union’s conflicting interests ultimately will be given pre-
cedence. Cf. Emanuel Hospital, 268 NLRB 1344, 1348 (1984)
(“suspicion, doubt or fear” that employee with potential
conflict of interest will act in derogation of employer’s
interest is sufficient basis to take action against
employee). Cf. also Wild v. United States Dep't of Housing
and Urban Dev., 692 F.2d 1129, 1133 (7th Cir. 1982) (where
employee’s off-duty behavior is in conflict with
employer’s mission, employer could reasonably termi-
nate him, as, for example, “[i]f a union officer of a musi-
cians’ union owned a nightclub that employed non-union
musicians”). To conclude otherwise, as did the Board in
this case, is to exalt form over substance and to ignore the
realities of the workplace.

Additionally, determining that an employer need not
hire the paid organizers of a union safeguards the right of
bona fide employees to freely choose whether or not they
wish to be represented by a union. It cannot be disputed
that the right to take part in free and fair elections is
crucial to realization of the Section 7 right to organize or
to refrain from organization. This right is necessarily
impaired by the Board’s construction of the statute in this
case because, under the Board’s view, paid union orga-
nizers might well be permitted to vote in a representation
election brought by the union paying them. See Dee Knit-
ting Mills, 214 NLRB 1041 (1974), enf’d, 538 F.2d 312 (2d
Cir. 1975). Thus, the Section 7 rights of legitimate
employees clearly are threatened by the Board’s rule.

Yet, even if paid union organizers were to be
excluded from such an election, there is harm to the bona
fide employees’ section 7 rights merely through the
thrusting of the paid union agents among their ranks. For,

7 /

21

moving about in the guise of rank and file employees, the
paid union agents are apt to “paint a false portrait of
employee support during the representation campaign.”
NLRB v. Savair Mfg. Co., 414 U.S. 270, 277 (1973). The
results of the election may be tainted thereby. Moreover,
it is well recognized that employees who are choosing
whether or not to be represented by a union are entitled
to know the character and scope of the unit in which they
will be included. See, e.g., NLRB v. Parsons School of
Design, 793 F.2d 503, 507-08 (2d Cir. 1986); NLRB v.
Lorimar Productions, Inc., 771 F.2d 1294, 1301 (9th Cir.
1985). If paid union organizers populate the ranks of a
targeted workforce in sufficient numbers, in addition to
the false portrait of support that they will paint, they will
distort the character and scope of the actual bargaining
unit and bargaining unit employees likely will become
confused about the role of “employee” organizers in the
collective bargaining process.

On the other hand, a holding that paid union agents,
like Hansen, do not have the right to engage in paid
organizing at an employer’s workplace is not tantamount
to permitting employers to discriminate against bona fide
employees who engage in union activity. Nor will if chill
the rights of such employees to form, join, and assist
labor organizations. Bona fide employees, who have a
stake in the employer’s enterprise, and who will endure
the consequences of whatever representation choice is
ultimately made by the employee group, will still enjoy
all of the rights afforded them under the NLRA. Unions
still will be able to appeal legitimately to employees
within the broad parameters permitted by the Act.
Unions simply will not be able to require employers to

22

subsidize their position by the forced employment of
individuals whose interest in and loyalty to the employer
is dictated by the union’s agenda.

II. PAID UNION ORGANIZERS ARE NOT
“EMPLOYEES” UNDER THE LANGUAGE OF
SECTION 2(3) OF THE ACT.

Where a statute is clear, the agency charged with
interpreting it is bound to apply it as written and the
reviewing court, in turn, should accord no deference to
an agency’s determination.-Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)
(reasoning that where Congress has spoken on the precise
issue, deference is inappropriate); NLRB v. Hearst Pub.,
Inc., 322 U.S. 111, 130-31 (1944) (same). Cf. Marbury v.
Madison, 5 U.S. 137, 177 (1803) (“[i]t is emphatically the
province and duty of the judicial department to say what
the law is”).

