Opposition Brief — Chelsea Laboratories, Inc. v. National Labor Relations Board

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Jn the Supreme Court of the Anited States —

OCTOBER TERM, 1987

No, 87-668

CHELSEA LABORATORIES, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND 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 ha

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

CARMEL P. EBB

Attorney

National Labor Relations Board

Washington, D.C. 20570 on

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QUESTIONS PRESENTED

1. Whether petitioner had timely notice of the General

Counsel’s theory of unfair labor practice liability and a

full and fair opportunity to litigate the charge.

2. Whether substantial evidence supports the National

Labor Relations Board’s finding that petitioner violated

Section 8(a)(1) of the National Labor Relations Act, 29

U.S.C. 158(a)(1), by discharging an employee for engag-

ing in protected concerted activity.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Drug Package, Inc. v. NLRB, 570 F.2d 1340 (8th Cir.

Ne en ee a dus sade sane

Emporium Capwell Co. v. Western Addition Community

RO pare ei ewe xs

J.C. Penney Co. v. NLRB, 384 F.2d 479 (10th Cir.

EE RIES Se a a

NLRB vy. Blake Construction Co., 663 F.2d 272 (D.C.

TR ST a

NLRB vy. Coca-Cola Bottling Co., 811 F.2d 82 (2d Cir.

a ua beh ea wee eves

NLRB vy. Complas Industries, Inc., 714 F.2d 729 (7th

Ce a sk ck aearace’ was.

NLRB vy. Homemaker Shops, 724 F.2d 535 (6th Cir.

et eS ui Abd bwieene en as

NLRB vy. Intl Ass’n of Bridge Workers, Local 433, 600

F.2d 770 (9th Cir. 1979), cert. denied, 445 U.S. 915

eg hacia Qos ue anew «a's ws

NLRB vy. Mackay Radio & Telegraph Co., 304 U.S. 333

SE et rere eee

NLRB vy. Pepsi-Cola Bottling Co., 613 F.2d 267 (10th

a ae eu ae Kd e AM d5 6a! ¥ 44 0's

NLRB vy. Quality C.A.T.V., Inc., 824 F.2d 542 (7th Cir.

a wine wea eke ae ee

NLRB vy. Sunnyland Packing Co., 557 F.2d 1157 (Sth

hae aeWsd ac cas esis

Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st

OS aa ree ava © ee ws

Stokely-Van Camp, Inc. v. NLRB, 722 F.2d 1324 (7th

ee ten Kwek e Vedas

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

(lil)

Statutes: Page

National Labor Relations Act, 29 U.S.C. (& Supp. III)

151 ef seq.:

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BEST AVAILABLE

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-668

CHELSEA LABORATORIES, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-10a)

is reported at 825 F.2d 680. The decision and order of the

National Labor Relations Board (Pet. App. | la-16a), in-

cluding the decision and recommendation of the ad-

ministrative law judge (Pet. App. 17a-26a), are reported at

282 N.L.R.B. No. 74.

JURISDICTION

The judgment of the court of appeals was entered on

August 3, 1987. The petition for a writ of certiorari was

filed on October 23, 1987. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. For anumber of years, and until March 12, 1985,

Local 918 of the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America

(1)

(Local 918), was the certified bargaining representative of

petitioner’s employees (Pet. App. 5a; C.A. App. 90). In

October 1984, because of employee dissatisfaction with

Local 918, Jose Velez, the shop steward, filed a decer-

tification petition with the National Labor Relations

Board (Pet. App. 5a). On November 30, 1984, the Board

conducted a decertification election in which Kismath

~Sooknanan, a member of Local 918’s employee

negotiating committee, served as Valez’s observer (ibid.).

A majority of petitioner’s employees voted against con-

tinued representation by Local 918 (ibid.).

Local 918 filed timely objections to the election (Pet.

App. 12a, 18a). While these objections were pending, peti-

tioner’s employees received a letter from the president of

petitioner’s parent corporation thanking them for reject-

ing union representation, stating that they were now

covered by petitioner’s insurance plans, and indicating

that, “[iJn the near future, you will be getting more specific

information as to what your wage increase will be” (id. at

12a, 19a). Contemporaneously, Velez and Sooknanan

learned that petitioner needed employees to work overtime

and offered to attempt to persuade employees to do so (id.

at 18a-19a). At the same time, however, they asked peti-

tioner’s vice-president whether petitioner would recognize

Local 815, another Teamsters-affiliated local, after the

decertification of Local 918 became final (id. at 19a). The

vice-president did not know the answer to their question

but promised to bring the matter to the attention of peti-

tioner’s board of directors (ibid.). Sooknanan and Velez

then met with the employees, asked them to do the needed

overtime work, and told them to await the decertification

of Local 918, at which time Local 815 could begin

representing them (ibid.). The employees agreed to do so

(ibid.).

