Opposition Brief — Molded Acoustical Products, Inc. v. National Labor Relations Board

No. 87-186 OCT 2 = 4937

Jn the Supreme Court of the Gm Re _

OCTOBER TERM, 1987

MOLDED ACOUSTICAL PRODUCTS, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD AND LOCAL 773,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

W AREHOUSEMEN AND HELPERS OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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

CARMEL P. EBB

Altorney

National Labor Reiations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the National Labor Relations Board properly

determined that the union’s pre-election offer to waive ini-

tiation fees did not interfere with the election process on

the ground that the offer extended to all employees, not

just those employees who voted for the union.

(1)

TABLE OF CONTENTS

Page

Ne a Nt aga ak ee aa ae on wen l

ee ee ae aah yee eek oaeas l

Nas aay ort 2

eR as aa ge okk a 6 5 AAAS Oo aes 5

Ne ee A we oie we ie 11

TABLE OF AUTHORITIES

Cases:

Altman Camera Co. v. NLRB, 511 F.2d 319 (7th Cir.

ee A ee sb se wea ace 6

Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978) ...... 7

California State Automobile Ass’n, 214 N.L.R.B. 223

IR ee Creole Che hia ess lawe ¢ gs bh bois ba a4 4» 6 8, 10

Coleman Co., 212 N.L.R.B. 927 (1974) ................ 8

Deming Division, Crane Co., 225 N.L.R.B. 657 (1976) ... 8

Inland Shoe Mfg. Co., 211 N.L.R.B. 724 (1974) ........ &

NLRB vy. Aaron Bros. Corp., 563 F.2d 409 (9th Cir.

I re te se eu h cle dae web wus 6

NLRB vy. Aladdin Hotel Corp., 584 F.2d 891 (9th Cir.

ee a ta ee gue ce bo ke bd eka Wédo eee 8

NLRB v. Dunkirk Motor Inn, Inc., 524 F.2d 663 (2d Cir.

DIRS il a as Pe eR PP ae ae a 6

NLRB v. Johnson & Hardin Co., 554 F.2d 275 (6th Cir.

RR a a ew kes 8

NLRB v. L.D. McFarland Co., 572 F.2d 256 (9th Cir.),

ee RO | 8

NLRB v. S & S Product Engineering Services, Inc., 513

ee a kwkeereseseenuee cane 6

NLRB vy. Savair Manufacturing Co., 414 U.S. 270

are a a Suey a nah ike 2, 3, 4, 5, 6, 8, 9, 10

NLRB vy. Semco Printing Center, Inc., 721 F.2d 886 (2d

St ae a0 ee ein lng aca 8

NLRB vy. Stone & Thomas, 502 F.2d 957 (4th Cir. 1974) .. 6

NLRB v. Wabash Transformer Corp., 509 F.2d 647 (8th

Cir), cert. denied, 423 U.S. 827 (1975) .......0....... 6

Thrift Drug v. NLRB, 521 F.2d 243 (Sth Cir. 1975), cert.

ee iba Cwaaueas 6

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) .. 6-7

(111)

Statutes and regulation:

IV

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

SE MP ee SUED oc did ened dewnecenns

Fe LER So. re

29 C.F.R. 101.19(a)(1)

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-186

MOLDED ACOUSTICAL PRODUCTS, INC., PETITIONER

V.

NATIONAL LABOR RELATIONS BOARD AND LOCAL 773,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

W AREHOUSEMEN AND HELPERS OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-21a)

is reported at 815 F.2d 934. The decision and order of the

National Labor Relations Board (Pet. App. 31a-32a) and

the decision of the administrative law judge are reported at

280 N.L.R.B. No. 163. The Board’s prior decision and cer-

tification of representative (Pet. App. 22a-26a) are

reported at 273 N.L.R.B. 156. The Regional Director’s

report and recommendation on objections to election (Pet.