The Chamber submits the text of the NLRA supports
the Eighth Circuit’s conclusion that paid union organizers
are not “employees” when they present themselves for
employment to a targeted employer. The Chamber
believes that paid union organizers are excluded from
NLRA Section 2(3) when they act in this capacity. Accord-
ingly, the Board’s contrary interpretation of the NLRA is
a misreading of the statute and is entitled to no deference
by the Court.1°

10 Although the Brief of Local 292 on the merits (note 17
therein) disingenuously implies that the Board’s position on the
employee status of paid union organizers dates back to the

a

23

‘Section 2 of the NLRA, defines, inter alia, the terms
“employer,” “employee” and “labor organization.” Each
entity is recognized as distinct and apart from the others

1930s, the Board cannot be said to have announced its position
on the status of that group until the 1960s, in a footnote that the
Board candidly described as dictum in Sears, Roebuck and Co., 170
NLRB 533, 535 n.3 (1968), stating “[a]s long as the employee
gives a full day’s work to his ‘regular’ employer, the fact that he
renders services in other hours to the Union does not affect his
employee status, whether such latter services are paid or not.”
See also Elias Bros. Big Boy, Inc., 139 NLRB 1158, 1165 (1962)
(Board adopting without opinion the ALJ’s recommended deci-
sion in which he concluded that, on the facts presented, a wait-
ress who received a nominal sum from the union for expenses
incurred in organizational efforts did not thereby lose her
employee status), enf’d denied in relevant part, 327 F.2d 421 (6th
Cir. 1963). In Dee Knitting Mills, Inc., 214 NLRB 1041 (1974),
enf‘d, 538 F.2d 312 (2d Cir. 1975) (unpublished opinion), and Oak
Apparel, Inc., 218 NLRB 701 (1975), the Board definitively held
paid union organizers to be protected “employees” under Sec-
tion 2(3), even if they were working for an employer for the
express purpose of organizing that employer’s employees. The
Board has adhered to this interpretation, see Pilliod of Missis-
sippi, Inc., 275 NLRB 799 (1985); Palby Lingerie, Inc., 252 NLRB
176 (1980); Margaret Anzalone, Inc., 242 NLRB 879 (1979);
Henlopen Mfg. Co., 235 NLRB 183 (1978), enf’d denied on other
grounds, 599 F.2d 26 (2d Cir. 1979); Anthony Forest Products Co.,
231 NLRB 976 (1977), and, in light of this Court’s decision in
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), has extended it
to include paid union organizers who apply for work with the
objective of organizing an employer. E.g., Escada (USA), Inc., 304
NLRB 845 (1991), enf’d without opinion, 970 F.2d 898 (3d Cir.
1992); Willmar Elec. Serv., Inc., 303 NLRB 245 (1991), enf’d, 968
F.2d 1327 (D.C. Cir. 1992), cert. denied, U.S. ___, 113 S.Ct. 1252
(1993); H.B. Zachry Co., 289 NLRB 838 (1988), enf’d denied, 886
F.2d 70 (4th Cir. 1989).

24

by the language of the definitions. In Section 2(2) of the
Act, the term “employer”

includes any person acting as an agent of an
employer, directly or indirectly, but shall not
include the United States or any wholly owned
Government corporation, or any Federal
Reserve Bank, or any State or political subdivi-
sion thereof, or any person subject to the Rail-
way Labor Act, as amended from time to time,
or any labor organization (other than when acting as
an employer), or anyone acting in the capacity of
officer or agent of such organization.

29 U.S.C. § 152(2) (emphasis added).

The definition of “employee” is set out in Section 2(3)
and states

the term “employee” shall include any
employee, and shall not be limited to the
employees of a particular employer, unless the
Act explicitly states otherwise . . . but shall not
include any individual employed as an agricultural
laborer, or in the domestic service of any indi-
vidual employed by his parent or spouse, or any
individual having the status of an independent
contractor, or any individual employed as a
supervisor, or any individual employed by an
employer subject to the Railway Labor Act, as
amended from time to time, or by any other
person who is not an employer as herein defined.

29 U.S.C. § 152(3) (emphasis added).

11 Section 2(5) defines a “labor organization” as
any organization of any kind or any agency or
employee representation committee or plan, in which

j
a 4 ete ee a

25

As the foregoing demonstrates, the definitions of
these terms are interrelated and refer to each other. While
the term “employee” is defined broadly, the term
expressly excludes anyone who is employed “by any
other person who is not an employer” as defined by the
Act. Similarly, although the term “employer” is broad, it
contains a nuraber of exclusions, including one for a
“labor organization.” Through these two interrelated
exclusions, Congress has spoken: individuals who are
paid employees of a labor organization — including paid
union organizers — are not “employees” under the NLRA
because they are carrying out the union’s organizational
work.

