Opposition Brief — Teamster's Local 317 v. Clinton's Ditch Cooperative Co.

} Supreme Court, U.S,

4 FILED

JUN ae 1980

No. 85-1743 a8

errr rer ANIOL, JR,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

——~<j>—

TEAMSTERS, LOCAL 317,

Petitioner,

—_—VvV.—

CLINTON’S DITCH COOPERATIVE 2).. INC., and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

ON PETITION FOR AWRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

CLIFTON BUDD BURKE & DEMARIA

420 Lexington Avenue

New York, New York 10170

(212) 687-7410

Attorneys for Respondent

Of Counsel: Clinton’s Ditch Cooperative, Inc.

THOMAS W. BUDD*

RICHARD K. MUSER

*Counsel of Record

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QUESTIONS PRESENTED

Whether the Court of Appeals

created a standard for deter-

mining joint employer status

which conflicts with the

decision of another federal

Court of Appeals?

Whether the Court of Appeals

correctly applied the substan-

tial evidence standard in

vacating the National Labor

Relations Board's decision that

Clinton's Ditch Cooperative Co.,

Inc. was a joint employer of

drivers represented by Teamsters

Local 317?

Whether the question raised by

Petitioner regarding the

enforceability of an alleged

oral agreement between the

parties should be considered by

this Court?

QUESTIONS PRESENTED

ai.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...

STATEMENT

SUMMARY eeeoeeeenseeeseeteneenrseee#eeseeeee

COUNTERSTATEMENT OF FACTS ......

REASONS FOR DENYING THE WRIT ...

I. THE COURT OF APPEALS DID

NOT RENDER A DECISION ON

THE PROPER STANDAR-L FOR

DETERMINING JOINT EMPLOYER

STATUS WHICH CONFLICTS

WITH THE DECISION OF

ANOTHER CIRCUIT COURT .....

II. THE COURT OF APPEALS

CORRECTLY DECIDED THAT

SUBSTANTIAL EVIDENCE DID

NOT SUPPORT THE BOARD'S

DECISION THAT CLINTON'S

DITCH WAS A JOINT EMPLOYER

OF THE DRIVERS

III. PETITIONER'S ARGUMENT THAT

RESPONDENT VIOLATED SECTION

8(d) OF THE ACT BY REFUSING

TO GIVE EFFECT TO AN ALLEGED

is

ka

18

ee

ORAL AGREEMENT BETWEEN THE TWO

PARTIES IS NOT PROPERLY BEFORE

THIS COURT eeeeeeseerseereseteeee @

CONCLUSION ..cccccccccece errr yr

iii.

TABLE OF AUTHORITIES

Cases:

Boire v. Greyhound Corp.,

Bee Weems SIS LIFES) we vcces

Ellis v. Dixon, 349 U.S. 45

(1955), rehearing denied, 3

ame SOS CAPSS) cacseceneee

International Chemical Workers

Union Local 483 v. N.L.R.B.

961 F.2d 253 (D.C. Cir. 197

International House v. N.L.

676 F.2d 906 (2d Cir. 1982)

Industrial Personnel Corp. v.

BeaktaMscBs,» O97 F.24 2260

(8th Cir. 1981), cert. deni

454 U.S. 1148 (1982) ......

N.L.R.B. v. Browning-Ferris

Industries of Pennsylvania,

Page

bint e’s iS, i8

8

50

(nen ee 27

,

7?) bas 16

Me Bee

janes 14,15,

18

ed,

ceaane 14

AMG.»

Sve BPeeo 147 (30 Cir. 1982) ... 16

N.L.R.B. v. Jewell Smokeless

Coal Corp., 435 F.2d 1270

Eh BETO Cosecceccerecece 16

Pulitzer Publishing Co. v. N.L.R.B.,

618 F.2d 1275 (8th Cir. 1980),

cert. denied, 449 U.S. 875

ee ee eee 14, 15

Ref-Chem Company v. N.L.R.B.,

ae Bsee asy (etn Cir. 1969) ..... 17

Sun Maid Growers v. N.L.R.B.,

Saw eeee sO teen Cif. 1960) wcccecss 15

iv.

United Automobile Workers

v. Scofield, 382 U.S. 205

(1965) wcccccccccccccccccccess

Universal Camera Corp. v.

