Opposition Brief — General Wood Preserving Co. v. National Labor Relations Board

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No. 90-455

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In the Supreme Court of the Gnited States 7

OCTOBER TERM, 1990

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GENERAL WOOD PRESERVING COMPANY, INC., PETITIONER

V.

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) 514-2217

JERRY M. HUNTER

General Counsel

D. RANDALL FRYE

Acting Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

ROBERT F. MACE

Altorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the National Labor Relations Board reason-

ably concluded that unfair labor practices by petitioner —a

successor employer—and its predecessor prevented the

holding of a fair election and therefore warranted entry of

a Gissel bargaining order against petitioner.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

American Press, Inc. v.: NLRB, 833 F.2d 621

es a a a dy aula Ges n pe 7

Bandag, Inc. v. NLRB, 583 F.2d 765 (Sth Cir.

ee eee ois i a as a am oo hs ab oek 4 0 11

Carlton’s Market, 243 N.L.R.B. 837 (1979), en-

forced, 642 F.2d 350 (9th Cir. 1981) ........... 10

Chromalloy Mining & Minerals v. NLRB, 620 F.2d

ese ia a ee dha 6 Nk wae 9

Fall River Dyeing & Finishing Corp. v. NLRB,

ad awd cua eid ek ewe ee aw 12

Golden State Bottling Co. v. NLRB, 414 U.S. 168

Sa a Ls yaks ou ao 6 ede a wo 5

Granite City Journal, 262 N.L.R.B. 1153 (1982) .. 11

NLRB v. Ace Comb Co., 342 F.2d 841 (8th Cir.

as a vg nla Giklod he ws 8d 11

NLRB vy. Air Products & Chemicals, Inc., 717 F.2d

ee ek ee ee 9

NLRB v. Cott Corp., 578 F.2d 892 (Ist Cir. 1981). . 10

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). . 6, 7, 8

NLRB vy. Keystone Pretzel Bakery, Inc., 696 F.2d

ey wah kesh e aes de ci 1]

Piggly Wiggly, Tuscaloosa Div. v. NLRB, 705 F.2d

SE, SU i ab ec ec adn decaaweces 9

SEC v. Chenery Corp., 318 U.S. 80 (1943) ....... i2

(IIT)

IV

Statutes: Page

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

seq.:

Sanh, 270.0. TI)... ow ces. 5, 10

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Jn the Supreme Court of the Anited States

OCTOBER TERM, 1990

No. 90-455

GENERAL WOOD PRESERVING COMPANY, INC., PETITIONER

V.

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. 1a-47a)

is reported at 905 F.2d 803. The decision and order of the

National Labor Relations Board (Pet. App. 48a-51a), in-

cluding the findings and recommendations of the admini-

strative law judge (Pet. App. 52a-87a), are reported at 288

N.L.R.B. No. 102. |

JURISDICTION

The judgment of the court of appeals was entered on

June 18, 1990. The petition for a writ of certiorari was

filed on September 14, 1990. The jurisdiction of this Court

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

(1)

2

STATEMENT

1. Until June 1984, Burke-Parsons Bowlby (Bowlby)

operated a facility for the chemical treatment of wood in

Leland, North Carolina. Pet. App. 56a. On June 29, 1984,

Bowlby sold the facility, including its production equip-

ment, vehicles, and inventory, to petitioner. /d. at 76a.

a. Inearly February 1984, several of Bowlby’s produc-

tion and maintenance employees engaged in a job walkout

and began discussions with representatives of the Inter-

national Woodworkers of America, AFL-CIO (the

Union). Pet. App. 57a. By late February 1984, at least 42

of the 64 employees in the production and maintenance

unit had signed petitions authorizing the Union to be their

collective bargaining representative. /d. at 74a-75a. The

Union filed a petition for a representation election, and

the Board scheduled one for April 6, 1984. Jd. at 69a.

After the Union began its organizing campaign, Bowlby

Officials took numerous actions that later became the basis

for unfair labor practice charges. They interrogated em-

ployees about their union sympathies; threatened employ-

ees with closing and selling the facility, with subcontract-

ing out their work, with losing their benefits and jobs, and

with other unspecified reprisals if they chose union repre-

sentation; promised employees that Bowlby would solve

their problems without the Union; enforced work rules

more stringently than before the campaign began; disci-

plined several employees because of their union activity;

and packed the bargaining unit with non-union employees

to dissipate the Union’s majority. Pet. App. 59a-70a.