Subsequently, in December 1984, representatives from

the employee negotiating committee, including

BEST AVAILABL

Sooknanan, spoke with petitioner’s president, Nat Ge-

trajdman, about their request that petitioner recognize

Local 815 after Local 918 was finally decertified (Pet.

App. 13a, 19a). During this conversation, Sooknanan also

indicated that the employees were dissatisfied because they

had not received the wage increase that they had been

promised (id. at 13a). Getrajdman indicated that he could

not provide any answers to the employees’ questions, but

promised that there would be a “dialogue” before any deci-

sions were made (ibid.). Velez and Sooknanan then met

with the employees, reported the contents of their conver-

sation with Getrajdman, and told the employees to have

patience (ibid.).

In early February 1985, a few employees told

Sooknanan that they had heard that Local 918’s objections

had ‘been overruled by the Board (Pet. App. 20a).

Sooknanan asked Getrajdman whether the objections had

been overruled, but Getrajdman indicated that he did not

have an answer (ibid.). A few days later, a supervisor told

several employees that the objections had in fact been

overruled, that Local 918 had filed an appeal, and that

there would be no raise until Local 918’s appeal had finally

been decided (ibid.). Nevertheless, on February 19, 1985,

petitioner’s employees received a letter from petitioner’s

parent corporation indicating that they would receive a

wage increase, effective February 22, 1985, retroactive to

December 1984, and that they would become participants

in petitioner’s profit sharing plan (ibid.). The letter also

thanked the employees for having decided “to join the

over eighty (80%) percent of the workforce in the United

States that is non-union” (ibid.). In light of petitioner’s

earlier representations about wage increases and union

representation, the letter caused considerable confusion

among petitioner’s employees (ibid.).

Accordingly, Sooknanan and Velez went to Getrajd-

man’s office to inquire about the letter’s meaning (Pet.

BEST AVAIL

App. 20a). Velez asked whether Getrajdman knew about

the letter, and Getrajdman said that he did (ibid.).

Sooknanan complained that Getrajdman had promised to

hold “a dialogue” before any decision about union

representation was made, but Getrajdman answered that,

“{w]hatever the letter says, that is what is going to be” (id.

at 20a-21a). Sooknanan asked, “what are you trying to do,

push things down people’s throats?” (id. at 21a). Getrajd-

man responded that he did not want to speak to anyone

from the employee negotiating committee, to which

Sooknanan objected that Getrajdman should have taken

that position in the first place (ibid.). By this time, both

men had raised their voices and Getrajdman said, “you

cannot speak to me that way, I’m the President” (ibid.).

Getrajdman then fired Sooknanan and ordered him out of

the office (id. at 6a).

2. Sooknanan filed an unfair labor practice charge

with the Board) and the General Counsel issued a com-

plaint alleging that Sooknanan’s discharge violated Sec-

tion 8(a)(1) of the National Labor Relations Act, 29

U.S.C. 158(a)(1) (Pet. App. 14a). The complaint alleged

that Sooknanan had been discharged for protesting peti-

tioner’s grant of a wage increase while objections to the

decertification election were pending, and for engaging in

“other concerted activity” (id. at 14a; C4&&\. App. 90, 91).

a. After a hearing, an administrative law judge (ALJ)

agreed that petitioner had violated Section 8(a)(1) by

discharging Sooknanan (Pet. App. Ila, 24a). The ALJ

found that “Sooknanan believed that the granting of a

wage increase showed that everything was ‘final’[,] * * *

that ‘the company did not recognize anybody,’ ” and that

this “constituted a breach of the commitment to talk to the

people before reaching a decision on recognizing Local

815” (id. at 21a). The ALJ further found that, “[m]anifest-

ly, Sooknanan was engaging in concerted activities when

he asked Getrajdman in the presence of shop steward

Velez and on behalf of other employees about the seeming

contradiction between [petitioner’s] letter and Getrajd-

man’s earlier promises” (id. at 23a). And the ALJ finally

found (ibid.) that Sooknanan had been “fired * * * for

continuing to raise the issue,” that “Sooknanan did not

lose the protection of the Act by raising his voice,” that

“Getrajdman also raised his voice,” that, “in contrast to

the cases cited by [petitioner], Sooknanan did not use

obscenity or violence,” and that petitioner’s records in-

dicated that “employees who push their supervisors in

anger are merely warned and not suspended or

discharged.”

The ALJ then rejected petitioner’s claim that it had not

been given notice by the complaint of the General Counsel’s

theory of violation (Pet. App. 23a; C.A. App. 82, 154).