N.L.R.B., 340 U.S. 474 (1951)

Statutes and Rules:

National Labor Relations Act

oe ef ae eaten

O86. Oe cask

Be Webcts. BO AS hake ee kOe

eee 26

eee 24

-~ ne re SE

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-1750

TEAMSTERS LOCAL 317,

Petitioner,

Vv.

CLINTON'S DITCH COOPERATIVE CO., INC.,

and NATIONAL LABOR RELATIONS BOARD,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT

On February 28, 1985 the

National Labor Relations Board (the

"Board") issued its decision and order

in

274 NLRB No. 103. The Board found that

Clinton's Ditch Cooperative Co., Inc.

("Clinton's Ditch" or "Respondent") was a

joint employer of truck drivers with

- 2-

Fairfield Transportation Corp.

("Fairfield") and that Clinton's Ditch had

violated Sections 8(a)(1) and (5) of the

National Labor Relations Act (the "Act"),

29 U.S.C. §158(a) (1) and (5), by failing

to bargain with Teamsters Local 317 (the

"Union" or "Petitioner") over Respondent's

Gecision to subcontract its trucking

operations. Clinton's Ditch petitioned

the United States Court of Appeals for the

Second Circuit for review on the basis

that sufficient evidence did not support

three of the Board's essential findings,

viz., (1) Clinton's Ditch was a joint

employer, (2) Clinton's Ditch failed to

bargain with the Union over a mandatory

subject of bargaining; 1.e.,

subcontracting its trucking operations,

(3) the Union had made a timely demand

upon Respondent to bargain. On December

5, 1985, the Court of Appeals vacated the

Board's order based only upon its holding

ee

- 3-

that there was insufficient evidence on

the record to support the Board's

determination that Clinton's Ditch was a

joint employer of the truck drivers.

The Union, Intervenor below,

seeks review of this decision. The Board,

Respondent below, takes the position that

this case is not appropriate for

certiorari.

SUMMARY

The petition for certiorari

should be denied. The specific con-

Siderations governing a grant of

certiorari set forth in Rule 17 are not

present in this case, nor are there any

"special and important reasons" for this

Court to review the decision of the Court

Of Appeals. Petitioner's claim that the

Second Circuit has developed a new

standard for determining joint employer

status that has contributed to a conflict

among the circuits is incorrect. The

- 4-

Court of Appeals neither developed a new

joint employer test nor adopted a standard

for determining joint employer status that

was in conflict with the decision of

another circuit. Instead, after carefully

examining the facts of the instant case

and the various joint employer standards

espoused by the Board and the circuit

courts, the Court of Appeals concluded

that application of any test to the

instant case would result in the deter-

mination that Clinton's Ditch was not a

joint employer of the drivers. In sun,

the Court of Appeals' holding was based

solely on its determination that the

evidence on the record did not

sufficiently support the Board's finding

that Clinton's Ditch was a joint employer.

Petitioner can posit no compelling reason

to warrant this Court's review of the

Court of Appeals' decision that the facts

- 5 -

of this case did not support a finding

that Clinton's Ditch was a joint employer.

There is nothing to support

Petitioner's claim that the Court below

misapplied the substantial evidence

standard.

Petitioner's claim that the

Second Circuit erred in finding a waiver

of an alleged oral agreement between

Petitioner and Clinton's Ditch is incorre-

ct. The Court below, in agreement with

the Administrative Law Judge and the

Board, found no oral agreement. Further-

more, the issue of the oral agreement was

not properly before the Court below and

the portion of Petitioner's brief address-

ing that subject had been stricken by

order of the Court. Therefore, the issue

is not properly before this Court.

- 6 -

COUNTERSTATEMENT OF THE FACTS

Clinton's Ditch is engaged in

the business of bottling and canning Pepsi

Cola and other beverage products at its

plant in Cicero, New York. These products

are then shipped primarily to other Pepsi

Cola bottlers which are members of the

Cooperative. Prior to January, 1976, the

products were transported by employees of

Clinton's Ditch in trucks leased from and

maintained by Ryder Truck Rental

("Ryder"). The Clinton's Ditch drivers

were represented by Petitioner.

[Petitioner's Appendix at A-5, "Pet. App."

herein].

On January 1, 1976, Fairfield

purchased these trucks from Ryder and

entered into a truck leasing agreement and

maintenance contract with Clinton's Ditch.

