# Opposition Brief — Ensign Electric Division of Harvey Hubbell Inc. v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 984

## Text

Supreme Court, U.S,
FILED

No. 86-334 2) NOV 1 ‘1988

. SPANIOL, JR,
CLERK

In the Supreme Court nf the United States—

OCTOBER TERM, 1986

ENSIGN ELECTRIC DIVISION OF HARVEY HUBBLE
INCORPORATED AND UNITED STEELWORKERS OF
AMERICA, LOCAL 5925, AF-L-CIO-CLC, PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD
\

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION

CHARLES FRIED

Solicitor General
Department of Justice
ROSEMARY M. COLLYER Washington, D.C. 20530
General Counsel (202) 633-2217
JOHN E. HIGGINS, JR.
Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel
NORTON J. COME

Deputy Associate General Counsel

LINDA SHER
Assistant General Counsel

JOHN BURGOYNE
Attorney
National Labor Relations Board
Washington, D.C. 20570

sik
a

Dy naga Se ae ANSE

QUESTIONS PRESENTED

1. Assuming the question is properly presented,
whether the court of appeals erred in sustaining the
National Labor Relations Board’s retroactive applica-
tion of its decision in Gulton Electro-Voice, Inc., 266
N.L.R.B. 406 (1988), which holds that preferential
seniority may not lawfully be extended to union offi-
cials who are not involved in grievance processing or
other similar on-the-job contract administration
duties.

2. Whether bargaining unit employees waive their
statutory right to be free of discrimination that en-
courages union membership by ratifying a collective
bargaining agreement which grants superseniority
for purposes of layoff to union officers who have no
grievance handling or contract administration duties.

3. Whether Section 10(b) of the Act, 29 U.S.C.
160(b), precludes the Board from holding unlawful
the enforcement of a superseniority provision that
was executed and firs. implemented more than six
months prior to the filing of an unfair labor practice
charge.

(1)

TABLE OF CONTENTS

Page
I ial iheicanncisinincennias inebonesixncacnancaonbartmicaaniencs 1
a cnsasepenigubiinoimacmuisnte 2
RE SE a 2
is sas cmssnininteheisinsioniinninetinbandain’ 6
a cep hianamttbresnenevnasenatint 14
TABLE OF AUTHORITIES
Cases:
Chevron Oil Co. v. Huson, 404 U.S. 97 .......22222222....... 5
EEOC v. FLRA, No. 84-1728 (Apr. 29, 1986) ........ 7,8
Paw v. Greet, ine., Gee Uc. IP ................-......---.-.. 8
Garment Workers v. Quality Mfg. Co., 420 U.S.
UL he ee tA CEGRLL SaaS Ra ia US aE 7
Gem City Ready Mix Co., 270 N.L.R.B. 1260 .......... 11
Gulton Electro-Voice, Inc., 266 N.L.R.B. 406, en-
forced sub nom. Local 900, Int’l Union of Elec-
trical Workers v. NLRB, 727 F.2d 1184........ 3-4, 6, 7, 9,
10, 11
Heckler v. Community Health Services, 467 U.S.
Cec mancnaunee 9
International Harvester Co., 268 N.L.R.B. 966........ 13
Local 1384, UAW v. NLRB, 756 F.2d 482 ................ 10, 11
Local Lodge No. 1424, [AM v. NLRB, 362 U.S. 411.. 12
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 .......... 10
Metropolitan Edison Co. v. NLRB, 469 U.S. 693...... 10, 11
NLRB vy. Auto Warehousers, Inc., 571 F.2d 860...... 13
NLRB v. Bell Aerospace Co., 416 U.S. 267 .............. i)
NLRB vy. Local 1131, UAW, 777 F.2d 1181 .......... 10, 13, 14
NLRB v. Magnavox Co., 415 U.S. 322 ...........0.22022.... 10, 11
NLRB vy. Niagara Machine & Tool Works, 746 F.2d
SESS I RE 6, 9, 10, 11-12
NLRB v. Wayne Transp., A Div. of Wayne Corp.,
ERIE AE a OC 6, 7,9
Radio Officers’ Union v. NLRB, 347 U.S. 17 ............ 10, 11

(111)

IV

Cases—Continued: Page |
Retail, Whoiesale & Department Store Union Vv.
le I epreemnan ree ae 5,9

SEC V. Chenery, 882 U.S. 104 ......................0............. 9
United States Steel Corp., 268 N.L.R.B. 1187 .......... 13

United Electrical Workers, Local 623, 230 N.L.R.B.