Specifically, Bowlby’s president, Richard Bowlby,

stated in a letter to employees that the Union posed a “high

risk,” and that the employees should consider what the

Union might “cost” them and not “vote [themselves] into a

sea of trouble.” Pet. App. 63a-64a. Richard Bowlby also

3

warned several employees that, if they voted to have the

Union represent them, he would ship work to another

facility. Jd. at 36a.

Bowlby’s plant manager, Carl Williams, advised several

employees that, if the employees elected union representa-

tion, they “might as well start looking for another job.”

Pet. App. 59a-60a.

Bowlby’s supervisors issued similar threats. Bowlby

supervisor Percy Burns told an employee that, if the

Union was elected, Bowlby would close the facility. Pet.

App. 6la. Bowlby supervisor Jimmie Smith asked two

employees whether they supported the Union and told

them that the employees should “get ready to plant a

garden because [they] were all going to be on the soup

line”; Smith also said that Bowlby would close and sell the

facility if the employees elected union representation. /d.

at 60a. Smith warned at least three other employees that

the employees were “going to wind up in the soup line” if

the Union was elected. /d. at 6la.

Bowlby supervisors Smith, Gary Wood, and Bill Cald-

well each held conversations with employees to advise

them that they would lose benefits if they elected the

Union. Pet. App. 59a, 6la.

Bowlby’s production manager, Thomas Greene, issued

disciplinary warnings to four employees because of their

union activity. Pet. App. 64a-69a. Greene also suspended

one of these employees, who was among the earliest and

most vocal supporters of the Union, because of his union

activity. Id. at 66a-67a.

A few days before the election was to occur, in an effort

to dissipate the Union’s majority status, Bowlby’s manage-

ment brought in about 25 employees from out of state and

put them on the list of employees eligible to vote in the

election. Pet. App. 69a-70a.

4

In response to Bowlby’s actions, the Union filed unfair

labor practice charges with the Board, thereby blocking

the scheduled election. Pet. App. 58a, 69a.

b. On June 20, 1984, Stanley Winbourne, the presi-

dent of petitioner and a former official of Bowlby, ad-

dressed Bowlby’s employees. Pet. App. 70a. He told them

that petitioner was purchasing Bowlby. /bid. He said that

he did not favor the Union, but that it was their decision to

make. /bid. He assured them that petitioner would hire

each of them and that each would start with a “clean

slate[ |.” /bid.

On June 28, 1984, the Union sent a telegram to Win-

bourne, advising him that it continued to represent a ma-

jority of Bowlby’s production and maintenance employees

and informing him of the unfair labor practices committed

by Bowlby. Pet. App. 70a-7la. The Union also demanded

that petitioner recognize the Union as the production and

maintenance employees’ collective bargaining representa-

tive. [bid.; see also id. at 23a.

On June 29, 1984, petitioner purchased Bowlby’s assets

and hired Bowlby’s line supervisors. Pet. App. 76a. Peti-

tioner also retained Greene as production manager, who,

as discussed, had disciplined several Bowlby employees for

supporting the Union. /bid. In early July, petitioner began

hiring production and maintenance employees; Greene

was responsible for making hiring recommendations. /d.

at 73a. Petitioner refused to hire several former Bowlby

employees because of their union activity. /d. at 70a-74a.

By the end of July 1984, petitioner had hired employees

in nearly all of Bowlby’s pre-existing production and

maintenance classifications. Pet. App. 76a. At that time, a

majority of petitioner’s 44 production and maintenance

employees were previous Bowlby employees. /bid.

Petitioner began operations on July 9, 1984. Pet. App.

76a. It operated out of Bowlby’s former facility, serviced

5

Bowlby’s former customers, and made the same products

that Bowlby had made. /bid.

2. The Board adopted the findings and conclusions of

the administrative law judge that, through the actions de-

scribed above, petitioner and Bowlby had violated Section

8(a)(1) and (3) of the National Labor Relations Act

(NLRA), 29 U.S.C. 158(a)(1) and (3). Pet. App. 48a-49a,

59a-74a. The Board also affirmed the ALJ’s finding that

petitioner was a successor employer because it had con-

tinued Bowlby’s business essentially unchanged, had hired

a production and maintenance work force the majority of

which was previously employed by Bowlby, and had pur-

chased Bowlby with notice of its unfair labor practices. /d.

at 48a-49a, 59a-70a, 76a-80a (citing Golden State Bottling

Co. v. NLRB, 414 U.S. 168 (1973)). The Board ordered

petitioner and Bowlby to recognize and bargairi with the

Union as the representative of the production and mainte-

nance employees. Pet. App. 80a-83a.'