App. 27a-30a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 8, 1987. A petition for rehearing was denied on May

(1)

2

4, 1987 (Pet. App. 40a-41la).' The petition for a writ of

certiorari was filed on July 31, 1987. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In November 1983, petitioner and Local 773, Inter-

national Brotherhood of Teamsters, Warehousemen and

Helpers of America (the Union), agreed that a union

representation election would be held among a stipulated

group of petitioner’s employees (Pet. App. 3a). Eleven

days before the election, the Union sent a letter to the

employees in the stipulated unit urging them to vote for

union representation. A postscript to the letter stated (id.

at 4a):

All employees in the bargaining unit will not have to

pay the $50.00 Initiation Fee if they vote for the

Teamsters to represent them. Also dues will not be

payable until there is a signed contract{[.]

The election was held on December 30, 1983; 60 votes were

cast in favor of Union representation and 55 against

(ibid.).

Invoking this Court’s decision in NLRB vy. Savair

Manufacturing Co., 414 U.S. 270 (1973), petitioner ob-

jected to the election on the ground that the postscript in

the Union’s letter improperly induced the employees to

vote for union representation. The regional director of the

National Labor Relations Board found that petitioner’s

Objection lacked merit. See Pet. App. 28a-29a. The

regional director acknowledged that this Court held in

Savair Manufacturing that “a union’s announcement that

it would waive initiation fees for employees who signed

recognition slips prior to the election” constitutes im-

' On July 8, 1987, Justice Brennan denied petitioner’s application to

this Court for recall and stay of the mandate of the court of appeals

(Pet. App. 52a).

proper interference with the election (Pet. App. 28a-29a).

He concluded, however (id. at 29a), that while the Union’s

letter

may have been inartfully drafted, it is sufficiently

clear that the statement means that the Union would

waive payment of its initiation fee for all bargaining

unit employees, without distinction, if the Union won

the Board election and became their collective

bargaining representative. There was no requirement

that employees join the Union or take other action

before the election as a condition of the Union’s offer

to waive the initiation fee.

Because “the waiver of the initiation fee was offered to all

employees unconditionally,” the regional director con-

cluded that the Union did not violate the Savair Manufac-

turing rule (Pet. App. 29a).

Petitioner filed exceptions to the regional director’s

determination, but the Board upheld that determination

by a divided vote, certifying the Union as the exclusive

representative of petitioner’s bargaining unit employees.

See Pet. App. 22a-26a. The Board “adopted the Regional

Director’s findings and recommendations” (id. at 22a

(footnote omitted)). Chairman Dotson added that peti-

tioner’s interpretation of the Union’s statement —that the

initiation fee waiver extended only to employees who

voted for the Union—was “unreasonable in light of the

Board’s fully publicized secret ballot procedure” (ibid.).?

2 The election notices that the Board requires to be posted at a place

of employment (see 29 C.F.R. 101.19(a){1)) state: “The election will be

by SECRET ballot under the supervision of the Regional Director of

National Labor Relations Board.” The notice further advises the

voter: “Mark your ballot in secret in the voting booth provided; DO

NOT SIGN YOUR BALLOT.” “Fold the ballot before leaving the

voting booth, then personally deposit it in the ballot box under the

supervision of an agent of the Board.” See Form NLRB-707.

4

Member Hunter dissented. He concluded that the

Union’s statement was ambiguous because it was “equally

susceptible of the interpretation that the offer to waive the

initiation fee was conditioned on the individual employee’s

vote in the election” (Pet. App. 24a-25a). Member Hunter

would have set aside the results of the election and ordered

a second election.

Following the certification of the Union, petitioner

refused to bargain with the Union. The Board found that

petitioner’s refusal to bargain violated Section 8(a)({1) and

(5S) of the National Labor Relations Act, 29 U.S.C.

158(a)(1) and (5), and issued an order directing petitioner

to bargain with the Union upon request. Pet. App. Sa, 6a.

2. The court of appeals, by a divided vote, upheld the

Board’s findings and enforced the bargaining order. See

Pet. App. 3a-21a. The court stated that this Court’s deci-

sion in Savair Manufacturing established the rule that a

union may not offer to waive initiation fees only for those

employees who sign union recognition slips prior to a

representation election. However, “a union has a

legitimate interest in waiving its new member initiation

fee, and * * * it may do so as long as the waiver applies

‘not only to those who have signed up with the union

before an election but also to those who join after the elec-

tion.’ ” Id. at 7a-8a, quoting Savair Manufacturing, 414

U.S. at 274 n.4. The court of appeals held that the Board

reasonably concluded that the Union’s offer here fell in the

permissible category. Pet. App. 12a.