406, enforced sub nom., D’Amico v. NLRB, 582

ff AR na aE nirnn Peg eet tec ee re PORE CN AR AE ie 4
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.

pps st oe Pe Mea Renner ear LE Ney BOLE TEY BREED PH Poe Ae ARIES 7,8
Youakim v. Miller, 425 U.S. 231

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et
seq.:

§ 8(a) (1), 29 U.S.C. 158 (a) (1) ...--22. ee. 3
§ 8(a) (3), 29 U.S.C. 158 (a) (3) -...-.....2.. 3
§ 8(b) (1) (A), 29 U.S.C. 158 (b) (1) (A) ........... 3
§ 8(b} (2), 29 U.S.C. 158 (b) (2)..............- 3
FR pe IR ors rcctessencennsininseinicsencens 12
SRG) yee Rn BO is ins iteseneninsnmeni 6, 7,8

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-334

ENSIGN ELECTRIC DIVISION OF HARVEY HUBBLE
INCORPORATED AND UNITED STEELWORKERS OF
AMERICA, LOCAL 5925, AFL-CIO-CLC, PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-
8a) is reported at 767 F.2d 1100. The decision of
the court of appeals on rehearing (Pet. App. 9a-14a)
is reported at 783 F.2d 1121. The decision and order
of the National Labor Relations Board (Pet. App.
17a-28a) are reported at 268 N.L.R.B. 620.

(1)

2

JURISDICTION

The judgment of the court of appeals (Pet. App.
15a) was entered on February 19, 1986. A petition
for rehearing and suggestion for rehearing en banc
was denied on April 1, 1986 (Pet. App. 16a). On
June 25, 1986, Chief Justice Burger extended the
time for filing a petition for a writ of certiorari to
and including July 28, 1986 (Pet. App. 46a). On
July 23, 1986, Justice Brennan further extended the
time for filing a petition for a writ of certiorari to
and including August 29, 1986 (Pet. App. 47a). The
petition for a writ of certiorari was filed on August
29, 1986. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, United Steelworkers of America,
Local 5925, AFL-CIO-CLC, has negotiated collective
bargaining agreements on behalf of the employees of
petitioner, Ensign Electric Division of Harvey Hub-
ble Incorporated (Ensign Electric), for many years.
Pet. App. 30a. These agreements traditionally have
required that Ensign Electric lay off employees with
the least seniority whenever reductions-in-force are
necessary. Jd. at 30a-3la. Since 1970, however, the
agreements have also provided that the “local union
president, vice-president, recording secretary, treas-
urer, and grievance committee shall have preferen-
tial seniority in the event of layoff.” Jd. at 30a.
Thus, when Ensign Electric had to lay off a large
number of its employees between March 1979 and
April 1981, the extant collective bargaining agree-
ment (effective February 10, 1979 to October 1,
1981) required Ensign Electric to retain the union’s
president, recording secretary, and treasurer, even

3

though these employees had less “natural or earned”
seniority than other employees being laid off at the
time. Id. at 30a-3la. Of these three union officers,
only the union president had on-the-job contract ad-
ministration or grievance processing responsibilities.
Id. at 31a-34a.

