Opposition Brief — Local Union No. 246, Laborers' International Union v. Bickerstaff Clay Products Co.

OCTOBER TERM, 1989

LOcAL UNION No. 246, LABORERS’ INTERNATIONAL

UNION OF NoRTH AMERICA, AFL-CIO, PETITIONER

Vv.

BICKERSTAFF CLAY PropuctTs Co., INC., ET AL.

ON PETITIONS FOR LEAVE TO INTERVENE

AND FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Department of Justice

JOSEPH E. DESIO Washington, D.C. 205380

Acting General Counsel (202) 633-2217

D. RANDALL FRYE

Associate 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

Washington, D.C. 20570

QUESTION PRESENTED

Whether the court of appeals correctly concluded

that the employer, unaided by any presumption re-

garding the extent of union support among replace-

ments for striking employees, sufficiently established

a good-faith doubt that the incumbent union enjoyed

continued majority status.

(1)

$\

TABLE OF CONTENTS

Page

I se ccesianclebanemsananenatinncipnintionaiannenens 1

i apn mein ailediciaboniscdindsbcnnnens 2

I cclinicatacstochininianiasletieptmbennnienl 2

SRST ATER ora pt nO Or 6

I asia cae sel aestbsibiaenbnbantinadincnnsiniphiodnane 9

TABLE OF AUTHORITIES

Cases:

Brooks v. NLRB, 348 U.S. 96 (1954) ..........-.........-.- 6

Curtin Matheson Scientific, Inc. v. NLRB, 859

F.2d 362 (5th Cir. 1988), cert. granted, No. 88-

I a, as uatdntapastnhasenens 4,7

Fall River Dyeing & Finishing Corp. v. NLRB,

I nai cecccahmieciidintineetnnenee 6, 7

International Union, United Automobile Workers,

Local 283 v. Scofield, 382 U.S. 205 (1965) -........ 6

NLRB v. Burns International Security Services,

EBS Me eRe een 6

NLRB vy. Pennco, Inc., 684 F.2d 340 (6th Cir.),

cert. denied, 459 U.S. 994 (1982) .........0000000 2. 7

NLRB vy. Randle-Eastern Ambulance Service, Inc.,

BE ee Te Ce GIR. RBTE) 2... -2nnncnecncccesnreseneenss 8

NLRB vy. Windham Comm. Memorial Hosp., 577

a sscintmenmicanmenaaneneiacs 7

Retired Persons Pharmacy V. NLRB, 519 F.2d 486

a a a ES ele oR 7

Station KKHI, 284 N.L.R.B. No. 118 (July 27,

a are EER a a ca a no ee 3

Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381

alae accel 7

Statutes:

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

seq.:

CRD Cds Oe Wes BOO CR) CB) nnn. nnenncsececeeses 3

(III)

IV

Statutes—Continued: Page

§ 8(a) (5), 29 U.S.C. 158 (a) (5)... 3

8 Cee eee en eee 6

38, 2 USC. 180(c) (8).................................... 6

Miscellaneous:

R. Gorman, Labor Law (1970) ..............0. 4

R. Stern, E. Gressman, and S. Shapiro, Supreme

Court Practice (6th ed. 1986) 6

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-144

LOCAL UNION No. 246, LABORERS’ INTERNATIONAL

UNION OF NORTH AMERICA, AFL-CIO, PETITIONER

Vv.

BICKERSTAFF CLAY PRODUCTS Co., INC., ET AL.

ON PETITIONS FOR LEAVE TO INTERVENE

AND FORA WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

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

29a) is reported at 871 F.2d 980. The decision and

order of the Board (Pet. App. 30a-54a) are reported

at 286 N.L.R.B. No. 27.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on April 27, 1989. The petitions for leave to inter-

vene and for a writ of certiorari were filed on

July 26, 1989. The jurisdiction of this Court is in-

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

STATEMENT

1. Respondent Bickerstaff Clay Products Co., Inc.,

makes and sells brick and tile products. In 1965,

Bickerstaff voluntarily recognized petitioner (‘the

Union”) as the bargaining representative for cer-

tain of its production and maintenance employees.