The ALJ found that, “[{a]lthough the complaint condenses

the transaction by describing it as a ‘protest’ about the an-

nouncement of a wage increase, it was manifest throughout

the instant hearing what Sooknanan’s complaint had been,”

to wit, that Getrajdman “had broken his promise to speak

to the employees before any decision was reached about

recognizing a union” (Pet. App. 23a).

Finally, the ALJ rejected (Pet. App. 23a-24a) peti-

tioner’s contention that, because Sooknanan was fired for

insisting that petitioner bargain with one union while

another was the certified representative of the employees,

his conduct was unprotected under this Court’s decision in

Emporium Capwell Co. v. Western Addition Community

Org., 420 U.S. 50 (1975). In the ALJ’s view, petitioner’s

contention simply “d[id] not fit the facts” of the case (Pet.

App. 24a). She said that “Sooknanan was not demanding

bargaining over the wage increase nor was Sooknanan

demanding that [petitioner] bargain with Local 815”;

“{rjather, he was asking Getrajdman about his promise to

discuss the issue of recognition with the employees before

any decision was made” (ibid.). She concluded that

BEST AVAILA

“lt]here is no way this inquiry as to [petitioner’s] future ac-

tions can be construed as a present demand for

bargaining” (ibid.).

b. The Board adopted the decision and recommenda-

tion of the ALJ (Pet. App. lla-16a). It determined that

the facts “which provide the basis for the judge’s finding

that Sooknanan was engaged in protected concerted activi-

ty at the time he was discharged[] were fully litigated at the

hearing” (id. at 14a) and that petitioner “does

not * * * claim that it was precluded from presenting ex-

culpatory evidence, nor does it argue that it would have

altered the conduct of its case at the hearing in any par-

ticular” (id. at 15a). Indeed, the Board noted, petitioner’s

brief to the Board addressed “the law and the sufficiency

of the facts * * * in the record with respect to the pro-

tected concerted nature of Sooknanan’s protest of the

[petitioner’s] breach of promise regarding the dialogue”

(ibid.). Accordingly, “as [it] f[ouJnd that the theory was

encompassed in the complaint and that all the operative

facts underlying the [Section] 8(a)(1) finding [were] pre-

sent in the record,” the Board rejected petitioner’s “argu-

ment that variance provides a b. .s for [reversal] in this

case” (ibid.).

3. The court of appeals upheld the Board’s findings

and enforced its order (Pet. App. 3a-10a). Initially, the

court rejected petitioner’s claim that the Board’s decision

“was based on a theory not contained in the complaint”

(id. at 7a), reasoning that petitioner “addressed the legal

issues [raised by the “dialogue” theory] as early as its first

answer to the NLRB’s complaint,” and that petitioner “did

not object to the ALJ’s factual findings on review before

the Board” and thus could not do so for the first time on

appeal (id. at 7a-8a).' It then found substantial evidence to

i The court also rejected (Pet. App. 7a) petitioner’s claim that,

given timely notice, it would have been able to challenge the factual

predicate of the “dialogue” theory —that is, that the employer actually

support the Board’s finding (a) that Sooknanan’s conduct

did not merit discharge for rudeness or insubordination

(id. at 8a) and (b) that Sooknanan was engaging in “con-

certed activity” when he met with Getrajdman (ibid.).

Finally, it rejected petitioner’s argument “that

Sooknanan’s activity, even if concerted, was not protected

because Sooknanan’s request for a dialogue was an at-

tempt to undermine the existing collective bargaining

representative” (id. at 9a), emphasizing that Sooknanan

“was merely insisting that the employer adhere to its prom-

ise to talk with the employees about a new local, after the

prior local’s decertification process was complete” (id. at

10a), and that Sooknanan’s activities were not “inconsis-

tent with the existing grievance mechanism” (ibid.).

ARGUMENT

The decision below is correct. It does not conflict with

any decision of this Court or any other court of appeals.

Accordingly, review by this Court is not warranted.

1. Petitioner initially errs in suggesting (Pet. 6-8) that

there is a conflict among the circuits as to whether the

Board may properly find a violation on a theory that was

not expressly pleaded in the complaint. It has long been

settled that a failure to plead a theory of violation express-

ly in the complaint does not preclude the Board from find-

ing such a violation where the respondent has had ade-

quate notice of the charge and an opportunity to litigate

the issue fully and fairly. See NLRB v. Mackay Radio &

Telegraph Co., 304 U.S. 333, 349-350 (1938); NLRB v.

