Opposition Brief — Reichhold Chemicals, Inc. v. Teamsters Local Union No. 515

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rn eee GREP F. GPROAOL, JR.

— Bn the Supreme Court of the Gnited States

OCTOBER TERM, 1990

REICHHOLD CHEMICALS, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD AND

TEAMSTERS LOCAL UNION No. 515

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Depariment of Justice

4 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

LAURENCE S. ZAKSON

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether the court of appeals erred in setting aside, as

unsupported by substantial evidence, the National Labor

Relations Board’s determination that petitioner’s unfair

labor practice was not a cause of a strike by petitioner’s

employees.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Airport Parking Management v. NLRB, 720 F.2d

RSENS AE RGRE Ao na 9, 10

Brooks, Inc., 228 N.L.R.B. 1365 (1977) ......... 7

General Drivers and Helpers Union, Local 662 v.

NLRB, 302 F.2d 908 (D.C. Cir.), cert. denied,

es cae a cccktres'nboveve 7

Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814

eo ak wore tgie vak wea s 9

Mastro Plastics Corp. v. NLRB, 350 U.S. 270

a ks ose cK gov é.0.0:0 6 00 3

NLRB v. Cast Optics Corp., 458 F.2d 398 (3d Cir.),

cert. denied, 409 U.S. 850 (1972) .............. 7

NLRB vy. Coilenial Haven Nursing Home, Inc.,

SO ee es COTE oo ce ee civceccess 10, 11

NLRB v. Crystal Springs Shirt Corp. , 637 F.2d 399

SI Ss oa ss occ cas esecunavees 7,8

NLRB v. Pope Maintenance Corp., 573 F.2d 898

I gd, Os a wind ea awe ots 7,9

NLRB v. West Coast Casket Co., 205 F.2d 902

ED Bide ce a ede ey eh kseweey 10

Northern Wire Corp. v. NLRB, 887 F.2d 1313

er ia. en, As baka ee 6 Ko 9, 10

Road Sprinkler Fitters Local No. 669 v. NLRB, 681

F.2d 11 (D.C. Cir. 1982), cert. denied, 459 U.S.

Se eb yen tk Gneweses % 7, 8,9

Typoservice Corp., 203 N.L.R.B. 1180 (1973) .... 7

(111)

IV .

Cases — Continued: Page

Universal Camera Corp. v. NLRB, 340 U.S. 474

CP in wide che when eA Oe a ce 9

Winter Garden Citrus Products Cooperative v.

NLRB, 238 F.2d 128 (Sth Cir. 1956) ........... 10

Statutes:

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

et seq.:

= Weeey Fe U.S.C. BSR E) . on. cae ceves 3

Bo ol te Sok on, |: So ne 3

Be Ma. 28k. oa. eR ee ee 3,4

In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-609

REICHHOLD CHEMICALS, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD AND

TEAMSTERS LOCAL UNION No. 515

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A21)

is reported at 906 F.2d 719. The supplemental decision and

order of the National Labor Relations Board (Pet. App.

A22-A44) are reported at 288 N.L.R.B. 69; the Board’s

Original decision and order (Pet. App. A45-A103) are

reported at 277 N.L.R.B. 639.

JURISDICTION

The judgment of the court of appeals was entered on

June 12, 1990. A petition for rehearing was denied on

September 24, 1990. The petition for a writ of certiorari

was filed on September 24, 1990. The jurisdiction of this

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

(1)

STATEMENT

1. In November 1982, Teamsters Local Union No. 515

(Union) was certified as the bargaining representative for

petitioner’s production and maintenance employees. In

January 1983, petitioner and the Union began bargaining

for an initial agreement. Over the next 13 months, the par-

ties met in 29 separate bargaining sessions. The parties

reached agreement on a broad range of subjects.

