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

| Supreme VOUTL, U.de |

rrLiae

NOV 28 1990

JOSEPH F. SPANIQL, JR

(4) CLERK

No. 90-455

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1990

GENERAL Woop PRESERVING COMPANY, INC.,

Petitioner,

wo

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITIONER’S REPLY BRIEF

CHARLES A. EDWARDS

GRAHAM & JAMES

P.O. Box 1951

Raleigh, North Carolina 27602

(919) 821-8000

Attorney for Petitioner

RR A cn Sm

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES

Carlton’s Market, 243 NLRB 837 (1979), enf'd sub

nom. NLRB v. Davis, 642 F.2d 350 (9th Cir.

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(1DTS) .ccccrccccccccccscnncccsccsssssonscsncasssnsssnesossoesoecsanss

Fall River Dyeing & Finishing Corp. v. NLRB, 482

UB. BT CRI ercccsseccncsnsisancidssensanstensatentetninsesss

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

(2OTS) cccceninsasillscnssscancasssasechaneiatiansinammabahaswiinss.

Howard Johnson Co. v. Detroit Local Joint Exec-

utive Board, 417 U.S. 249 (1974) ...................

John Wiley & Sons, Inc. v. Livingston, 376 U.S.

BOD CEE cacecsccsssnedncsscnnisastiieiaatadeaanetamasateksancens

NLRB v. Brown, 380 U.S. 278 (1965) ...................

NLRi: v. Burns International Security Services,

Bc., OG UBB. STR CH carnsntieictsienmsinnsiveyss-

NLRB v. Cott Corp., 578 F.2d 892 (1st Cir.

STUD viccnucisconsssssetnsasdasanacaneeniaiganaidaaiaainiasenans

(TODD occcnansasoncsrcassssoncbentsiennnmnintiomadbannieaicntsasns

Ponn Distributing, Inc., 203 NLRB 482 (1978) .....

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

Page

iiss i

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-455

GENERAL WooD PRESERVING CoMPANY, INC.,

Petitioner,

vs

NATIONAL LABOR RELATIONS BOARD,

Respondent.

SS

On Petition For Writ of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

PETITIONER’S REPLY BRIEF

No argument advanced in Respondent’s Brief In

Opposition counsels against this Court’s granting the

Petition For Writ Of Certiorari. Despite Board

Counsel’s attempt to relegate the issues presented in

this case to the realm of the ‘‘narrow”’, ‘‘fact-specific”’

and “‘fact-bound’’, Brief In Opposition at 7-8, this case

in fact presents issues which have been the subject

of persistent and divisive debate in the Courts of

Appeals. It also represents the first instance in which

card-based bargaining order liability imposed upon a

successor employer has been presented to this Court.!

‘Carlton’s Market, 243 NLRB 837 (1979), enfd sub nom.

2

Finally, Board Counsel urges this Court to endorse

a method of administrative review which so overstates

the breadth of the Board’s remedial discretion as to

render its administrative adjudication altogether un-

reviewable.

1. By characterizing as an “assessment” the Board’s

legal conclusion that the possibility of conducting a

fair election was slight, Board Counsel seeks to place

this conclusion well within the Board’s remedial dis-

cretion and therefore beyond the authority of a re-

viewing court to disturb. Brief In Opposition at 9 n.

4. However, this determination cannot withstand ap-

pellate scrutiny as it is unaccompanied by the required

factual foundation. The Board conducted no appraisal

of the effects of the unfair labor practices upon the

workforce and made no estimate respecting the fu-

tility of traditional remedies as required by Gissel.

395 U.S. at 614; see Pet. App. 75a-76a.

While Petitioner agrees that the choice of remedy

is committed to the Board’s expertise, that expertise

must be exercised against a factual backdrop which

is sufficiently clear to enable a reviewing court in-

telligently and independently to ascertain whether the

agency is in compliance with the directives of this

Court. As stated in Gissel:

NLRB v. Davis, 642 F.2d 350 (9th Cir. 1981), concerned a rep-

resentation petition filed simultaneously with the successor’s as-

sumption of control of the grocery, and the predecessor was not

found to have committed any unfair labor practices. In NLRB

v. Cott Corp., 578 F.2d 892 (1st Cir. 1978), a bargaining order

had issued against the predecessor long before the successor

took control of the company. See Ponn Distributing, Inc., 203

NLRB 482 (1973). Even in this circumstance, the court of appeals

refused to impose the bargaining order upon the successor.

NLRB v. Cott Corp., 578 F.2d at 896.

It is for the Board and not the courts, how-

ever, to make that determination, based on

its expert estimate as to the effects on the

election process of unfair labor practices of

varying intensity.

Gissel, 395 U.S. at 612 n. 32 (emphasis-supplied).

The failure of the Board to offer any factual basis

for its ‘“‘assessment”’ of the likelihood of a fair election

constitutes a gross and patent analytical omission.

The Fourth Circuit clearly erred in allowing this de-

ficiency to go uncorrected.

