Opposition Brief — National Posters, Inc. v. National Labor Relations Board

Suprema Court, U.S

FFE E D

FEB 20 j990

JOSEPH FP. SPANICL, Ji?

No. 89-914

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

NATIONAL POSTERS, INC. AND NATIONAL LITHO, A DIVISION

OF NATIONAL POSTERS, INC., PETITIONERS

¥.

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

KENNETH W. STARR

Solicitor General

Department of Justice —

Washington, D.C. 20530

(202) 633-2217

JERRY M. HUNTER

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

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the Board acted within its discretion in order-

ing petitioners to bargain with the certified representative

of their employees notwithstanding the passage of time

and the employee turnover that occurred while petitioners

were litigating their obligation to bargain.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Brooks v. NLRB, 348 U.S. 96 (1954) ............ 6,9

Clark’s Gamble Corp. v. NLRB, 422 F.2d 845 (6th

Cir.), cert. denied, 400 U.S. 868 (1970) ........ 10

Fall River Dyeing & Finishing Corp. v. NLRB,

SN EE he a ak caw awe ebbaeeaes s

Frank Bros. v. NLRB, 321 U.S. 702 (1944) ....... 7

Mar-Jac Poultry Co., 136 N.L.R.B. 785 (1962) ... 7

Midland National Life Insurance Co., 263

eI Oe OD 8 no nv cs cd ents bencens ee

Mosey Mfg. Co. v. NLRB, 701 F.2d 610 (7th Cir.

Ry kar nt aah rigs aa ree ia a ag 4

National Posters, Inc. v. NLRB, 720 F.2d 1358

IG oO) Nr ee gt Wee eae a oe 3

NLRB vy. Action Automotive, Inc., 853 F.2d 433

(6th Cir.), cert. denied, 109 S. Ct. 865 (1989) ... 6, 7, 9

NLRB vy. American Cable Systems, Inc., 427 F.2d

446 (Sth Cir.), cert. denied, 400 U.S. 957

ET Cy eels < Fok Ae Cw cena a eet 10

NLRB vy. Best Products Co., Inc., 765 F.2d 903

EC i, Vay cud see tans uearin wees Pe

NLRB vy. Connecticut Foundry Co., 688 F.2d 871

NR ei Ce vo We sin ov cae eaowcw eee ee 10

NLRB vy. Financial Institution Employees, 475

ee ea hale ew ev a ee R REO 73

IV

Cases — Continued: Page

NLRB vy. Gissel Packing Co., 395 U.S. 575

IS a sere, Vonto ace Ate One oe oe Ne ee

NLRB vy. H.P. Hood, Inc., 496 F.2d 515 (Ist Cir.

eo pia de es eke ee tees 6s Cranes 11

NLRB v. Katz, 369 U.S. 736 (1962) ............. 8

NLRB vy. Little Rock Downtowner, Inc., 414 F.2d

PSNI I gah oon c cas kha suaecas 9

NLRB vy. Nixon Gear, Inc., 649 F.2d 906 (2d Cir.

Seer ee tek y aa liges en Mebeene lacks 10

NLRB vy. Patent Trader, Inc., 426 F.2d 791 (2d

Re EE eee Ce es eke bee Y

NLRB vy. Ship Shape Maintenance Co., Inc., 474

ek oe es pipe chat ee 10

NLRB vy. St. Regis Paper Co., 674 F.2d 104 (Ist

Rs SUES hin ode ak ben Waa Veer eee, 10

NLRB vy. Star Color Plate Service, 843 F.2d 1507

(2d Cir.), cert. denied, 109 S. Ct. 81 (1988) ....9, 10, 11

NLRB vy. Triplex Mfg. Co., 701 F.2d 703 (7th Cir.

ARR SD 25 Ue at Rae po ia sea, Bae FEW, eon SI 10

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35

erie SER vk 4 an howard as Dan cadens eae 1]

Statutes and rule:

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

Srey ae Wie. ISO) oS ess... 2

Bo a ie. CIB ake: | ee 3

TE gah Daas UR pane 2) fet pd Relea ae ae ee

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-914

NATIONAL POSTERS, INC. AND NATIONAL LITHO, A DIVISION

OF NATIONAL POSTERS, INC., 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. la-13a) is

reported at 885 F.2d 175. The second supplemental decision

and order of the National Labor Relations Board (Pet.

App. 113a-156a) is reported at 289 N.L.R.B. No. 58. The

initial opinion of the court of appeals (Pet. App. 14a-30a),

remanding the Board’s initial decision and order (Pet. App.