Throughout the negotiations, however, the Union ob-

jected to petitioner’s insistence on including in the no-

strike clause a waiver of the employees’ right to engage in

unfair labor practice strikes. The Union also objected to a

proposal to include in the no-strike clause a provision,

known as the “no access” provision, that waived the

employees’ right to file charges with the Board if an unfair

labor practice strike occurred and employees were re-

placed or disciplined. During bargaining, the Union presi-

dent identified the no-strike clause and a management

rights proposal as strike issues. Although petitioner made

several concessions, it adhered to its demand for broad

language in the management rights and no-strike clauses.

Despite a narrowing of differences, the parties bargained to

impasse without reaching an agreement. Pet. App. A3-A4,

Al0, A27-A28, A36, AS8-A59, A73-A74, A76, A92.

In August 1983, several months into the negotiations,

the Union conducted a strike vote; on April 1, 1984, after

impasse had been reached, the Union did so again. At

both strike-vote meetings, the employees, at the urging of

the Union president, voted unanimously to authorize a

strike. During both meetings, the Union president dis-

cussed a number of petitioner’s proposals that he perceiv-

ed as objectionable. He criticized petitioner’s proposals as

waiving the employees’ right to challenge employer con-

duct during the term of the agreement, and specifically

objected to the proposed management rights and no-strike

clauses as “unreasonable,” “outrageous,” and unlike any

he had ever seen before. Pet. App. A3-A4, Al0, Al1-A12,

A34-A36, A76-A79.

Immediately after the second strike-authorization vote,

the employees began a strike. On April 6, 1984, the strike

ended with the employees’ unconditional offer to return to

work. Petitioner refused to reinstate 27 strikers who had

been permanently replaced. Pet. App. A4, A46, A77-A78,

A98-A99.

2. The Union filed charges alleging, inter alia, that

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

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

engaging in surface bargaining and by insisting to impasse

on the waiver of employees’ statutory rights. The charges

also alleged that those violations of Section 8(a)(5) and (1)

caused the strike, and thus rendered it an unfair labor

practice strike, rather than an economic strike. Under

Mastro Plastics Corp. vy. NLRB, 350 U.S. 270, 278 (1956),

unfair-labor-practice strikers are entitled to reinstatement

with back pay, even if the employer has hired permanent

replacements. Therefore, the charges alleged, petitioner’s

refusal to reinstate the 27 permanently replaced strikers

violated Section 8(a)(3) and (1) of the Act, 29 U.S.C.

158(a){3) and (1). Pet. App. A56-A57.

The Board, in disagreement with the administrative law

judge, found that the “totality of [petitioner’s) conduct

throughout the course of negotiations establishes that [it]

engaged in hard bargaining, rather than surface bar-

gaining.” Pet. App. A47. The Board also disagreed with the

judge’s finding that the proposed waiver of rights contained

in the no-strike clause was “an illegal bargaining subject.”

Id. at A49. Accordingly, the Board concluded that peti-

tioner “did not violate Section 8(a)(5)” and “the strike was

not an unfair labor practice strike.” Pet. App. A50-AS51.

In light of those findings, the Board also reversed the

ALJ’s finding that petitioner “violated Section 8(a)(3) by

permanently replacing its striking employees.” Pet. App.

ASI.

3. On the General Counsel’s motion for reconsidera-

tion of the Board’s Section 8(a)(5) findings, the Board

issued a supplemental decision and order. The Board reaf-

firmed its ruling that petitioner had not engaged in surface

bargaining, and that petitioner did not violate the Act by

bargaining to impasse on a proposal to waive the

employees’ right to engage in unfair labor practice strikes.

Pet. App. A22-A23, A31-A32.

On the issue whether it was lawful for petitioner to insist

to impasse on a waiver of the employees’ right of access to

the Board, however, the Board reversed its earlier ruling.

The Board concluded that the no-access provision con-

cerned a non-mandatory subject of bargaining; therefore,

petitioner’s insistence to impasse on that proposal violated

Section 8(a)(5) of the Act. Pet. App. A23, A32-A33. In

classifying the no-access provision as non-mandatory, the

Board noted that it is “contrary to a fundamental policy of

the Act and is unrelated to terms and conditions of

employment.” Jd. at A32.!