The parenthetical to Section 2(2), which states that a
union is an employer when it is “acting as an employer,”
confirms the conclusion that a union’s agents are not
“employees” when acting as a labor organization, that is
attempting to organize an employer, like Town & Coun-
try. Indeed, this parenthetical statement was added for
the limited purpose of subjecting labor organizations to
the strictures of the NLRA in their treatment of their own
employees. See S. Rep. No. 1184, 74th Cong., 2d Sess. 4
(1934), reprinted in 1 Legislative History of the National
Labor Relations Act, 1935, 1099, 1102 (stating that “[i]n its

employees participate and which exists for the pur-
pose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages. rates of
pay, hours of employment, or conditions of work.

29 U.S.C. § 152(5). While the Act defines a labor organization as
comprised of employee-members, as this Court has empha-
sized, a labor organization has an identity distinct from that of
its constituents. Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992).

26

relations with its own employees, a labor organization
ought to be treated as an employer, and the bill so pro-
vides.”). See also Office Employees Int’l Union v. NLRB, 353
U.S. 313, 316 (1957) (holding Teamsters to be employer
liable for unfair labor practices in interfering with right of
its clerical employees to organize themselves). Congress
understood that any broader application of “employer”
status to labor organizations would “deprive unions of
one of their normal functions,” namely, organizing other
employers. S. Rep. No. 573, 74th Cong., Ist Sess. 6 (1934),
reprinted in 1 Legislative History of the National Labor
Relations Act, 1935, 2300, 2305. See also S. Rep. No. 1184,
74th Cong., 2d Sess. 4 (1934), reprinted in 1 Legislative
History of the National Labor Relations Act, 1935, 1099,
1102 (distinguishing between a union’s relations with its
“clerks, secretaries and the like” and its actions as an
advocate of unionization).

Thus, Congress drew a sharp distinction between the
union in its relationship with its own employees regard-
ing wages, hours, and terms and conditions of employ-
ment and the union’s organizing activities of other
employers. The union, in short, was to be an “employer”
only in the limited context of its relations with its own
employees. Paid agents of labor organizations were
intended to be statutory “employees” only when dealing
with their own employer, the union, not when dealing
with some other employer whom the union has targeted
for organizing.

The Board, responding to this analysis, asserted that
it was “immaterial” whether a union is a statutory
employer because the paid union organizer draws his
“employee” status from his attempted employment with

27

the targeted employer. Town & Country, supra, 309 NLRB
at 1257-58 n.36. In support of this proposition, the Board
drew an analogy between the union organizer and an
agricultural or government worker (neither of whom is
an “employee” under Section 2(3) of the Act) who seeks
work with an “employer covered by the NLRA” and thus
becomes an “employee vis-a-vis that new employer.” The
Board’s summary conclusion, however, ignores the poli-
cies underlying the NLRA and the facts of the case under
consideration. Thus, as a matter of fact, the paid union
organizers in this case, including Hansen, who applied
for work with Town & Country at the behest of the union,
could only work at Town & Country in furtherance of the
union’s organizational goal, could only work for Town &
Country so long as the union permitted them to do so,
and were to be paid for fulfilling these obligations.!? By
contrast, the typical agricultural or federal employee
seeking a second job does not labor under such restric-
tions, nor is he paid by his agricultural or federal
employer for his outside efforts. Furthermore, as dis-
cussed above in Section I, as a matter of NLRA policy,
Congress has struck a delicate balance between
employers, unions and employees. This balance is
destroyed when paid agents of labor organizations who
apply for work in order to further their union’s objectives

12 Indeed, while Mr. Hansen received $725 from Ameristaff,
the employment agency retained by Town & Country to help it
staff the project, he was additionally paid nearly $1,100 by the
union for his concurrent organizational efforts. See Town &
Country, supra, 34 F.3d at 629 n.2.