Coca-Cola Bottling Co., 811 F.2d 82, 87 (2d Cir. 1987);

NLRB vy. Int'l Ass’n of Bridge Workers, Local 433, 600

F.2d 770, 775 (9th Cir. 1979), cert. denied, 445 U.S. 915

(1980); NLRB v. Sunnyland Packing Co., 557 F.2d 1157,

had promised a dialogue. The court observed (/bid.) that Sooknanan’s

belief in the promised dialogue need not have been correct for his in-

quiry to be concerted and protected under the Act.

1161 (Sth Cir. 1977); J.C. Penney Co. v. NLRB, 384 F.2d

479, 482-483 (10th Cir. 1967). The decisions of the other

courts of appeals that petitioner cites are in accord; they

simply represent instances in which the responding party

did not have either actual notice of the claim or a full and

fair opportunity to litigate the claim at the hearing. See

NLRB v. Quality C.A.T.V., Inc., 824 F.2d 542, 545, 547

(7th Cir. 1987); NLRB v. Complas Industries, Inc., 714

F.2d 729, 734 (7th Cir. 1983); Soule Glass & Glazing Co.

v. NLRB, 652 F.2d 1055, 1102-1106 (1st Cir. 1981); NLRB

v. Homemaker Shops, 724 F.2d 535, 542-544 (6th Cir.

1984); Stokely-Van Camp, Inc. v. NLRB, 722 F.2d 1324,

1331 n.11 (7th Cir. 1983); NLRB v. Blake Construction

Co., 663 F.2d 272, 279-282 (D.C. Cir. 1981); NLRB v.

Pepsi-Cola Bottling Co., 613 F.2d 267, 273-274 (10th Cir.

1980); Drug Package, Inc. v. NLRB, 570 F.2d 1340, 1345

(8th Cir. 1978).2 In this case, of course, petitioner

2 Thus, in Quality C.A.T.V., Inc., 824 F.2d at 547, the court found

that the issue of protest because of discomfort, as opposed to unsafe

conditions, was not “fully and fairly litigated”; in Stokely-Van Camp,

722 F.2d at 1331-1332, the court, in dictum, found thatthe respondent

was not informed of an unpleaded charge in time to prepare a defense;

in Soule Glass & Glazing Co., 652 F.2d at 1102, the court found that

the respondent had not been on notice during the hearing-of certain

unpleaded charges and that the deficiency could not be overcome alter

the hearing’s close by arguments in the General Counsel’s brief; in

Homemaker Shops, 724 F.2d at 544, the court found that amendment

of a complaint just prior to the Labor Day weekend did not give the

respondent a fair opportunity to locate, interview, and secure attend-

ance of witnesses, and in the circumstances, the allegation was not

fully and fairly litigated; in Blake Construction Co., 663 F.2d at 282,

the court found that the General Counsel had not made clear his

theory of the case and the respondent did not actually litigate his

defenses; and in Drug Package, Inc., 570 F.2d at 1345, the court

foundthat the unalleged violation was not fully litigated because the

respondent was unaware of the possibility of the retroactive remedy

that would flow from it.

was aware of the theory of violation well before the hear-

ing commenced and had a full and fair opportunity to pre-

sent its defenses to the charge (Pet. App. 7a). Thus, the

decision below is consistent with all prior precedent.

2. Petitioner’s remaining contentions raise only

evidentiary issues that do not warrant review by this

Court. See Universal Camera Corp. v. NLRB, 340 U.S.

474, 490-491 (1951). Petitioner’s assertion (Pet. 9-12) that

Sooknanan’s conduct constituted “personal griping” mere-

ly takes issue with the Board’s finding, upheld by the court

of appeals, that Sooknanan was acting on behalf of other

employees (Pet. App. 8a, lla, 23a-24a). Likewise, peti-

tioner’s suggestion (Pet. 12-13) that Sooknanan’s allegedly

rude response to Getrajdman should not be protected only

quarrels with the Board’s finding, upheld by the court of

appeals, that Sooknanan was not acting independently or

in derogation of the bargaining relationship (Pet. App.

8a-lla, 23a-24a). Finally, petitioner’s claim (Pet. 13-15)

that the decision below is at odds with this Court’s decision

in Emporium Capwell Co. v.Western Addition Communi-

ty Org., 420 U.S. 50, 61-70 (1975), which held that

employee attempts to bypass a certified union and bargain

over the terms and conditions of employment violate the

statutory principle of majority rule and thus are not pro-

tected by Section 7, 29 U.S.C. 157, is incorrect for the

same reason: the Board found, and the court of appeals

agreed, that Sooknanan had made no present demand for

bargaining or recognition and that his request for a discus-

sion in the event of decertification was not destructive of

the old union’s status (Pet. App. 10a, 24a).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.