Although the Board found that petitioner had violated

the Act, it reaffirmed its previous finding that the strike

was an economic strike rather than an unfair labor prac-

tice strike. The Board explained that “the General Counsel

ha[d] not established the requisite causal connection be-

tween [petitioner’s] unlawful conduct and the employees’

decision to strike.” Pet. App. A36. The Board acknowl-

edged that the no-access provision was incorporated in the

' Because of this conclusion, the Board found “it unnecessary to

decide whether [the no-access provision] was an illegal, as distin-

guished from merely permissive, subject of bargaining.” Pet. App.

A33 n.19.

)

proposed no-strike clause; that the employees struck in

part in protest over petitioner’s proposed no-strike clause;

and that the employees voted to strike on the basis of the

Union president’s recommendation. /d. at A34-A36.

Nevertheless, in light of its finding that the no-access pro-

vision itself “was never discussed with employees at either

of the strike-vote meetings,” the Board “decline[d] to find

that this proposal played any part in the employees’ deci-

sion to strike.” Id. at A36.

4. The court of appeals affirmed the Board’s decision

except as to the finding of strike causation. On that issue,

the court concluded that the decision was not supported by

substantial evidence because the Board had improperly

focused on whether the employees voting to strike had

first-hand knowledge of the no-access provision and had

“ignore[d]” other evidence that “proves the point on causa-

tion.” Pet. App. All. Pointing out that “the union

representative’s reasons for calling or recommending a

strike may provide the basis for determining causation,”

id. at Al4, the court found that the employees had “voted

to strike solely pursuant to the Union President’s recom-

mendations” and that one of the president’s reasons for

recommending a strike was petitioner’s insistence to im-

passe on the no-access provision. /d. at Al1-A12.

The court rejected the Board’s view that, “because the

employees voted directly on the strike issue, their pre-

sumed lack of knowledge of the no-access provision is

fatal to their causation claim.” As an initial matter, the

court noted that at least five employees who participated

in the strike vote “presumably knew” of the proposal

because of their participation in bargaining sessions in

which the no-access issue was discussed. The court also

noted that the record was silent as to the knowlege of the

remaining employees because the administrative law judge

had prevented them from testifying about their reasons for

striking. Pet. App. Al2-A13.

Furthermore, the court stated, the Board’s position

overlooked that employees not only can “formally cede

authority to a union agent to call a strike,” but “can also

achieve the same result” by ratifying the union agent’s

recommendation. Pet. App. Al3-A14. “In either case, the

union representative’s reasons for calling or recommend-

ing a strike may provide the basis for determining causa-

tion.” Ju. at Al4. Having found that “the employees voted

to strike solely pursuant to the Union President’s recom-

mendation,” id. at All, and that his recommendation was

based in part on “his view that the provisions of the no-

strike’clause were Outrageous,” the court concluded that

the employees adopted “the Union leader’s judgment that

they should strike because of [petitioner’s] demand for a

no-access provision.” /d. at Al4. ;

Accordingly, the court set aside the Board’s determina-

tion On causation, and remanded the case to the Board for

modification of its order. Pet. App. Al5, A20-A21-?

ARGUMENT

The court’s disagreement with the Board concerning the

cause of the strike turns on differing assessments of the

particular facts of this case. Because the opinion neither

establishes novel principles of law nor conflicts with any

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

this Court’s review is not warranted.

? Judge Silberman concurred, noting that the court was “looking at

the issue on review as solely a sufficiency of the evidence question”

and that the Board’s decision did not appear to articulate any policy-

based reasons for the Board’s drawing the particular factual inferences

it did. Pet. App. A21.