The parties thereafter negotiated a series of labor

agreements. On November 11, 1985, after the par-

ties had failed to consummate a new agreement, the

Union commenced an economic strike. Bickerstaff

continued its operations during the strike, relying on

striker replacements, employees who elected not to

join the strike, and “crossover” employees, who

crossed the picket line and returned to work prior

to the conclusion of the strike. Pet. App. 2a-3a,

30a n.1

On January 28, 1986, Bickerstaff advised the

Union that negotiations were at an impasse and that

the Company would institute the wages and other

benefits proposed in its final offer, set forth on No-

vember 6, 1985. The Union did not respond until

April 8, 1986. On that date, the Union offered to

accept the final offer and return to work. It also

asked Bickerstaff for a list of all employees currently

working, along with various additional information

regarding the working employees. Pet. App. 4a.

The following day, April 9, Bickerstaff declined

to execute an agreement with the Union and, ex-

3

pressing its “serious[] doubt that [the] union rep-

resents a majority of [the] employees” (Pet. App.

5a), withdrew recognition from the Union. The

Company also refused to furnish the requested in-

formation concerning the existing workforce. As of

April 9, there were 304 employees at work, of whom

93 were permanent replacements, 133 were cross-

overs, and 78 were employees who had not struck.

Pet. App. 4a-5a, 30a n.1.

2. Acting on charges filed by the Union, the Board

held that Bickerstaff’s withdrawal of recognition vio-

lated Section 8(a) (5) and (1) of the National Labor

Relations Act, 29 U.S.C. 158(a) (5) and (1). Pet.

App. 30a-54a. The Board agreed with the adminis-

trative law judge (ALJ) that “the total evidence pre-

sented by [Bickerstaff] is insufficient to rebut the

presumption of the continued majority status that

the Union enjoyed as the incumbent bargaining rep-

resentative” (Pet. App. 30a-3la n.2).’ In reaching

that result, the Board, citing its recent decision in

Station KKHI, 284 N.L.R.B. No. 113 (July 27, 1987),

explained that it was “unnecessary to apply any pre-

sumption whether the employees who replaced the

strikers supported or did not support the Union”

(Pet. App. 3la n.2). The Board ordered the Com-

1The ALJ rejected the Company’s reliance on strike-related

violence, finding that it had all occurred at the very beginning

of the strike (Pet. App. 44a-45a). The ALJ further found

that 38 dues check-off cancellations by employees did not evi-

dence withdrawal of support from the Union, that 15 resigna-

tions from the Union did not constitute a “‘substantial” with-

drawal, and that “there was no probative evidence showing

that a substantial number of the replacements expressed dis-

interest in the Union” (id. at 46a, 48a). Finally, the ALJ

found no evidence that petitioner had abandoned its repre-

sentative duties (id. at 47a).

4

pany to recognize the Union and to bargain with it

on request (id. at 50a-51a).

3. The court of appeals denied enforcement, hold-

ing that Bickerstaff had established a sufficient good-

faith doubt of the Union’s majority status (Pet. App.

la-29a). The court explained that “the substantial

number of resignations and dues check-off authoriza-

tion[] [withdrawals] in the circumstances of this

case’—which included picket line violence (id. at

17a) and a “breakdown in union leadership, union

dormancy, and employee dissatisfaction and disillu-

sionment with the Union” (id. at 26a)—provided

“an objective basis for believing that a substantial

number of returning strikers no longer desired union

representation” (id. at 16a-17a).

With respect to the striker replacements, the court

noted that some circuits “seem to rely on the state-

ment made by one commentator, R. Gorman, Labor

Law (1970), that ‘if a new hire agrees to serve as

a replacement for a striker (in union parlance, a

strike breaker, or worse), it is generally assumed

that he does not support the Union and that he ought

not be counted toward a Union majority’” (Pet.