The court of appeals acknowledged the Board rule that

“ambiguities” in union literature are to be construed

against the union (Pet. App. 9a-10a n.3). It concluded that

the Union’s statement here was not ambiguous. The court

stated that “the only plausible interpretation of the

Union’s pre-election offer to waive initiation fees is that it

was intended to apply to all employees in the bargaining

unit.” Jd. at lla; see also id. at 10a n.3. The court ex-

plained that “[b]ecause the ballots in a Union election are

kept secret even after the vote is tallied, the Union will

never be able to determine which employees actually voted

for Union representation” (id. at 10a (footnote omitted)).

In these circumstances, the court said “it would be highly

illogical” to interpret the Union’s pre-election letter as a

proposa! “to deny certain employees the promised fee

waiver because they did not vote for union representation”

(id. at lla). The court rejected the argument that an

employee might misinterpret the scope of the initiation fee

waiver: “we do not choose to ascribe the level of ignorance

to employees that acceptance of this argument would

necessarily require. No reasonable employee would view a

vote for union representation in a secret ballot election as

the quid pro quo for a waiver of initiation fees” (id. at

12a).

Judge Garth dissented (see Pet. App. 16a-21a). In his

view, the Union’s statement could reasonably be inter-

preted as limiting the fee waiver to those employees who

voted for the Union. Invoking the Board’s rule that am-

biguous statements should be construed against the

maker, he interpreted the Union’s statement here as an im-

permissible offer to waive initiation fees only for Union

supporters. ?

ARGUMENT

The decision of the court below is correct and does not

conflict with any decision of this Court or another court of

appeals. Review by this Court is not warranted.

1. In National Labor Relations Board v. Savair

Manufacturing Co., 414 U.S. 270 (1973), a union had,

prior to a representation election, announced a selective

> The court of appeals denied petitioner’s motion for a stay of man-

date pending the filing of a petition for a writ of certiorari (Pet. App.

§0a-5la); Justice Brennan subsequently denied petitioner’s application

for a recall and stay of mandate (/d. at 52a).

6

waiver Of its initiation fee for employees who signed union

recognition slips before the election; those employees who

did not sign such slips would not get the benefit of the fee

waiver. This Court held that the union’s selective waiver of

its initiation fee impermissibly interfered with the

employees’ right to choose freely whether to have union

representation. The Court said, however, that a union has

a legitimate interest in waiving its initiation fee when the

waiver is “available not only to those who have signed up

with the union before an election but also to those who

join after the election” (414 U.S. at 274 n.4). The courts of

appeals have since uniformly held that offers to waive fees

for all employees currently in the work force, not condi-

tioned on whether the particular employee supported the

union, do not interfere with employee free choice in repre-

sentation elections and therefore are not improper in-

ducements under Savair Manufacturing.‘

In this case, both the Board and the court of appeals

followed these controlling principles. See Pet. App.

7a-lla, 22a, 29a. The Board, upheld by the court of ap-

peals, found that the Union’s statement here constituted a

permissible promise to waive initiation fees for all

members of the bargaining unit and could not be read by a

reasonable employee as an impermissible promise to waive

fees selectively for those employees who voted for the

Union. Petitioner’s challenge to that conclusion raises only

a factual issue that does not warrant review by this Court.

4 See, e.g., NLRB v. Dunkirk Motor Inn, Inc., 524 F.2d 663, 665

(2d Cir. 1975); NLRB v. Stone & Thomas, 502 F.2d 957, 958 (4th Cir.

1974); Thrift Drug v. NLRB, 521 F.2d 243, 244 (Sth Cir. 1975), cert.

denied, 425 U.S. 911 (1976); NLRB v. S & S Product Engineering

Services, Inc., 513 F.2d 1311, 1312-1313 (6th Cir. 1975); Altman

Camera Co. v. NLRB, 511 F.2d 319, 322 (7th Cir. 1975); NLRB v.

Wabash Transformer Corp., 509 F.2d 647, 649-650 (8th Cir.), cert.

denied, 423 U.S. 827 (1975); NLRB v. Aaron Bros. Corp., 563 F.2d

409, 412-413 (9th Cir. 1977).