In May, 1976, Clinton's Ditch and

Fairfield entered into a= separate

th

= J =

agreement whereby Fairfield assumed

Clinton's Ditch's obligations under its

collective bargaining agreement with the

Union which ran from February 2, 1976

until February 1, 1978. Clinton's Ditch

notified the Union by letter on September

7, 1976 that “effective Monday, September

20, 1976, [Clinton's Ditch] will transfer

our trucking over to [Fairfield] along

with the collective bargaining agreement

- »- » The drivers will be transferred to:

[Fairfield's] payroll on that date also."

By letter dated September 9, Clinton's

Ditch asked the Union to acknowledge

Fairfield as the new employer of the

drivers after the transfer of operations

had taken place. Ina letter four days

later the Union responded by stating that

it would refuse to recognize Fairfield as

the drivers' employer. [Pet. App. A-6 to

7).

- 8 -

On September 20, the drivers

were transferred to Fairfield's payroll.

Clinton's Ditch did pay the drivers’

vacation pay until the end of 1976 and

continued to provide the drivers with a

few nominal benefits (a Thanksgiving

turkey, an annual clambake, and two cases

of soda a week) throughout the period of

its contract with Fairfield. Otherwise,

Fairfield assumed all responsibility for

the terms of the drivers’ employment.

[Pet. App. A-7].

While the drivers essentially

performed the same functions as before,

they were now under the supervision and

control of the Fairfield dispatcher.

Clinton's Ditch would prepare a list of

pickups and deliveries and submit it to

the Fairfield dispatcher who would assign

the runs to the drivers. On occasion,

Clinton's Ditch would alter a drivers

assignment by directly contacting the

- 9 -

driver at one of his stops, ask drivers to

move empty trailers around the Clinton's

Ditch yard, or ask them to take runs not

listed on the dispatch sheet. The drivers

were under standing orders from Fairfield

to honor such requests from Clinton's

Ditch. [Pet. App. A-8].

Clinton's Ditch informed members

of the Cooperative that the drivers were

now employed by Fairfield, but that its

members should contact Clinton's Ditch if

they had any problems with the drivers.

Several times, when members complained to

Clinton's Ditch about the conduct of the

drivers, Clinton's Ditch would forward

these complaints to Fairfield. On

occasion, these complaints would take the

form of a written complaint or would be

discussed with Fairfield. Fairfield would

investigate the complaint and decide

whether to institute disciplinary action.

Oftentimes, but not always, Fairfield

- 10 -

would inform Clinton's Ditch of the action

it had taken. Clinton's Ditch did not

participate in grievance proceedings

involving the Fairfield drivers. [Pet.

App. A-8].

In late 1977 and early 1978, the

Union and Fairfield met to negotiate a new

collective bargaining agreement.

Clinton's Ditch did not participate in the

negotiations. Eventually Fairfield and

Petitioner settled upon a new agreement

that was to run to February, 1981.

Clinton's Ditch was not a party to this

agreement. (Pet. App. A-9].

Fairfield informed Clinton's

Ditch on July 29, 1980 that it would

terminate their truck leasing and main-

tenance contract on October 31, 1980

unless the parties could reach a new

agreement on that date with a rate

increase for Fairfield's services.

Clinton's Ditch contacted other trucking

a

companies as possible replacements and in

late August received a written proposal

from Global Leasing, Inc. ("Global"). In

early October Clinton's Ditch requested

that Fairfield postpone the termination of

the contract for thirty days. This

request was refused by Fairfield. [Pet.

App. A-9].

Fairfield informed the Union, by

letter dated October 16, 1980, that all

drivers would be permanently laid off on

October 30. Hall, the Union president,

approached Respondent's president Woodruff

on this subject. Woodruff informed Hall

that a thirty-day extension of the con-

tract with Fairfield had been requested

and denied, so Hall should speak to

Fairfield. [Pet. App. A-9].

Thereafter, Clinton's Ditch

informed Global to be ready to supply

Grivers on November l. After Clinton's

- 12 -

proposal to replace Fairfield with Global,

the two parties signed a contract on

October 29, 1980. Fairfield sold its

tractors to Ryder and its trailers to

Lincoln Leaseway. These companies then

leased this equipment to Clinton's Ditch

for use by Global drivers. Initially,

Global did not hire any of the drivers

formerly employed by Fairfield. [Pet. App.

A-9 to 10).