The Board’s conclusion that General Wood had no-

tice of the commission of serious unfair labor prac-

tices is similarly flawed. As the Fourth Circuit’s

discussion of this issue amply illustrates, the General

Counsel presented so very few facts relating to this

portion of the Board’s case that reliance upon spec-

ulation and conjecture is necessary to resolve this

pivotal issue. Pet. App. 20a-27a. Indeed, most of the

‘“‘evidence”’ to which Board Counsel refers is no more

than the unsupported hypotheses found in the opinion

of the Fourth Circuit. Brief In Opposition at 10.

In sum, Board Counsel’s analysis reflects a view of

the administrative process in which there exist (a)

unreviewable agency factual findings; (b) “‘fact-spe-

cific’ and “fact-driven’’ “‘determinations’” and “as-

sessments”’ which are shielded from appellate review,

even when they are made without benefit of any ar-

ticulated evidentiary basis; and (c) remedial alterna-

tives committed to the Board’s broad discretion. Such

a formalistic and stultified perspective cannot be rec-

onciled with the prior decisions of this Court. NLRB

v. Brown, 380 U.S. 278, 292 (1965); Detroit Edison

Co. v. NLRB, 440 U.S. 301, 316 (1979).

2. Board Counsel challenges Petitioner’s argument

relating to the Board’s failure to prove the union’s

majority status, Pet. 16-18, with the following non

sequitur: ‘‘A successor employer’s bargaining obliga-

tion depends on its hire of a majority of the prede-

cessor’s employees, not on its hire of a majority of

union adherents.” Brief In Opposition at 11-12. How-

ever accurate this statement might be as a general

proposition, it has no re’evance to the situation here

presented, one in which the predecessor’s employees

had never chosen the union as their exclusive bar-

gaining representative.

Each of this Court’s previous successorship

opinions’? relates to a certified union with a pre-ex-

isting collective bargaining relationship with the pred-

ecessor employer. Indeed, one of the central issues

in Fall River was whether the certification had to be

“recent” in order to carry forward the presumption

of majority status, inasmuch as the Burns successor-

ship test contained language relative to “recent cert-

ification.”’ Fall River, 482 U.S. at 36-37. As this Court

explained, certification carries with it a presumption

of majo ity status, and ‘“‘where ... the union has a

rebuttable presumption of majority status, this status

2 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964);

NLRB v. Burns Internationa] Security Services, Inc., 406 U.S.

272 (1972); Golden State Bottling Co. v. NLRB, 414 U.S. 168

(1973); Howard Johnson Co. v. Detroit Local Joint Executive

Board, 417 U.S. 249 (1974); Fall River Dyeing & Finishing Corp.

v. NLRB, 482 U.S. 27 (1987).

continues despite the change in employers.” 482 U.S.

at 41.’

Because Bowlby had never been subject to a bar-

gaining obligation and therefore the union enjoyed no

presumption of majority status, the Fourth Circuit’s

strained arithmetic exercise aimed at establishing ma-

jority union support in the proposed unit is not dic-

tum, as Board Counsel claims. Brief In Opposition at

12 n. 9. Rather, it is clear that the Circuit Court,

implicitly conceding that the Board’s analysis in this

regard was flawed, advanced two distinct theories

which would have the effect of salvaging the agency’s

imposition of a bargaining order against General

Wood. Under the court’s first proposal, the manipu-

lation of the composition of the proposed bargaining

unit, including the constructive hiring and dismissal

of employees, produced a bare majority of employees

who at one time had signed a petition seeking the

opportunity to vote in a representation election. Pet.

App. 36a-39a.

The second thesis is even more extraordinary: The

court concludes that General Wood’s failure to hire

seven signatories to the petitions constituted ‘“‘hall-

mark violations”, warranting a bargaining order even

in the absence of proof of majority status. Pet. App.

*If, as this Court said in Fall River, the Board’s analysis in

a given case must “keep[jin mind the question ‘whether those

employees who have been retained wil] understandably view their

job situations as essentially unaltered,’ Fall River, 482 U.S. at

43, the employees’ perspective in this case has been wholly dis-

regarded by the Board and the court below. Bowlby employees

were not represented by a union; they had never voted on union

representation; consequently they had no “legitimate expecta-

tions in continued representation by their union.”’ Jd.

41a-44a. Neither of these alternative justifications can

find support in, or be premised upon, the agency de-

cisions under review. Consequently, General Wood’s

reliance upon SEC v. Chenery Corp., 318 U.S. 80, 87

(1943), is entirely appropriate, and Board Counsel’s

attempted dismissal of that argument is without sub-

stance.

In conclusion, Board Counsel’s attempt to portray

the issues presented by this case as disputes of fact,

unworthy of review by this Court, is unavailing. The

Petition presents this Court with the opportunity to

resolve longstanding differences among the circuit

courts respecting review of Board action and to clar-

ify the contours of successorship analysis. The petition

for writ of certiorari should be granted.

Respectfully submitted,

CHARLES A. EDWARDS

GRAHAM & JAMES

P.O. Box 1951

Raleigh, North Carolina 27602

(919) 821-8000

Attorney for Petitioner