50a-6la), is reported at 720 F.2d 1358. The Board’s first

supplemental decision and order after remand (Pet. App.

62a-112a) is reported at 282 N.L.R.B. 997.

JURISDICTION

The judgment of the court of appeals was entered on

September 13, 1989. The petition for a writ of certiorari

was filed on December 11, 1989. The jurisdiction of this

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

(1)

tr

STATEMENI

1. On December 15, 1981, the Board conducted a

representation election among petitioners’ production and

maintenance employees at their two Baltimore, Maryland

locations. The tally of ballots showed 24 votes for the

Baltimore Printing Pressmen and Assistants Union, Local

61 (the Union) and 21 votes against. Four ballots were

challenged —a number sufficient to affect the result. The

Union challenged three ballots, that of a plant clerical and

those of Albert Amend and Wesley Souders who it

claimed were supervisors. Petitioners challenged the ballot

ot Samuel John who they claimed was a casual or seasonal

employee. Pet. App. 15a, 3la-32a.

On March 16, 1982, the Regional Director, without

holding « hearing, ruled infer alia that the ballots of John

and the plant clerical should be opened and counted.! Pet.

App. 32a-35a, 35a-36a. The Regional Director also dis-

missed Objections to the conduct of the election filed by

both petitioners and the Union. Pet. App. 36a-47a.? The

' The Regional Director determined that a hearing would be

necessary tO determine the challenges to the ballots of Amend and

Souders. However, the Regional Director declined to order a hearing

pending a determination if, under the revised tally, those votes would

not be determinative. Pet. App. 35a, 48a.

> Petitioners contended that the Union misrepresented various

benetits and obligations of union representation and falsely claimed

that petitioners’ president had made large gifts to his children. Pet.

App. 36a-4la. The Regional Director found that the allegation con-

cerning family gifts, even if true, did not amount to an allegation ot

“corporate misfeasance” (Pet. App. 38a); the remaining allegations

Were not supported, as required by the Board’s procedures, by signed

Witness statements. Pet. App. 40a-41a. The Regional Director deter-

mined that one of the objections made by the Union—a claim that

petioners had improperly provided employees a tree health plan in

order to persuade them not to vote for the Union —raised issues of

—Eeeeee aa aaa...

Board upheld the Regional Director’s rulings. The revised

tally showed the Union ahead by 25 to 22 and, on July 14,

1982, the Union was certified as bargaining representative.

Pet. App. 67a.

Thereafter petitioners refused to bargain with the

Union, and the Union filed unfair labor practice charges.

The Board, on December 10, 1982, found that petitioners

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

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

ordered petitioners to bargain with the Union upon re-

quest. Pet. App. 50a, 55a, 57a-58a.

Petitioners then sought review of the Board’s decision.

The court of appeals, one judge dissenting, found that

John’s employment status raised material issues of fact

about his eligibility to vote and remanded the case to the

Board for an evidentiary hearing. National Posters, Inc. v.

NLRB, 720 F.2d 1358 (4th Cir. 1983); Pet. App. 14a-27a.

The court also held that petitioners “should be given the

opportunity to amend [their] objections” to the election in

light of the Beard’s new rule in Midland National Life In-

surance Co., 263 N.L.R.B. 127 (1982), limiting the cir-

cumstances under which elections would be set aside be-

cause Of misrepresentations.? Pet. App. 25a-26a.

2. Pursuant to the remand, the Board directed that a

hearing be held to determine John’s eligibility to vote. Pet.

fact that could only be determined after a hearing. Pet. App. 4la-42a.

That hearing became unnecessary after the opening of two of the chal-

lenged ballots revealed the Union a winner in the election. Pet. App.

48a.

> In Midland National Life Insurance Co., the Board held that it

would no longer set aside elections based on misleading campaign

statements, unless the “deceptive manner” in which the statements

were made precluded the voters from evaluating them. 263 N.L.R.B.

127, 133 (1982). The Board also determined to apply its new rule retro-

actively. /d. at 133 n.24.

4

App. 68. On November 23, 1984, after the hearing, the ad-

ministrative law judge issued a recommended decision

finding that John had a reasonable expectation of con-

tinued employment on the date of the election and that he

was eligible to vote. Pet. App. 94a-95a.* Accordingly, the

ALJ recommended reissuance of the Board’s original deci-

sion and order.’ Pet. App. I Ila.