2. One of the employees laid off during the March
1979-April 1981 period subsequently filed an unfair
labor practice charge with the National Labor Rela-
tions Board (Board),’ claiming that the preferential
seniority clause in effect at the time of his layoff
was unlawful. Pet. App. 10a. The Board agreed.
Id. at 17a-28a. It found that Ensign Electric had
violated Section 8(a)(1) and (8) of the National
Labor Relations Act, 29 U.S.C. 158(a)(1) and (8),
and that the union had violated Section 8(b) (1) (A)
and (2) of the Act, 29 U.S.C. 158(b)(1)(A) and
(2), by “maintaining and enforcing the superseniority
clause with respect to the recording secretary and
treasurer during * * * |\[the] March 1980 to April
1981 layoff periods,” and by laying off “employees
who would not have been affected if the collective
bargaining agreement had not accorded * * * [the
recording secretary and treasurer] superseniority
***” Pet. App. 19a-20a.

In so holding, the Board followed (Pet. App. 19a)
its earlier decision in Gulton Electro-Voice, Inc., 266

1 The employee filed this charge on September 15, 1980,
over 12 months after the preferential seniority clause of the
February 10, 1979 agreement was first exercised on August
31, 1979. Pet. App. 10a. The Board’s Genera! Counsel issued
a complaint on November 4, 1980 concerning this charge.
Ibid. The General Counsel, however, amended his complaint
on June 10, 1981, to cover the claims of employees laid off at
the time the union’s treasurer exercised his right to preferen-
tial seniority on April 10, 1981. Ibid.

4

N.L.R.B. 406 (1983), enforced sub nom. Local 900,
Int'l Union of Electrical Workers v. NLRB, 727 F.2d
F.2d 1184 (D.C. Cir. 1984). The Gulton decision,
which overruled the Board’s prior decision in United
Electrical Workers, Local 628, 230 N.L.R.B. 406
(1977), enforced sub nom. D’Amico v. NLRB, 582
F.2d 820 (3d Cir. 1978), had held that, while “[i]n-
suring the enforcement of the collective bargaining
agreement by retaining on the job union representa-
tives responsible for processing grievances is a suffi-
ciently compelling reason to allow limited super-
seniority with respect to layoff and recall to those who
perform steward-like duties[,] * * * the stewards’
need to maintain an on-the-job presence does not
generally apply to officers [and] thus the justifica-
tion used for stewards does not extend to officers
generally—unless the latter perform steward-like
duties.”” Gulton Electro-Voice, Inc., 266 N.L.R.B. at
408. Applying that rationale to the instant case,
the Board found that the superseniority clause in
petitioners’ collective bargaining agreement, was un-
lawful because it did not limit layoff and recall pro-
tection to union officers with on-the-job contract ad-
ministration or grievance handling responsibilities.
Pet. App. 19a-20a.

The Board also rejected petitioners’ claim that the
“6-month limitation proviso to Sec[tion] 10(b) of
the Act” immunized this superseniority clause from
the Board’s scrutiny. Pet. App. 19a-20a & n.8. Though
the clause had been ratified and first implemented
more than six months before the filing of the unfair
labor practice charge (ibid.), the Board found that
“the consolidated complaint does not attack the execu-
tion of the contract * * *” (ibid.), but rather “only the
* * * maintenance and enforcement of [the] super-
seniority clause within the applicable [six-month]

5

period * * *.” Jbid. Accordingly, the Board found
petitioners’ “exceptions lacking in merit” (ibid.) and
ordered, inter alia, that Ensign Electric reinstate the
individuals who had been laid off between March 17,
1980, the date on which the six-month period com-
menced, and April 10, 1981, the date or which lay-
offs ceased, and that petitioners jointly and severally
make those individuals whole for any resultant loss
of earnings. Jd. at 21a-23a, 25a.

3. The court of appeals upheld the Board’s deci-
sion and enforced its order. Pet. App. la-8a. It
sustained the Board’s retroactive application of the
Gulton decision (id. at 2a-5a & nn.1, 2), holding that
the “considerations governing retroactivity” of judi-
cial and administrative decisions are “strikingly sim-
ilar” (id. at 4a n.1, citing Chevron Oil Co. v. Huson,
404 U.S. 97 (1971), and Retail, Wholesale and De-
partment Store Union v. NLRB, 466 F.2d 380 (D.C.
Cir. 1972) ), and that, because “[t]he question of the
extent to which functional union officials [may] be
insulated from lay-off in preference to rank and file
union members had been debated in a number of
cases with vocal dissents[,] * * * it could not * * *
be[] said that the law was settled in such a way as
to make unjust the retroactive application of Gulton
in the instant case.” Pet. App. 2a-4a (footnotes
omitted). On rehearing, the court rejected petition-
ers’ claim that the six-month statute of limitations
provision rendered the preferential seniority clause
of the February 10, 1979 agreement immune from
challenge. Jd. at 9a-14a. The court reasoned that,
“[{s]ince the Ensign Electric * * * contract grants
super seniority [sic] to union officials solely because
of their status as union officials, [it] is unlawful on
its face [and] no evidence outside the terms of the