7

Universal Camera Corp. v. NLRB, 340 U.S. 474, 491

(1951); see Beth Israel Hospital v. NLRB, 437 U.S. 483,

507 (1978). Moreover, there is substantial evidence in sup-

port of the Board’s conclusion that the only reasonable in-

terpretation of the waiver offer under the circumstances

was that the waiver extended to all bargaining unit

employees.

The challenged sentence of the Union’s letter stated that

“fa}ll employees in the bargaining unit will not have to pay

the $50.00 Initiation Fee if they vote for the Teamsters to

represent them” (Pet. App. 4a). The regional director con-

cluded (id. at 29a) that this statement simply advised

employees that, if the Union won the election, all current

employees would be excused from payment of the Union’s

initiation fee: the sentence identifies a benefit — relief from

the initiation fee—and states that it would be enjoyed by

“all” unit employees. The regional director found it “suffi-

ciently clear” (ibid.) that the phrase “if they vote for the

Teamsters to represent them” merely identified the only

circumstance in which the question of a fee would arise —

if the employees selected the Union. This interpretation is

supported by the final sentence of the postscript (Pet.

App. 4a)—“[a]lso dues will not be payabie until there is a

signed contract”— which says nothing about the way in-

dividual unit members may choose to vote. Rather, it

assures employees that, if the Union were voted in,

monthly dues would be postponed until the Union ob-

tained its first contract.

2. Petitioner seeks to cloak its challenge to this essen-

tially factual determination in legal terms, but its claims

that the Board and the court applied erroneous legal

standards are meritless.

a. Petitioner repeatedly argues (Pet. 14, 22-26) that

the Board and the court of appeals ignored the rule that,

where a waiver offer “is ambiguous and subject to a

reasonable interpretation by the employees that they can

avoid initiation fees by joining the Union prior to the elec-

8

tion,” it is impermissible under the Savair Manufacturing

rule. See, e.g., California State Automobile Ass’n, 214

N.L.R.B. 223, 224 (1974). But the court of appeals

specifically cited this rule (Pet. App. 9a) and went on to

conclude that the waiver offer was not ambiguous because

the Board’s interpretation of tle offer was the only

“plausible” one (Pet. App. 10a n.3, lla). The regional

director closely analyzed the terms of the offer and found

it “sufficiently clear” that the offer had been extended to

all employees (id. at 29a). Accordingly, there is no basis

for petitioner’s assertions that the decisions below con-

strue an ambiguous offer in the union’s favor.

> Petitioner contends (Pet. 23-24) that the dissenting opinions beiow

show that the offer was ambiguous. But those opinions show only that

one member of each tribunal had a different view regarding the mean-

ing of the offer. Two members of the Board and two judges of the

court of appeals concluded that the offer was not ambiguous.

Petitioner also cites (Pet. 22-23) a variety of other decisions in an ef-

fort to establish ambiguity here. But there is a clear difference between

the limited waiver offer to “charter members” in Coleman Co., 212

N.L.R.B. 927, 927-929 (1974), and Inland Shoe Mfg. Co., 211

N.L.R.B. 724 (1974), and the offer made to “all” employees here.

While “charter members” may be understood to refer to those joining

the union prior to the election because it connotes early membership,

the offer here did not distinguish among the employees on any basis

ascertainable by the union or its supporters. See also NLRB v. L.D.

McFarland Co., 572 F.2d 256, 259 (9th Cir.), cert. denied, 439 U.S.

911 (1978) (rejecting the view that use of phrase “any member” rather

than any employee was fatally ambiguous). In Deming Division,

Crane Co., 225 N.L.R.B. 657, 659 (1976), the union waiver offer was

conditioned on pre-election support: it was expressly limited to

“anyone joining now during this campaign.” Similarly, the waiver of-

fers in NLRB v. Aladdin Hotel Corp., 584 F.2d 891, 893 (9th Cir.