On February 4, 1987, the Board issued a decision and

order affirming the ALJ’s findings regarding the eligibility

of John, Amend, and Souders. Pet. App. 63a. However,

the Board also granted petitioners’ motion to reopen the

record. The Union’s parent, the International Printing and

Graphic Communications Union (IPGCU), had merged

during the pendency of the litigation with the Graphic Arts

International Union (GAIU) to form the Graphic Com-

munications International Union (GCIU). After the

merger, the Union changed its name to the Baltimore

Graphic Communications Union, Local No. 61-C, an af-

filiate of the GCIU. The Board determined that more in-

formation was necessary to decide whether the merger be-

tween the IPGCU and GAIU so substanually changed the

Union as to have affected the Union’s continued status as

representative of a majority of petitioners’ employees. Pet.

App. 63a-64a. The Board rejected petitioners’ contention

that the high turnover rate among their employees since

* The Board had, also directed that evidence be taken to resolve the

issue Of the supervisory status of Amend and Souders, because if

John’s vote were disallowed, those two votes could be determinative.

Pet. App. 68a. The ALJ found that Amend was a supervisor but that

Souders was not. However, because Souders’ vote would not be de-

terminative given the ruling with respect to John, the ALJ declined to

order the opening of Souders’ ballot. Pet. App. 96a-11 la.

> The ALJ also noted that petitioners had not pursued the oppor-

tunity afforded by the remand to have a hearing on their objections to

the election. Pet. App. 68a n.3.

the election required the holding of a new election. Pet.

App. 64a n.4.

3. The ALJ reopened the hearing on July 29, 1987.

Pet. App. 122a. On February 11, 1988, the ALJ issued a

recommended decision in which he concluded that the in-

ternationals’ merger caused no subsiantial changes in the

Union that could raise a question concerning representa-

tion. Pet. App. 156a. On June 30, 1988, the Board upheld

the ALJ’s recommended decision. Pet. App. Il4a. The

Board also denied petitioners’ request to reopen the record

to take evidence concerning the turnover that had oc-

curred since its prior decision or to reconsider its prior rul-

ing that the “turnover” argument lacked merit. Pet. App.

113a n.1. Accordingly, the Board found that petitioners

violated Section 8(a)(S) and (1) of the Act by refusing to

bargain with the Union and it reaftirmed its bargaining

order. Pet. App. 114a-115a; see also id. at 56a-57a.

4. The court of appeals enforced the Board’s order.

Pet. App. 2a. It concluded that substantial evidence sup-

ported the Board’s conclusion that John was eligible to

vote. Pet. App. 7a. The court also agreed with the Board

that the merger between the IPGCU and the GAIU did not

raise a question concerning the Union’s representative

status. Pet. App. 8a-lla. Citing NLRB v. Financial In-

sutution Employees, 475 U.S. 192, 207 (1986), the court

noted that “{[w]hile changes in the governing structure of a

local union’s national affiliate could alter the identity of

the local, especially if the local’s bargaining autonomy ts

consequently restricted, it is the substantial continuity of

the local union rather than the affiliate that remains at

issue.” Pet. App. 10a. The court then concluded that the

merger did not substantially affect the relationship be-

tween the Union and the unit employees. Pet. App.

Ya-lla.

_6

Finally, the court rejected petitioners’ assertion that

they were entitled to have the record reopened to present

evidence concerning employee turnover since the election.

Pet. App. lla. The court acknowledged that “[c]ourts

have, albeit rarely and in extreme cases, declined to en-

force bargaining orders because of undue delay, attribut-

able to the NLRB, in the resolution of election disputes.”

Ibid. But while it pointed out that “[n]o good reason” ac-

counted for the two and a half year delay between the first

hearings on John’s eligibility and the Board’s decision

(Pet. App. 12a n.5), the court indicated that it was not ap-

propriate to place “the entire blame for the eight year

delay in the proceeding below on the NLRB.” Pet. App.

12a. Rather, the court turned to an examination of the

record, finding it “entirely devoid of evidence that new

employees are dissatisfied with or otherwise opposed to

Local 61-C’s representation.” Pet. App. 12a-l3a. The

court concluded that the “bare fact that employee turnover

has occurred [within] the eight years since the election”

provided no basis for doubting the Union’s continuing ma-

jority status. Pet. App. 12a.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or of any other

court of appeals. Accordingly, review by this Court is not

warranted.

1. Barring unusual circumstances, a union’s majority

status may not be questioned during the year following the

union’s certification. Brooks v. NLRB, 348 U.S. 96

(1954). The certification year has never started to run in

this case, because that period does not begin until the em-

ployer commences bargaining with the union in good

faith, and petitioners have not yet done so. NLRB v.