6

contract is required to prove the unfair labor practice
* * *” Td. at 13a-14a. In these circumstances, the
court held, Section ‘10(b) [of the Act] does not ap-
ply.” Ibid.

ARGUMENT

1. Petitioners first contend (Pet. 10-15) that the
court below erred in sustaining the Board’s retro-
active application of the Gulton rule. They do not
dispute (id. at 10-11 & n.9) that other courts of
appeals have analyzed and decided the retroactivity
question exactly as the court below did. See, e.g.,
NLRB vy. Wayne Transp., A Div. of Wayne Corp.,
776 F.2d 745, 750-751 (7th Cir. 1985); NLRB v.
Niagara Machine & Tool Works, 746 F.2d 148, 151
(2d Cir. 1984); Local 900, Int'l Union of Electrical
Workers v. NLRB, 727 F.2d 1184, 1186-1189 (D.C.
Cir. 1984). Rather, petitioners contend (Pet. 11-
15) that the “balancing test’? that these courts have
employed—which weighs the statutory interest in
retroactive application against the surprise and hard-
ship that will result—is inappropriate where, as
here, the Board’s new rule is only a “permissible,”
and not a “mandatory,” construction of the Act.
This contention is not properly presented to this
Court for review and, in any event, is in error.

The contention is not open to review by this Court
because petitioners have not complied with the re-
quirement set forth in Section 10(e) of the Act for
obtaining judicial review. Section 10(e) provides
that “[n]o objection that has not been urged before
the Board * * * shall be considered by the court,

* Judge Haynsworth dissented as to the retroactivity and
limitations period issues. Pet. App. 6a-8a, 14a.

7

unless the failure or neglect to urge such objection
shall be excused because of extraordinary circum-
stances.” 29 U.S.C. 160(e). “This Court has inter-
preted [Section] 10(e) to mean that a Court of Ap-
peals is ‘without jurisdiction to consider’ an issue
not raised before the Board if the failure to do so
is not excused by extraordinary circumstances.”
EEOC v. FLRA, No. 84-1728 (Apr. 29, 1986), slip
op. 4. Indeed, the Court has held that Section 10(e)’s
requirements apply even where the Board has raised
an issue for the first time in its own decision; in
these circumstances, Section 10(e) requires that the
objecting party timely present its objections to the
Board in a petition for reconsideration or rehearing.
See Woelke & Romero Framing, Inc. v. NLRB, 456
U.S. 645, 666 (1982); Garment Workers v. Quality
Mfg. Co., 420 U.S. 276, 281 n.3 (1975). Therefore,
since petitioners have never presented to the Board
their argument against retroactive application of the
Gulton rule, the court below lacked jurisdiction to
consider that argument, and this Court does as well.*

% Although the Board briefed and argued the Section 10(e)
issue in the court below (see Br. 30-31 (filed Dec. 13, 1984) ),
the court decided the Gulton retroactivity question without
addressing the Section 10(e) issue. See Pet. App. 2a-5a.