On October 3090, 1980, the Union

sent a telegram to Clinton's Ditch demand-

ing that it bargain with the Union over

its decision to retain Global as its

trucking company. Thereafter, the Union

initiated the present proceeding by filing

charges against Clinton's Ditch at the

National Labor Relations Board. [Pet. App.

A-i0 to li}.

>. 13 =

REASONS FOR DENYING THE WRIT

:

THE COURT OF APPEALS DID NOT

RENDER A DECISION ON THE

PROPER STANDARD FOR DETERMINING

JOINT EMPLOYER STATUS WHICH

CONFLICTS WITH THE DECISION

OF ANOTHER CIRCUIT COURT.

The Petitioner argues that the

issue presented by this case is an

"important issue of federal labor law"

which requires Supreme Court intervention.

Petitioner also argues that the important

issue has not been resolved below because

the Court of Appeals has contributed to a

conflict among the circuits by developing

a new standard for determining joint

employer status. Neither claim is

accurate. As to the need for this Court

to become involved in reviewing the purely

factual issue of the joint employer

status, it is sufficient to note that

the position of the Board, the agency

empowered to formulate this area of

- 14 -

federal labor policy, is that this case is

not appropriate for certiorari.

Furthermore, this Court has recently

denied certiorari in two "joint employer"

cases under the National Labor Relations

Act. Pulitzer Publishing Co. v. N.L.R.B,

618 F.2d 1275 (8th Cir.), cert. denied,

449 U.S. 875 (1980); Industrial Personnel

Corp. v. N.L.R.B, 657 F.2d 226 (8th Cir.

1981), cert. denied 454 U.S. 1146 (1982).

In response to the alleged

conflict among the circuits, the Court of

Appeals rendered its decision only after

examining all the joint employer tests put

forth by the Board and various circuits

and deciding that under any standard the

facts of this case did not support the

Board's conclusion that Clinton's Ditch

was a joint employer of the drivers.

In International House v.

N.L.R.B., 676 F.2d 906 (2d Cir. 1982), the

Second Circuit recognized that other

- 15 -

circuits had used various tests to de-

termine whether an employer possessed

sufficient control over the work of the

employees to qualify as a joint

employer.'" International House, 676 F.2d

at 912; Boire v. Greyhound Corp., 376 U.S.

473, 482 (1964). At that time, the Court

in International House noted that the

Eighth Circuit in Pulitzer Publishing Co.

v. N.L.R.B., 618 F.2d 1275, 1279 (8th

Cir.), cert denied, 449 U.S. 875 (1980),

examined four factors to determine joint

employer status: (1) common ownership, (2)

common management, (3) interrelation of

operations, and (4) centralized control of

labor relations. The Ninth Circuit

examined the Employers' "authority over

employment conditions which are within the

area Of mandatory collective bargaining."

Sun Maid Growers v. N.L.R.B., 618 F.2d 56,

59 (9th Cir. 1980). The D.C. Circuit

looked to "the amount of actual and

- 16 =

potential control *** over the *** em-

ployees." International Chemical Workers

Union Local 483 v. N.L.R.B., 561 F.2d 253,

255 (D.C. Cir. 1977).

Similarly, the Court of Appeals

noted other tests that had been developed

for determining joint employer status.

So, for example, the Court noted that the

Fourth Circuit, in N.L.R.B. v. Jewell

Smokeless Coal Corp., 435 F.2d 1270, 1271

(4th Cir. 1970) (per curiam), had examined

whether the employer "possessed sufficient

indicia of control over the work of the

employees," while the Third and Fifth

Circuits used the same analysis employed

by the Board in the instant case; i.e.,

whether the employer shared or

co-determined matters governing the

employees' essential terms and conditions

of employment. N.L.R.B. Vv.

Browning-Ferris Industries of

Pennsylvania, Inc., 691 F.2d 1117, 1123

« 13 «

(3rd Cir. 1982); Ref-Chem Company v.

N.L.R.B., 418 F.2G 127, 129 (Sth Cir.

1969).

After examining the various

standards for determining joint employer |

status, the Court concluded, as it had in

International House, that there was "no

need to select among these approaches or

to devise an alternate test ....", [Pet.