1978), and NLRB v. Johnson & Hardin Co., 554 F.2d 275, 276 (6th

Cir. 1977), were keyed to a decision to join the union during the

organizational campaign. In NLRB v. Semco Printing Center, Inc.,

721 F.2d 886, 889-890 (2d Cir. 1983), the court of appeals upheld the

Board’s finding, based on credibility determinations, that the union

9

b. Petitioner’s contention (Pet. 14-15) that “the Board

and the Third Circuit in effect held that * * * a pre-

election promise to waive initiation fees * * * can never

amount to an unlawful inducement because, by virtue of

the Board’s secret ballot election process, no employee

would believe that the offer was an inducement to vote for

representation[,]” also misconstrues the decisions of the

Board and the court of appeals. Neither the Board nor the

court stated that a waiver offer is always permissible. They

simply recognized that the secret ballot process was a rele-

vant consideration in determining whether the Union’s of-

fer was ambiguous. See Pet. App. 10a-lla, 22a n.1. No

employee would reasonably believe that the Union’s offer

was limited to employees who voted for the Union, the

court concluded, because the employee would understand

that the Union had no way of ascertaining how the

employee in fact had voted.°®

representative had not limited the waiver offer to employees who

joined before the election, but extended it, as here, to all employees

working in the bargaining unit at the time any collective agreement

was signed.

6 Petitioner invokes (Pet. 16-19) the language and rationale of this

Court’s decision in Savair Manufacturing, asserting that the Board’s

decision here “ignores the realities of the situation” (414 U.S. at 277).

The Court in Savair Manufacturing described the relevant “realities”

as the fact that “[w]hatever his true intentions, an employee who signs

a recognition slip prior to an election is indicating to other workers

that he supports the union{,] * * * [that] [h]is outward manifestation

of support [may] serve as a useful campaign tool in the union’s hands

{and that] while it is correct that the employee who signs a recognition

slip is not legally bound to vote for the union and has not promised to

do so in any formal sense, certainly there may be some employees who

would feel obliged to carry through on their stated intention to sup-

port the union” (id. at 227-278).

in this case, no employee was asked to make any pre-election

manifestation of support that might influence his own vote or the vote

of other employees. In addition, the Board, affirmed by the court of

appeals, found that no reasonable employee would understand that a

10

c. Finally, petitioner errs in suggesting (Pet. 19-22)

that the court of appeals’ decision turns upon the court’s

assessment of the Union’s intent in making the waiver of-

fer. In California State Automobile Ass’n, 214 N.L.R.B.

at 224, the Board made clear that the proper test in inter-

preting a waiver offer is the perception of a reasonable

employee, not what the employees actually understood the

Union to mean or what the Union intended. The court of

appeals applied that test in this case. The court discussed

the Union’s intent in the context of assessing what the

employees reasonably could have understood the offer to

mean. In that context, the court stated that the Union

could not have intended to key its offer to the employees’

secret ballot vote because it would never be able to ascer-

tain with certainty which employees had voted for union

representation. The court did not hold that, irrespective of

the objective impact on the employees, the Union’s subjec-

tive intent governs. Indeed, the court went on to find that

no reasonable employee could interpret the Union’s waiver

offer as a limited waiver conditioned on an employee’s

vote in the election. See Pet. App. 12a.’

waiver of initiation fee depended on how he voted in the secret ballot

election. The decisions below are therefore entirely consistent with the

“realities” recognized in Savair Manufacturing, as well as the rationale

of that decision. Petitioner suggests (Pet. 17-18, 19) that an employee

might believe that the union could ascertain his vote. In view of the

clear notices regarding ballot secrecy (see note 2, supra), that specula-

tion is wholly unfounded.

7? Petitioner’s suggestion (Pet. 26-28) that the court of appeals erred

in not taking into account the closeness of the election result is equally

without merit. The Court in Savair Manufacturing stated (414 U.S. at

271, 281) that because of the closeness of the election, the imper-

missible waiver there may well have actually influenced the results of

the election. The Court did not hold that the closeness of the election

should be a factor in determining whether an offer was impermissibly

based on pre-election support under the Savair rule. The appropriate

1]

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

CARMEL P. EBB

Attorney

National Labor Relations Board

OCTOBER 1987

inquiry is an examination of the union’s offer and other relevant cir-

cumstances to determine how a reasonable employee would interpret

that offer.

US GOVERNMENT PRINTING OFFICE 19387— 1861483 60055