Action Automotive, Inc., 853 F.2d 433, 434 (6th Cir.),

cert. denied, 109 S. Ct. 865 (1989); Mar-Jac Poultry Co..,

136 N.L.R.B. 785 (1962). Petitioners essentially contend

that the passage of time and the turnover that occurred

while they were litigating their obligation to bargain con-

stitute unusual circumstances precluding the issuance of a

bargaining order.® There is no merit to that contention.

This Court has consistently held that a union’s loss of

majority status during delays due to litigation does not ter-

minate an employer’s obligation to bargain. Otherwise, as

the Court explained in Frank Bros. v. NLRB, 321 U.S.

702, 705 (1944), “procedural delays necessary fairly to

determine charges of unfair labor practices might in this

way be made the occasion for further procedural delays in

connection with repeated requests for elections, thus pro-

® Petitioners assert (Pet. 12, 17, 21) that the change in the Union’s

affiliation and unresolved allegations of Union misrepresentation dur-

ing the election campaign are also factors which bear on the propriety

of a bargaining order. However, the court of appeals found that the

merger of the Union’s parent international raised no question con-

cerning the Union’s continuing majority status (Pet. App. 10a-1 1a),

and petitioners have not challenged that finding in their questions

presented for review (Pet. (i)). See Sup. Ct. R. 14.1(a). Nor did peti-

tioners pursue the opportunity afforded by the court of appeals, in its

initial decision remanding this case to the Board, to pursue their

allegations concerning Union misrepresentations. See pp. 3-4 & note

¢4, supra; Pet. App. 68a n.3. In addition, petitioners have not raised in

their questions presented any contention concerning retroactive ap-

plication of the Board’s rule in Midland National Life Insurance Co.,

supra, that misrepresentations no longer warrant the setting aside of

an election unless deception in the manner they are made precludes

their evaluation by voters. (In any event, the courts of appeals have

uniformly approved retroactive application of Midland. See, e.g.,

NLRB v. Best Products Co., Inc., 765 F.2d 903, 911 nn.8-9 (9th Cir.

1985).) Accordingly, as the court of appeals observed (Pet. App.

lla-12a), the only issue here is whether delay and “bare assertions of

employee turnover” warrant further consideration of the propriety of

the bargaining order.

8

viding employers a chance to profit from a stubborn re-

fusal to abide by the law.” See NLRB v. Gissel Packing

Co., 395 U.S. 575, 610-613 (1969); NLRB v. Katz, 369

U.S. 736, 748 n.16 (1962); see also Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 37-38 (1987).

This case illustrates that concern. The Union won a rep-

resentation election in 1981 and was certified as the bar-

gaining representative of petitioners’ employees in 1982.

Since that time, petitioners have pressed a variety of objec-

tions to the Union’s representative status, none of which

has been found meritorious. While petitioners assert (Pet.

11-12) that the passage of time here was attributable to the

Board’s “inexcusable delays,” the court of appeals correct-

ly points out (Pet. App. 12a & n.5) that only the hiatus be-

tween the ALJ’s and the Board’s post-hearing decision on

John’s eligibility was attributable to unexplained delay by

the Board.’

In any event, while noting that “[iJnordinate delay in

any case is regrettable,” this Court has rejected the conten-

tion that enforcement of a bargaining order should be

denied or conditioned on the holding of a new election be-

cause of the Board’s delay in issuing the order, even in the

presence of the employees’ subsequent repudiation of the

union. Aa/z, 369 U.S. at 748 n.16. Here, as the court of

appeals noted (Pet. App. 12a-13a), the record is “entirely

’ Petitioners also contend (Pet. 11) that the Board unduly delayed

the proceedings by failing to hold a hearing on their ballot challenges

prior to certification. But as indicated by the fact that one judge

dissented trom the initial panel decision on the ground that no hearing

Was necessary (see Pet. App. 28a-30a), the Board’s determination ot

the challenges without a hearing cannot be deemed egregious ad-

ministrative action. Indeed, if anything, it represented an attempt to

resolve election issues expeditiously.

9

devoid” of evidence that the new employees are dissatis-

fied with or oppose Local 61-C’s representation. ®

2. Thecourts of appeals have consistently rejected em-

ployers’ claims of employee turnover as a justification for

refusing to bargain with a Board-certified union during

the certification year. See, e.g., Action Automotive, 853

F.2d at 434-435; NLRB vy. Star Color Plate Service, 843

F.2d 1507 (2d Cir.), cert. denied, 109 S. Ct. 81 (1988);

NLRB vy. Best Products Co., 765 F.2d 903, 913-914 (9th

Cir. 1985); NLRB vy. Little Rock Downtowner, Inc., 414

F.2d 1084, 1091 (8th Cir. 1969); cf. NLRB v. Patent

Trader, Inc., 426 F.2d 791 (2d Cir. 1970) (en banc).