App. at A-14 quoting 676 F.2d at 913],

because it found "that an essential

element under any determination of joint

employer status in a _ subcontracting

context is lacking here - sufficient

evidence of immediate control over the

employees." [Pet. App. at A-14]. Based on

its examination of the facts presented in

the instant case, the Court of Appeals

specifically declined to establish or

adhere to a specific test for determining

joint employer status. Therefore, the

Court of Appeals did not render a decision

- 18 -

in conflict with the decision of another

circuit court that would warrant this

Court's review under Rule 17.

Il.

THE COURT OF APPEALS CORRECTLY

DECIDED THAT SUBSTANTIAL

EVIDENCE DID NOT SUPPORT THE

BOARD'S DECISION THAT CLINTON'S

DITCH WAS A JOINT EMPLOYER OF

THE DRIVERS.

As this Court found in Boire v.

Greyhound Corp., 376 U.S. 473, 481 (1964),

the question of whether an employer pos-

sesses sufficient control over the en-

ployees to qualify as a joint employer "is

essentially a factual issue." The Board's

determination of that issue will be

conclusive only if it is "'supported by

substantial evidence on the record con-

sidered as a whole'". International House

v. N.L.R.B., 676 F.2d 906, 912 (2d Cir.

1982); (29 U.S.C. §160(e)). The Court of

Appeals, in examining the essentially

- 19 -

undisputed facts of this case correctly

found that they did not support the

Board's conclusion that Clinton's Ditch

was a joint employer of the drivers.

As stated previously, the Court

of Appeals focused on the one essential

element common to all joint employer

tests, namely, sufficient evidence of

immediate control over the employees. The

Court employed five factors to determine

if the evidence on the record supported a

finding that Clinton's Ditch exercised

sufficient immediate control over the

drivers to warrant a conclusion that it

was a joint employer. The five areas of

control examined by the Court were: hiring

and firing; discipline; pay, insurance and

records; sipervision; and participation in

the collective bargaining process,

Examining each of these areas of control

separately, the Court found that the

record evidence did not indicate that

- 20 -

Clinton's Ditch evrercised sufficient

control to warrant its being found a joint

employer.

The Court noted that the Admin-

istrative Law Judge ("ALJ") had found that

"it appears that hiring and firing was

done by Fairfield." [Pet. App. at A-14,

A-61]. In contrast to the ALJ's finding

that Respondent “effectively disciplined

drivers," [Pet. App. at A-60], the Court

noted that there was no evidence that

Clinton's Ditch was directly involved in

any disciplinary action against the

drivers. Indeed, the Court found that the

complaints Clinton's Ditch made to

Fairfield against the drivers were in the

nature of complaints a customer would

raise over unsatisfactory performance.

[Pet. App. A-15]. Regarding pay,

insurance and records, the ALJ determined

that it was Fairfield who was responsible

for pay and maintaining the drivers'

- 21-

records. The record contained no evidence

that Clinton's Ditch provided insurance

for the drivers. lideed, the Court

determined that the isolated benefits

Clinton's Ditch did provide to the drivers

were so de minimis in nature as to be

insignificant in a joint employer

analysis. [Pet. App. A-15 to 16]. The

alleged instances of supervisory

involvement by Clinton's Ditch upon which

the ALJ rested his finding were Clinton's

Ditch accepting some collect phone calls

from the drivers and occasionally

assigning some runs. Examining the record

as a whole, the Court found that

Respondent's limited direct contact with

the drivers did not support the day-to-day

supervision found by the ALJ. [Pet. App.

A-16 to 17].

The Court of Appeals also held

that the lack of record evidence indicat-

ing Clinton's Ditch involvement in the

- 22 -

collective bargaining process between

Fairfield and the Union also warranted a

finding that Respondent was not a joint

employer. The Court's determination was

based on several pertinent facts estab-

lished by the record. One, Clinton's

Ditch neither participated in the 1978

bargaining negotiations between Fairfield

and the Union, nor was it a party to the

agreement signed between the two parties.

Two, the Court determined that the ALJ's

finding that Fairfield "continually had to

consult with Clinton's Ditch" during the

bargaining process was not indicative of

Respondent's involvement as an employer,

but merely demonstrated that Fairfield was

informing a customer of possible rate

increases due to increased labor costs.