Two other courts of appeals have explicitly determined that
Section 10(e}) does not bar courts from determining whether
the Gulton decision applies retroactively. See Local 900, Int’l
Union of Electrical Workers v. NLRB, 727 F.2d at 1191-1194;
NLRB v. Wayne Transp., a Div. of Wayne Corp., 776 F.2d at
748-750. These courts found that, because the Board may have
reason to be aware that unions will object to retroactive appli-
cation of the Gulton rule, Section 10(e)’s policies do not re-

8

Furthermore, the petition for certiorari raises for
the first time in this case the claim that a discretion-
ary construction of the Act may never be applied
retroactively. In the court below, petitioners urged
only that the surprise and hardship to Ensign Elec-
tric and the Union outweighed the statutory interest
in retroactive application of the Gulton rule; peti-
tioners did not argue below that retroactive applica-
tion of the Gulton rule was per se improper because
the Gulton rule reflects an exercise of discretionary
authority by the Board. Petitioners should not be
permitted to raise this argument for the first time
in this Court. See EEOC v. FLRA, slip op. 5; FTC
v. Grolier, Inc., 462 U.S. 19, 23 n.6 (1983); You-
akim v. Miller, 425 U.S. 231, 234-235 n.5 (1976).

In any event, there is no merit to petitioners’ argu-
ment (Pet. 11 (emphasis in original) ) that “a bal-
ancing test” for retroactive application of a new
rule is appropriate only where ‘a statute is suscep-

quire a bar to judicial review. This reasoning, however, does
not suffice to remove Section 10(e)’s jurisdictional barrier.

Moreover, Section 10(e) requires that parties present the
Board with both their objections and their reasons for main-
taining these objections. It does so in order that the Board
may “bring[] its expertise to bear on the resolution of [the]
issues” and efficiently reach fair and informed decisions.
EEOC vy. FLRA, slip op. 4. As noted in the text, this require-
ment applies even where the Board has already issued a
holding concerning a particular matter; the objecting party
must still file a petition for reconsideration or rehearing with
the Board to satisfy the restrictions that Section 10(e) places
on the jurisdiction of the courts. Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. at 666. The policies underlying Sec-
tion 10(e) remain applicable even when the Board knows that
a party is likely to object to a particular resolution of an issue;
the Board still needs to know the particular reasons for
objection.

9

tible of only one ‘correct’ construction” and “the
agency has previously construed the statute errone-
ously to declare the conduct unlawful,” and not where
“a statute is susceptible of two ‘correct’ construc-
tions, and the agency switches from one such con-
struction to the other.” Petitioners cite no case hold-
ing that an agency interpretation of a statute may
not be applied retroactively unless the interpretation
is compelled.* Rather, as the courts of appeals that
have considered the retroactivity of Gulton have uni-
formly concluded (see, in addition to the decision be-
low, NLRB v. Wayne Transp., A Div. of Wayne
Corp., 776 F.2d at 750-751; NLRB v. Niagara Ma-
chine & Tool Works, 746 F.2d at 151; Local 900,
Intl Union of Electrical Workers v. NLRB, 727 F.2d
at 1186-1189), while the nature of the agency’s deci-
sion may affect the interests to be balanced, the prob-
lem remains one of balancing the public’s legitimate
interest in having the prevailing interpretation of
the statute apply retroactively, see generally Retail,
Wholesale & Department Store Union v. NLRB, 466
F.2d at 390, against the hardship to the affected
party.

* The cases that petitioners do cite suggest, to the contrary,
that the relevant interests are to be balanced. See SEC Vv.
Chenery Corp., 332 U.S. 194, 203 (1947) (emphasis added)
(the “ill effect of the retroactive application of a new stand-
ard” must be “balanced against the mischief of producing a
result which is contrary to a statutory design or to legal and
equitable principles”) ; NLRB v. Bell Aerospace Co., 416 U.S.
267, 295 (1974) (emphasis added) (the question is whether
“the adverse consequences ensuing from such reliance are so
substantial that the Board should be precluded from reconsid-
ering the issue in an adjudicative proceeding”) ; Heckler v.
Community Health Services, 467 U.S. 51, 60 n.12 (1984)
(emphasis added) (‘‘administrative agency may not apply a
new rule retroactively when te do so would unduly intrude
upon reasonable reliance interests’’).

10

2. Petitioners next contend (Pet. 15-17) that the
bargaining unit employees waived their right to be
free of the discriminatory superseniority clause when
they ratified the collective bargaining agreement con-
taining that clause. This contention is also without
merit.