The Board agreed with the ALJ that the unfair labor

practices of petitioner and Bowlby combined to make a

fair election unlikely. Pet. App. 49a-50a, 76a-77a. The

Board found that petitioner “commenced its takeover of

predecessor Bowlby by discriminatorily refusing to hire

known union activists and by committing that violation

through Production Manager Thomas Greene, who had

' The Board entered an order on May 12, 1988, that was directed

only at petitioner. Pet. App. 51a, 80-83a. On September 30, 1988, the

Board entered another order that was directed at both petitioner and

Bowlby but was otherwise in relevant part identical to its previous

order. See id. at 2a.n.3. In addition to directing petitioner and Bowlby

to bargain with the Union, the Board’s order directed them to cease

and desist from engaging in unfair labor practices, to expunge the files

of the unlawfully disciplined employees and make them whole, and

further ordered petitioner to offer to hire the seven individuals whom

petitioner had unlawfully refused to hire. /d. at 80a-83a.

6

held the same position with the predecessor.” /d. at 50a.

The Board concluded:

{[W]hatever might be the case had [petitioner] wiped

the slate clean and hired an entirely new managerial

and supervisory complement, the employees here had

received the plain message that supporting the Union

was a dangerous proposition regardless of who the

employer was.

Ibid.

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

and enforced its order. Pet. App. la-47a.

The court affirmed the Board’s determination that a

Gissel order? was warranted in light of the unfair labor

practices of Bowlby and petitioner. The court, like the

Board, reasoned that Bowlby’s “numerous unfair labor

practices,” standing alone, made a fair election unlikely.

Pet. App. 43a-44a. The court also agreed that, by refusing

to hire several former Bowlby employees because of their

union activity, petitioner had “added its own conduct that

tended to have a lasting inhibitive effect on the employees’

formulation and expression of free choice regarding

unionization.” /d. at 44a; see also id. at 33a-35a. The court

recognized that “an election, and not a bargaining order, is

the traditional and preferred method for determining the

bargaining agent for employees.” /d. at 46a. But the court

concluded that, notwithstanding the absence of an elec-

tion, the Board acted within its discretion in entering a

bargaining order, because

{W]here, as here, “the possibility of erasing the effects

of past practices and of ensuring a fair election... .

by the use of traditional remedies, though present is

slight and ... employee sentiment once expressed

> NLRB vy. Gissel Packing Co., 395 U.S. 575 (1969).

7

through cards would, on balance, be better protected

by a bargaining order, then such order should issue.”

Id. at 46a-47a (quoting Gissel Packing Co., 395 U.S. at

614-615).

The court also upheld the Board’s determination that

the order should extend to petitioner as the successor to

Bowlby. Pet. App. 33a-44a. The court held that substan-

tial evidence supported the Board’s finding that petitioner

carried on Bowlby’s business essentially unchanged (id.

35a), had actual notice of Bowlby’s unfair labor practices

(id. at 20a-27a), and hired a majority of Bowlby’s former

production and maintenance employees (id. at 35a-40a).

The court further held, contrary to petitioner’s contention,

that in entering the order against petitioner the Board was

“not required specifically” to identify “the precise per-

centage of union support that existed in [petitioner’s}] new-

ly constituted unit.” Jd. at 36a.

ARGUMENT

Despite petitioner’s broadside attack on the court of ap-

peals’ decision, the only issue actually presented in this

case is narrow and fact-specific: whether the court below

properly enforced a Gisse/ bargaining order entered by the

Board against petitioner, a successor employer, based on

the Board’s conclusion that unfair labor practices by peti-

’ The court also found applicable the principle that an employer

“may not defeat a finding of successorship through its own

discrimination,” Pet. App. 38a n.32 (quoting American Press. Inc. v.

NLRB, 833 F.2d 621, 625 (6th Cir. 1987)). The court observed that

here it could “be said with far greater likelihood than not that a ma-

jority of the employees in [petitioner's] unit would have been found to

have signed the petitions opting for union representation but for [peti-

tioner’s} discriminatorily having refused to hire the seven [former

Bowlby employees} who had signed the petitions.” Pet. App. 39a.