In addition, the Court noted that the

record established only that the

Fairfield representative had stated to the

Union that he had to consult with

- 23-

Clinton's Ditch before making any bargain-

ing concessions. There was no evidence on

the record to indicate whether the rep-

resentative had actually consulted with

Respondent or was merely using this

statement as a bargaining ploy with the

Union. Three, the Court noted that the

NLRB had greatly relied on Clinton's Ditch

influence on Fairfield during negotiations

to insert a clause in the contract insur-

ing that Fairfield's drivers would not

honor a picket line by Respondent's

production employees. As the Court aptly

noted, however, the ciause that was

ultimately put imto the contract as a

result of this alleged pressure on

Fairfield recognized "the complete sepa-

ration of Clinton's Ditch and Fairfield

Transportation" in resolving disputes.

The resulting clause is hardly a statement

upon which to base a conclusion that

- 24 -

Respondent was a joint employer of the

drivers. [Pet. App. A-17 to 18].

This Court has long-recognized

that a Court of Appeals must assess the

totality the record evidence in determin-

ing whether "substantial evidence"

supports the Board's findings and con-

clusions. Universal Camera Corp. v.

N.L.R.B., 340 U.S. 474, 487-488 (1951).

In Universal Camera, this Court held that

a reviewing Court may set aside a Board

decision "when it cannot conscientiously

find that the evidence supporting that

decision is substantial, when viewed in

the light that the record in its entirety

furnishes, including the body of evidence

opposed to the Board's views." 340 U.S.

at 488.

The Court of Appeals in the

instant case applied the guidelines

enunciated by Universal Camera in de-

termining that substantial evidence did

- 25 «

not support the Board's finding Clinton's

Ditch to be a joint employer. There is no

compelling reason for this Court to review

that determination.

itt.

PETITIONER'S ARGUMENT THAT

RESPONDENT VIOLATED SECTION 8 (d)

OF THE ACT BY REFUSING TO GIVE

EFFECT TO AN ALLEGED ORAL

AGREEMENT BETWEEN THE TWO

PARTIES IS NOT PROPERLY BEFORE

THIS COURT.

Petitioner argues that the Court

of Appeals departed from established

precedent and clear statutory language in

failing to hold that an alleged oral

promise by Clinton's Ditch to rehire Union

drivers in the event Fairfield terminated

its operations was enforceable under

Section 8(d) of the Act. 29 U.S.C.

§158(d). That issue is not properly before

this Court.

Both the ALJ and the Board held

that there had been no contract between

- 26 ~

the parties regarding Clinton's Ditch

rehiring the drivers in the event

Fairfield went out of business, deciding

this purely factual issue against the

Petitioner. The ALJ stated:

There was no contract between

Clinton's Ditch and Local 317 because

there was no meeting of the minds

between the parties that Clinton's

Ditch would rehire the drivers as

their direct employees if Fairfield

went out of business. (Pet. App.

A-61).

The Board adopted this conclu-

sion. (Pet. App. A-22).

As a successful charging party

on the other allegations against Clinton's

Ditch, Respondent intervened in the

proceedings before the Court of Appeals.

See, United Automobile Workers v.

Scofield, 382 U.S. 205 (1965). Since

Petitioner was an "aggrieved party" to the

Board's determination that there was no

Section 8(d) violation, however, Respon-

dent was required to petition the Second

- 27 -

Circuit for review of this determination.

Petitioner did not do so. Accordingly,

the Board's motion to strike that part of

Petitioner's brief challenging the Board's

finding that Clinton's Ditch did not

violate Section 8(d) of the Act was

granted by the Court of Appeals prior to

oral argument.

Since the question of whether

Respondent violated Section 8(d) of the

Act was not before the Court of Appeals,

that issue cannot be raised before this

Court as the basis for a writ of

certiorari. See, Ellis v. Dixon, 349 U.S.

458 (1955), rehearing denied, 350 U.S. 855

(1955). Furthermore, the threshold issue

presented is a purely factual one of

whether an agreement was reached. Both

the ALJ and the Board held against

Petitioner on this issue. The resolution

of this issue, which Petitioner did not

- 28 -

appeal from the Court below, does not

merit the granting of certiorari.

CONCLUSION

For the foregoing reasons, the

Union's petition for a writ of certiorari

should be denied.

Dated: June 22, 1986

Respectfully submitted,

Thomas W. Budd, Esq.

Richard K. Muser, Esq.

Clifton Budd Burke & DeMaria

Attorneys for Respondent

Clinton's Ditch Cooperative

Co., inc. ,

420 Lexington Avenue

New York, New York 10170

(212) 687-7410