This Court has made clear that only “economic”
rights may be waived in a collective bargaining agree-
ment. See Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 705-706 (1983); NLRB v. Magnavox Co.,
415 U.S. 322, 325-326 (1974). Thus, while statutory
rights in the economic sphere (such as the right to
strike) may be waived by collective agreement (see
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279
(1956) ), statutory rights that ensure “the premise
of fair representation” are not subject to waiver.
Metropolitan Edison Co. v. NLRB, 460 U.S. at 705-
706; see also Radio Officers’ Union v. NLRB, 347
U.S. 17, 47-48 (1954). And, as petitioners concede
(Pet. 16-17), every court of appeals to consider the
issue has held that superseniority for union officials
undermines rights that ensure “the premise of fair
representation” and, accordingly, cannot be defended
on the basis of waiver. See, e.g., Local 1384, UAW
v. NLRB, 756 F.2d 482, 494 (7th Cir. 1985); NLRB
v. Local 1131, 777 F.2d 1131, 11389 (6th Cir. 1985) ;
NLRB vy. Niagara Machine & Tool Works, 746 F.2d
at 150; Local 900, Int'l Union of Electrical Workers
v. NLRB, 727 F.2d at 1190.

These courts of appeals have clearly reached the
correct conclusion. “The Board has declared super-
seniority for officers not involved in on-the-job ad-
ministration of the collective bargaining agreement
to be unlawful not because it impairs the natural
seniority rights of employees but because it impairs

11

their right to be free of discrimination that encour-
ages union activism.” Local 1384, UAW v. NLRB,
756 F.2d at 494. “Superseniority presumably encour-
ages employees to become active supporters of the
incumbent union in the hope that their efforts will
win them union office and, thereby, greater job secu-
rity.” Local 900, Int’l Union of Electrical Workers
v. NLRB, 727 F.2d at 1190. This is precisely the
kind of coercive conduct that this Court has said
cannot be justified by waiver. See NLRB v. Magna-
vox Co., 415 U.S. at 325-326; Radio Officers’ Union v.
NLRB, 347 U.S. at 47-48. Petitioners’ contention to
the contrary (Pet. 16-17) finds no support in the
case law.°

5 Petitioners’ claim (Pet. 17) that there is an “apparent
inconsistency” between the decisions of the courts of appeals
and this Court’s decision in Metropolitan Edison Co. v. NLRB,
460 U.S. 693 (1983), is wide of the mark. In Metropolitan
Edison Co., the Court held that a union may waive the right
of union officials to refrain from taking affirmative steps to
end unlawful work stoppages because that right is “closely
related to the economic decision a union makes when it waives
its members’ right to strike” (460 U.S. at 706). By its own
terms, however, the decision in Metropolitan Edison Co. does
not apply where noneconomic rights—such as the right to be
free of discrimination that encourages union membership—
are involved. See id. at 705-706; see also Local 1384, UAW v.
NLRB, 756 F.2d at 494-495; Local 900, Int’l Union of Electri-
cal Workers v. NLRB, 727 F.2d at 1190.

Petitioners’ suggestion (Pet. 17 n.17) that the Board’s
decision in Gem City Ready Miz Co., 270 N.L.R.B. 1260
(1984), is inconsistent with its decision here is also erroneous.
In Gem City, the Board held that a union, as part of the settle-
ment of an economic strike, may waive the seniority rights
of its supporters. These rights may be waived because the
employees’ interests “coincide,” and do not “conflict,” with the
union’s interests. NLRB vy. Niagara Machine & Tool Works,

12

8. Finally, petitioners argue (Pet. 17-18) that
the court below erred in holding that Section 10(b)
of the Act does not preclude the Board from holding
unlawful the enforcement of a superseniority provi-
sion that was executed and first implemented more
than six months prior to the filing of an unfair labor
practice charge. This argument is also in error.