8

tioner and its predecessor precluded the holding of a fair

election. In enforcing the Board’s order, the court correct-

ly applied established legal principles to findings of the

Board that were supported by substantial evidence. Peti-

tioner’s fact-bound challenge thus does not warrant this

Court's review.

1. In Gissel Packing Co., 395 U.S. at 613-614, the

Court held that in two situations the Board has discretion

to order an employer to bargain with a union that has not

been selected as the employees’ bargaining representative

through an election: in “exceptional” cases marked by

“outrageous” and “pervasive” unfair labor practices; and

“in less extraordinary cases marked by less pervasive prac-

tices which nonetheless still have the tendency to under-

mine majority strength and impede the election

processes.” In the latter situation, there must be a show-

ing, whether through authorization cards or otherwise,

“that at one point the Union had a majority.” /d. at 614.

The Board must also determine “that the possibility of

erasing the effects of past practices and of ensuring a fair

election . . . is slight and that employee sentiment once ex-

pressed through [authorization] cards would, on balance,

be better protected by a bargaining order.” /d. at 614-615.

This determination, the Court emphasized,was primarily

one for the Board, not reviewing courts, to make. /d. at

612 n.32.

The Board in this case made the findings necessary to

support a Gisse/ order, and these findings were properly

upheld by the court of appeals. The Board found that the

Union obtained authorization cards from a majority of

Bowlby’s employees (Pet. App. 74a-75a), and that

Bowlby’s employees made up the majority of petitioner's

work force (/d. at 76a). The Board also found that, in

response to the Union's organizing campaign, Bowlby

committed numerous unfair labor practices, including unit

9

packing and threats of plant closure, job loss, and subcon-

tracting. /d. at 57a-70a, 7S5a-76a. These practices, the

Board determined, made the holding of a fair election

unlikely. /d. at 7Sa-76a.4 And when petitioner succeeded

Bowlby, the Board further found, petitioner too engaged

in conduct “clearly calculated to subvert the election pro-

cess” by “unlawfully refusing to hire known union

adherents.” /d. at 77a.° These findings were amply sup-

ported by record evidence and were therefore properly sus-

tained by the court of appeals.®

* Petitioner disputes (Pet. 10-11) the Board’s assessment that these

practices precluded the holding of a fair election. As the court below

recognized (Pet. App. 39a-44a), that assessment was well within the

Board's discretion to make. Gissel, 395 U.S. at 612 n.32. The unfair

labor practices committed by Bowlby were comparable to those found

to justify issuance of Gisse/ orders in other cases. See, e.g., NLRB v.

Air Products & Chemicals Inc., 717 F.2d 141, 144-147 (4th Cir. 1983);

Pigely Wiggly, Tuscaloosa Div. v. NLRB, 705 F.2d 1537, 1540-1543

(Lith Cir. 1983); Chromalloy Mining & Minerals v. NLRB, 620 F.2d

1120, 1130 (Sth Cir. 1980).

» Contrary to petitioner’s assertion (Pet. 10), the Board did not

enter the bargaining order against it based solely on the unfair labor

practices committed by Bowlby; the Board also took into account

petitioner's unlawful refusal to hire seven former Bowlby employees

who supported the Union. Pet. App. 77a. The Board likewise con-

sidered this unfair labor practice by petitioner in determining that the

chance of a fair election was slight. /bid. Petitioner is therefore incor-

rect when it asserts (Pet. 10) that this determination was based solely

on the fact of petitioner’s purchase of Bowlby’s business.

* Consistent with the Board’s reasoning, the court below considered

both Bowlby’s and petitioner’s unfair labor practices in enforcing the

Board's order against petitioner. Pet. App. 39a-44a. The court’s en-

forcement of the order therefore was not, as petitioner asserts (Pet.

11), based on a “novel and entirely independent rationale.”

‘ 10

The Board properly entered the Gisse/ order against

both Bowlby and petitioner upon determining that peti-

tioner was Bowlby’s successor (Pet. App. 76a-77a) and

that petitioner had notice of Bowlby’s unfair labor prac-

tices (id. at 77a). In this Court, petitioner challenges only

the latter determination. See Pet. 20-24.’ This fact-bound

challenge does not warrant this Court’s review. In any

event, the Board’s finding of notice was amply supported

by evidence, inter alia, that petitioner was (1) aware of the

Union’s organizing campaign and of Bowlby’s response to

the campaign, (2) knew that at least one unfair labor prac-

tice charge had been filed against Bowlby, and (3) received

a telegram informing it of Bowlby’s unfair labor practices

before it purchased Bowlby. Pet. App. 20a-24a.