The cases cited by petitioners (Pet. 13-18) are not to the

contrary. A number of those cases involved a union that,

unlike the Union here, had never been properly certified.

Thus the court in Mosey Mfg. Co. v. NLRB, 701 F.2d 610

(7th Cir. 1983), invalidated the Board’s certification of a

union because of union misrepresentations under the

standard then applied by the Board to evaluate such mis-

representations. The court-refused to remand the case to

the Board for examination under a subsequently adopted

standard because five and a half years had elapsed since

the election and the court was not sure that the Board in-

tended the new standard, which had been adopted and re-

® Petitioners complain (Pet. 18-20) that the court of appeals im-

properly relied on NLRB v. Financial Institution Employees, 475 U.S.

192 (1986), in concluding that their attack on the propriety of the

bargaining order could not succeed unless the circumstances relied

upon provided an objective basis for believing the Union had lost its

majority status. However, this standard was, if anything, more ac-

commodating than necessary to petitioners. In Brooks v. NLRB, 348

U.S. 96, 103 (1954), this Court made clear that loss of majority status

Was not an unusual circumstance affording grounds for refusing to

recognize the bargaining agent during the certification year; as noted

above, the certification year in this case has yet to run.

10

jected and readopted during the pendency of the litigation,

should apply on the anomalous facts of the case. /d. at

611-613, 615. Similarly, in NLRB v. Triplex Mfg. Co., 701

F.2d 703, 709 (7th Cir. 1983); NLRB v. Nixon Gear, Inc.,

649 F.2d 906, 914 (2d Cir. 1981); and NLRB v. Connecti-

cut Foundry Co., 688 F.2d 871, 881 (2d Cir. 1982), the

courts declined to remand cases to the Board where certi-

fications had been held invalid due to denial of hearings

on election objections. The courts decided that passage of

time had both decreased the ability to hold a fair hearing

on the objections and called into question the union’s con-

tinuing majority support. Unlike those cases, this case

does not involve another time-consuming remand (see Star

Color, 843 F.2d at 1509); the Board’s order requires the

petitioners to bargain with a union properly certified after

an election which has been the subject of repeated hear-

ings.?

Clark’s Gamble Corp. v. NLRB, 422 F.2d 845 (6th

Cir.), cert. denied, 400 U.S. 868 (1970); NLRB v. Ameri-

can Cable Systems, Inc., 427 F.2d 446 (Sth Cir.), cert.

denied, 400 U.S. 957 (1970); and NLRB v. Ship Shape

Maintenance Co., Inc., 474 F.2d 434 (D.C. Cir. 1972), did

not involve post-election certifications. Rather, they in-

volved bargaining orders issued pursuant to Gissel Pack-

ing Co., supra, in which the courts deemed employee turn-

Over and passage of time relevant to the assessment of

whether a bargaining order was still proper because a fair

election could not be held given the employer’s unfair

9 NLRB vy. St. Regis Paper Co., 674 F.2d 104, 107-108 (1st Cir.

i982), did not involve a certification of election results at all. The

bargaining order was based on a finding that a new group of em-

ployees had been accreted to the certified unit. Furthermore, the re-

mand to consider the continued appropriateness of the bargaining

order was based on the fact that the facility in issue had closed down.

Id. at 109.

11

labor practices. No case has held that the factors to be

considered in that context affect the enforceability of a

Board order to bargain with a union certified on the basis

of an election—the preferred method of determining

whether a union has majority support. Gissel Packing |

Co., 395 U.S. at 602. See, e.g., NLRB v. Star Color Plate

Service, supra. Conversely, Peoples Gas System, Inc. v.

NLRB, 629 F.2d 35 (D.C. Cir. 1980), involved a bargain-

ing obligation long after the certification year. There the

court of appeals sustained the Board’s decision that the

employer had unlawfully withdrawn recognition from a

long-certified union but went on to find a bargaining order

unwarranted because, after the unlawful withdrawal, the

employees had decisively rejected the union in a fair decer-

tification election. Jd. at 47, SO.

Finally, in NLRBv. H.P. Hood, Inc., 496 F.2d 515, 520

(Ist Cir. 1974), the court simply withheld for 60 days entry

of an enforcement order, thereby giving the Board, which

had indicated that it was willing to reconsider the appro-

priateness of a bargaining order due to passage of time, an

opportunity to do so. Thus, none of these cases calls into

question the decision here.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JERRY M. HUNTER

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

National Labor Relations Board

FEBRUARY 1990

xs US GOVERNMENT PRINTING OFFICE 1990— 262-203/00767