Section 10(b) of the Act provides that “no com-
plaint shall issue based upon any unfair labor prac-
tice occurring more than six months prior to the fil-
ing of the charge * * *” (29 U.S.C. 160(b)). This
section plainly does not mean that, unless the first
instance of unlawful conduct is challenged within six
months, all later related unlawful actions are im-
munized from Board sanction. Here, the only con-
duct found unlawful—the maintenance and enforce-
ment of the superseniority clause during the March
1980 to April 1981 layoff period—occurred during
the six-month period preceding (and the seven-month
period succeeding) the filing of the unfair labor prac-
tice charge. See Pet. App. 19a-20a & n.8. The Board
did not hold unlawful either the execution of the
contract or the first exercise of the superseniority
clause. See ibid. Accordingly, since the contract was
unlawful on its face (see page 13, infra), the court
below clearly did not err in rejecting petitioners’
claim that Section 10(b) barred any finding of
liability in this case. See Local Lodge No. 1424,
IAM v. NLRB, 362 U.S. 411, 422 n.14, 423 (1960) ;
NLRB vy. Local 1131, 777 F.2d at 1189-1140.

746 F.2d at 150-151. By contrast, “[s]uperseniority [for
union officials] serves the union’s interest in encouraging em-
plovees to be ‘good,’ active union members” and directly con-
flicts with the employees’ right to be free of such encourage-
ment. Jd. at 150. Thus, Gem City is consistent with the
Board’s position here.

13

Petitioners’ claim (Pet. 18) that the decision below
conflicts with the decision of the Fifth Circuit in
NLRB y. Auto Warehousers, Inc., 571 F.2d 860
(1978), is wrong. In Auto Warehousers, Inc., the
contract clause at issue was not unlawful on its face;
although the clause purported to grant preferential
seniority to stewards, the preference was not auto-
matic, but rather depended upon a union’s request
and the employer’s approval. These actions, which
constituted the unlawful activity, occurred more than
six months before the charge. 571 F.2d at 862-864.
By contrast, the contract clause at issue here ex-
pressly discriminated against employees for “union
related” reasons; under Gulton, it was unlawful on
its face and constituted a continuing violation of the
Act.* For that reason, the court below (see Pet. App.
13a) correctly found that the Auto Warehousers, Inc.
decision is distinguishable.’

* Contrary to petitioners’ suggestion (Pet. 18), the prefer-
ential seniority clause is in fact “unlawful on its face.” The
clause “grants super seniority [sic] to union officials solely
because of their status as union officials.” Pet. App. 12a-13a.
No inquiry into the union officers’ duties is necessary in order
to find this clause unlawful. Accord NLRB v. Local 1131,
777 F.2d at 1139, 1140. The clause is overinclusive on its
face and thus infringes upon employees’ right to refrain
from union activities. See International Harvester Co., 268
N.L.R.B. 966 (1984) ; United States Steel Corp., 268 N.L.R.B.
1187 (1984). Accordingly, it is per se unlawful under Gulton.
Pet. App. 12a-14a; accord, NLRB v. Local 1131, 777 F.2d at
1140 (reaching the same conclusion and distinguishing Auto
Warehousers, Inc. on this basis) .

7 The court also pointed out (Pet. App. 13a) that prefer-
ential seniority clauses were only presumptively unlawful
when the Auto Warehousers, Inc. case was decided. Under
Gulton, of course, such clauses are per se unlawful whenever

14

CONCLUSION

The petition for a writ of certiorari should be
denied.

| Respectfully submitted.

CHARLES FRIED
Solicitor General
ROSEMARY M. COLLYER
General Counsel

JOHN E. HIGGINS, JR.
Deputy General Counsel

ROBERT E. ALLEN
Associate General Counsel

NORTON J. COME
Deputy Associate General Counsel

LINDA SHER
Assistant General Counsel

JOHN BURGOYNE
Attorney
National Labor Relations Board

OCTOBER 1986

they do not, by their own terms, make the grant of preferen-
tial seniority dependent on the union officers’ duties. See |
NLRB v. Local 1131, 777 F.2d at 1140.

wv U. S. GOVERNMENT PRINTING OFFICE; 1986 181483 40058

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2403%3A2. Public record. Not legal advice.