28

are deemed indistinguishable from any employee who
seeks a second job.!5

13 The Board and its amici also look to Section 302 of the
Labor Management Relations Act, 29 U.S.C. § 186, as evidence
that paid union personnel could be both employees of unions
and of targeted employers such as Town and Country. See Town
& Country, supra, 309 NLRB at 1257-58 n.36. Section 302 restricts
payments that an employer can legally make to an employee
representative, but excludes payments “to any representative of
his employees, or any officer or employee of a labor organiza-
tion, who is also an employee . . . of such employer, as compen-
sation for or by reason of his service as an employee of such
employer.” 29 U.S.C. § 186(c)(1). The Chamber submits that
there is a difference between Section 302, which permits an
employer to employ a union official if it wishes to do so without
being guilty of bribery under the LMRA, and the Board’s deci-
sion in this case, which requires, an employer to employ the paid
union agent. Furthermore, the Board’s logic in this regard is no
more persuasive than that rejected by this Court in Allied Chemi-
cal Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 170-71
(1971), that retirees are “employees” under the NLRA because
of their employee status under Section 302(c)(5) of the LMRA.
29 U.S.C. § 186(c)(5). There, the Court found there to be

no anomaly in the conclusion that retired workers are
“employees” within § 302(c)(5) entitled to the benefits
negotiated while they were active employees, but not
“employees” whose benefits are embraced by the bar-
gaining obligation of § 8(a)(5).

Id. at 170. So too here, there is no anomaly in Congress permit-
ting employers and unions willingly to enter into agreements
whereby union officials could be recognized as paid
“employees” of the employer without violating the bribery stat-
ute, while at the same time excluding such individuals from the
NLRA definition of “employees” whom employers must con-
sider for hire without regard to their concurrent union employ-

ment for the express purpose of organizing that employer.

a De ~*~

29

If the language of the statute is examined closely, it is
clear that neither Hansen and his cohorts, nor the two
paid union officials who applied for work at Town &
Country, should be considered statutory employees when
they sought a job with the Company to organize its
workforce. When these paid union organizers apply for
work in order to organize an employer, and are paid by
their union to do so, they are carrying out duties as the
union’s agents vis-a-vis that employer — duties that bring
them outside the ambit of protections provided to
“employees” under the NLRA. Lacking “employee” sta-
tus, they, like any other non-employee, could be rejected
or dismissed by a targeted employer without violating
the NLRA. Cf. Fort Smith Chair Co., 143 NLRB 514, 518
(1963), aff'd on other grounds sub nom., United Furniture
Workers v. NLRB, 336 F.2d 738 (D.C. Cir. 1964) (loss of
“employee” status under the NLRA means loss of the
Act’s protection and an employer’s motive for discharg-
ing those who have forfeited this status - including its
otherwise unlawful desire to rid itself of the employees’
union — is immaterial). In this respect, a paid union
organizer is similar to a company supervisor who is also
excluded from the definition of “employee” under Sec-
tion 2(3) of the Act, and who may be discharged because
of his union activities or sympathies. See, e.g., Parker-Robb
Chevrolet, Inc., 262 NLRB 402 (1982), review denied sub
nom., Auto Salesmen’s Union Local 1095 v. NLRB, 711 F.2d
383 (D.C. Cir. 1983).

The Board’s disregard of statutory language consis-
tent with the separate and diverse roles of employers and
unions has led to the erroneous and paradoxical conclu-
sion that the paid agents of one are “protected,” and

30

therefore must be “hired” by the other. Such an intoler-
able result must be rejected, and its conclusion that paid

union organizers are Section 2(3) “employees” set aside.

S

CONCLUSION

For the foregoing reasons, the Chamber of Commerce
of the United States of America urges the Court to sustain

the Eighth Circuit’s judgment.

Of Counsel:
STEPHEN A. BOKAT
Rosin S. CONRAD
Mona C. ZEIBERG
NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.
Washington, D.C. 20062
(202) 463-5337

Dated: April 1995

Respectfully submitted,

MARSHALL B. BABSON

STANLEY R. STRAUSS

ELIZABETH TORPHY-DONZELLA

OGLETREE, DEAKINS, NASH,
SMOAK & STEWART

2400 N Street, N.W., 5th Floor

Washington, D.C. 20037

(202) 887-0855

Counsel for the Chamber of
Commerce of the United
States of America

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0572%3A16. Public record. Not legal advice.