2. Petitioner’s contention (Pet. 12-15) that the Board

erroneously failed to consider events occurring after

the commission of the unfair labor practices is without

merit. The Board found (Pet. App. 76a) that petitioner

had commenced its takeover of Bowlby without making

significant changes in Bowlby’s managerial and super-

visory force—which had committed numerous unfair

labor practices—and then, acting through one of the

’ Rather than disputing that it is a “successor” under the doctrine of

successorship articulated by this Court, petitioner urges (Pet. 22-24)

this Court to address “the farthest extent” of that doctrine. This case

does not present an occasion for doing so, because the Board’s exten-

sion of a Gissel bargaining order to petitioner was fully consistent with

precedent. See Carlton’s Market. 243 N.L.R.B. 837, 845 (1979), en-

forced, 642 F.2d 350 (9th Cir. 1981). Compare NLRB v. Cott Corp.,

578 F.2d 892, 893-896 (Ist Cir. 1978), denying enforcement to 232

N.L.R.B. 312 (1977) (finding extension of Gisse/ bargaining order to

successor inappropriate where successor hired all the predecessor’s

employees, remedied all of the predecessor’s Section 8(a)(1) and (3)

violations, 29 U.S.C. 158(a)(1) and (3), and committed no violations

of its Own).

11

predecessor’s supervisors, had unlawfully refused to hire

seven former Bowlby employees. Thus, “whatever might

be the case had [petitioner] wiped the slate clean and hired

an entirely new managerial and supervisory complement,

the employees here had received the plain message that

supporting the Union was a dangerous proposition

regardless of who the employer was” (id. at 49a-5S0a). Ac-

cordingly, it was reasonable for the Board to conclude

that, regardless of events occurring after the unfair labor

practices, a fair election was not possible and a bargaining

order should issue. NLRB v. Keystone Pretzel Bakery,

Inc., 696 F.2d 257, 265 (3d Cir. 1982); Bandag, Inc. v.

NLRB, 583 F.2d 765, 772 (Sth Cir. 1978); NLRB v. Ace

Comb Co., 342 F.2d 841, 844 (8th Cir. 1965); Granite City

Journal, 262 N.L.R.B. 1153, 1158 (1982).8

3. Likewise without merit is petitioner’s contention

(Pet. 16-18) that the Board could not enter a bargaining

order against petitioner without finding that the Union

was supported by the majority of petitioner’s employees.

The Board found that the Union enjoyed majority support

among Bowlby’s employees and that petitioner hired a

work force the majority of which had previously worked

for Bowlby. Pet. App. 49a-Sla, 76a. As the court below

recognized (id. at 36a), the Board was not required to

identify “the precise percentage of union support that ex-

isted in [petitioner’s] newly constituted unit.” A successor

® Petitioner refers to only two “significant” events that it claims the

ALJ did not consider: that petitioner did not hire “the two Bowlby of-

ficials who were most outspoken in espousing anti-union sentiment”;

and that, although petitioner hired seven supervisors who had com-

mitted unfair labor practices while employed by Bowlby, several of

these supervisors later left petitioner’s employ. Pet. 15. There is no

basis for petitioner’s assertion (ibid.) that the ALJ “apparently dis-

regard[ed]” these facts. These facts, in any event, could reasonably

have been accorded little significance.

12

employer’s bargaining obligation depends on its hire of a

majority of the predecessor’s employees, not on its hire of

a majority of union adherents. Fall River Dyeing &

Finishing Corp. v. NLRB, 482 U.S. 27, 41, 52 (1987).°

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

Acting Deputy General Counsel

ROBERT E. ALLEN

Associate General Counsel

NORTON J. COME 3

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

ROBERT F. MACE

Altorney

National Labor Relations Board

NOVEMBER 1990

* The court below went on to conclude that it was likely that a ma-

jority of petitioner’s employees would have signed the union petitions

but for petitioner’s discriminatory hiring. Pet. App. 36a-39a. This

conclusion was merely dictum in light of the cour& holding that the

Board was not required to determine the percentage of union

adherents in petitioner’s work force. Petitioner is therefore incorrect

in asserting (Pet. 18-22) that in reaching this conclusion the court

violated the principle of SEC v. Chenery Corp., 318 U.S. 80, 87

(1943).

ve US GOVERNMENT PRINTING OFFICE 1990—282-061/20200 .