App. 19a, quoting R. Gorman, supra, at 112). The

court refused to apply that presumption (see Pet.

App. 2la-22a), however,’ and looked instead to the

2 The court criticized the reasoning of the Fifth Circuit’s

decision in Curtin Matheson Scientific, Inc. v. NLRB, 859

F.2d 362 (1988), cert. granted, No. 88-1685 (June 26, 1989),

in which that court had approved the so-called “Gorman pre-

sumption.” The court below explained that the Fifth Circuit

had erroneously supposed that the Board’s no-presumption

rule articulated in Station KKHI and its prior rule—presum-

ing that replacements support the union in the same ratio as

the workers they replace—were operationally the same. To

the contrary, the court below noted, the no-presumption rule

5

particular circumstances of the strike in gauging

the sentiments of the striker replacements. In the

present case, the court explained, “the Company ex-

pressly rejected proposals made by the mediator on

behalf of the Union that Bickerstaff’s strike replace-

ments be discharged so that striking employees could

return to work” (7d. at 28a). Moreover, the court

stated, “the strike replacements had to cross a picket

line, at least for a time, in an atmosphere of vio-

lence” (ibid.). The court concluded that “it is highly

unlikely that a replacement worker supports the

union if the union is negotiating for his discharge

and he crosses a union-supported picket line, violence

or not, to report to work each day” (id. at 23a-24a).

“Under the facts of this case,” the court concluded,

“the Company was justified in counting the striker

replacements as employees whom [sic] the Company

doubts supports [sic] the Union” (id. at 24a).

In sum, the court found “a composite showing of

objective evidence which is sufficient to establish,

clearly and convincingly, that Bickerstaff had a rea-

sonable basis to support a good faith doubt as to the

representative status of the Union” (Pet. App. 27a).

The court therefore held that the Company did not

violate the Act when it withdrew recognition from

the Union, failed to furnish the requested informa-

tion, and refused to execute a contract based on the

Company’s last offer (7d. at 29a).

alters “the nature and amount of evidence” which the em-

ployer must adduce, and gives the Board “more flexibility to

consider each situation on its own facts” (Pet. App. 22a).

6

ARGUMENT

Although entitled, on the filing of a timely motion,

to intervene as of right in the court of appeals, /n-

ternational Union, United Automobile Workers, Local

283 v. Scofield, 382 U.S. 205, 217-221 (1965),

thereby ensuring its standing to petition this Court

for review of an adverse decision, petitioner elected

not to do so. Moreover, after the court of appeals

refused to enforce the Board’s order, petitioner chose

not to move in that court for intervenor status, either

before or after learning that the Board had deter-

mined not to seek certiorari. Petitioner now asks

this Court to grant it intervenor status, but does not

identify the proceeding, if any, that is now pending

before this Court and in which it seeks to intervene.

In any event, intervention before this Court is

granted “[o]nly for the most imperative of reasons”

(R. Stern, E. Gressman, and S. Shapiro, Supreme

Court Practice 341 (6th ed. 1986)), and petitioner

has not advanced such reasons here. The petition for

leave to intervene, and, if reached, the petition for

a writ of certiorari, should be denied.

1. Pursuant to Section 9 of the National Labor

Relations Act, 29 U.S.C. 159, the National Labor Re-

lations Board may certify a particular labor organ-

ization as the exclusive bargaining representative for

a company’s employees. Once the Board has done so,

the union “usually is entitled to a conclusive pre-

sumption of majority status for one year following

the certification.” Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 37 (1987). Accord

NLRB v. Burns International Security Services, Inc.,

406 U.S. 272, 279 n.8 (1972) ; Brooks v. NLRB, 348

U.S. 96, 98-99 (1954). See also 29 U.S.C. 159(c)

(3). “[A]fter this period, the union is entitled to a

7

rebuttable presumption of majority support.” Fall

River Dyeing, 482 U.S. at 38; Burns International,

406 U.S. at 279 n.38. An employer may rebut that

presumption and withdraw recognition from the

union by showing either (1) that the union did not

in fact enjoy majority status, or (2) that there was

a sufficient, objective basis for a reasonable doubt of

the union’s majority status.’

2. In reaching its decision in the present case, the

Board, relving on Station KKHI, noted that, in eval-

uating Jsickerstaff’s claim that it had a good-faith

doubt about the Union’s majority status, it would

make no presumption concerning the union senti-

ments of the striker replacements hired by the Com-

pany (Pet. App. 3la n.2). The lawfulness of the

Board’s no-presumption rule is presently before the

Court in NLRB v. Curtin Matheson Scientific, Inc.,

No. 88-1685. The Fifth Circuit in Curtin Matheson

rejected the no-presumption rule in favor of the Gor-

man presumption, according to which striker replace-

ments are presumed to oppose the incumbent union.

In our brief in that case, we have argued that this

presumption lacks a sufficient empirical basis, dis-

serves bargaining stability, and imposes too high a

eost on the exercise of the protected right to strike.

Petitioner contends (Pet. 12-14) that the decision

below presents the same question as that at issue in

3 See, e.g., Whisper Soft Mills, Inc. v. NLRB, 754 F.2d

1381, 1887 (9th Cir. 1984) ; NLRB v. Pennco, Inc., 684 F.2d

840, 342 (6th Cir.), cert. denied, 459 U.S. 994 (1982);

NLRB v. Windham Comm. Memorial Hosp., 577 F.2d 805,

811 (2d Cir. 1978); Retired Persons Pharmacy v. NLRB,

519 F.2d 486, 489 (2d Cir. 1975). Cf. Fall River Dyeing, 482

U.S. at 41 n8.

4 We have furnished a copy of our brief in Curtin Matheson

to petitioner’s counsel.

8

Curtin Matheson. That is not so. The court of ap-

peals in this case did not apply the Gorman pre-

sumption. Rather, looking to the record as a whole

—including the Union’s conduct of the picket line,

and its determination to oust the striker replace-

ments as part of its proposed back-to-work agree-

ment—the court concluded that “[u]nder the facts

of this case * * * the Company was justified in

counting the striker replacements as employees whom

[sic] the Company doubts supports [sic] the Union”

(Pet. App. 24a).° Although the Board disagrees with

the court’s assessment of the evidence, that disagree-

ment raises only a fact-bound issue that does not war-

rant review by this Court.

5 Contrary to petitioner’s contention (Pet. 12-13), the fact

that both the court below and the Fifth Circuit in Curtin

Matheson relied on the same precedent, NLRB v. Randle-

Eastern Ambulance Service, Inc., 584 F.2d 720 (5th Cir.

1978), does not establish that the court below adopted the

Gorman presumption. Thus, whereas the Curtin Matheson

court interpreted Randle-Eastern as having adopted that pre-

sumption (859 F.2d at 367), the court below, although ac-

knowledging that the Randle-Eastern court “did approvingly

cite to Professor Gorman’s treatise,” concluded that the

Randle-Eastern court’s “decision to include permanent re-

placements as objective evidence of Joss of union support was

based on the fact that the Union was bargaining for the dis-

charge of striker replacements to make room for the strik-

ers,” as well as the fact that there was “picket line violence

with respect to striker replacements” (Pet. App. 22a). “The

decision in Randle-Eastern,” the court below said, “should be

limited to the specific facts of the case” (id. at 22a-23a).

9

CONCLUSION

The petition for leave to intervene, and, if reached

by this Court, the petition for a writ of certiorari

should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JOSEPH E. DESIO

Acting General Counsel

D. RANDALL FRYE

Associate 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

SEPTEMBER 1989

W ov. S. GOVERNMENT PRINTING orrics; 19869 241699

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