1. a. It is settled that a strike is an unfair labor prac-

tice strike “if an unfair labor practice had anything to do

with causing” it. General Drivers and Helpers Union,

Local 662 v. NLRB, 302 F.2d 908, 911 (D.C. Cir.), cert.

denied, 371 U.S. 827 (1962). Accord NLRB v. Cast Optics

Corp., 458 F.2d 398, 407 (3d Cir.), cert. denied, 409 U.S.

850 (1972); NLRB v. Crystal Springs Shirt Corp., 637 F.2d

399, 404 (5th Cir. 1981). The Board, with court approval,

has held that there must be a demonstrable “causal con-

nection” between the unfair labor practice and the strike.

Typoservice Corp., 203 N.L.R.B. 1180, 1180 (1973); Road

Sprinkler Fitters Local No. 669 v. NLRB, 681 F.2d 11, 20

(D.C. Cir. 1982), cert. denied, 459 U.S. 1178 (1983);

NLRB v. Pope Maintenance Corp., 573 F.2d 898, 906 (Sth

Cir. 1978). Accordingly, the Board has held that it must

engage in a case-by-case “search” for the actual causes of a

strike. Brooks, Inc., 228 N.L.R.B 1365, 1367 n.12 (1977),

enforced in relevant part, 593 F.2d 936 (10th Cir. 1979).

‘When the employees themselves make the decision to

strike, “the employees’ reasons for striking” are considered

“good evidence” of the strike’s cause. Brooks, Inc., 228

N.L.R.B. at 1367 n.12. But, when employees have ceded

decisionmaking authority to their union representatives,

the focal point of the Board’s inquiry is not “the

employees’ reasons for striking but rather * * * the ‘im-

petus for the Union’s decision to strike.’ ” /bid., quoting

Typoservice Corp., 203 N.L.R.B. 1180, 1180 (1973). The

Board applied that principle in Brooks, Inc., stating that

“it was the Union that called the strike and it, indeed, did

so in response to Respondent’s unfair labor practices”; in

that situation the “employees’ motivation” was not “the

decisive matter.” 228 N.L.R.B. at 1367 n.12.

b. In this case, the Board found that, since the Union

asked the employees to vote on the strike, the employees

had retained decisionmaking authority with respect to the

strike. Accordingly, the Board gave controlling weight .to

testimony indicating that although a number of specific

management proposals were mentioned at the strike

meetings as reasons to Strike, there was no explicit men-

tion of the no-access provision. Pet. App. A36.

The court of appeals, on the other hand, found that the

Board had overlooked the circumstance that the

employees, in voting to strike, had relied “solely” on the

Union President’s recommendation. Pet. App. All. In the

court’s view, the employees had effectively ceded authority

to the Union to call a strike for the reasons it deemed ap-

propriate. Because the Union president was motivated to

recommend a strike at least in part by his belief that the

no-access provision was “outrageous,” the court con-

cluded that the strike was caused by an unfair labor prac-

tice. Id. at Al3-A14.3

Contrary to the contention of petitioner (Pet. 5-8) and

amicus The Society of the Plastics Industry, Inc. (Br. 5),

the court of appeals did not establish a new rule that either

renders irrelevant the employees’ motivation for striking

or makes the subjective intention of union officials the

determinative factor in ascertaining the cause of a strike.

Rather, the court simply disagreed with the Board’s assess-

ment of the evidence, finding, contrary to the Board, that

the employees relied on the Union’s judgment in deciding

whether to strike.* While we believe that the court should

> To qualify as an unfair-labor-practice strike, the unfair labor

practice need not be the sole impetus for the strike; it need only be a

“contributing cause.” See, e.g., NLRB v. Crystal Springs Shirt Corp.,

637 F.2d at 404; Road Sprinkler Fitters Local No. 669 v. NLRB, 681

F.2d at 20. :

* The court of appeals underscored that it agreed with the Board

that the issue on review was an “evidentiary” one because “neither the

Board’s decisions nor its brief suggests that the Board meant to en-

dorse a /ega/ principle that an employer’s unlawful insistence on a

not have substituted its judgment for that of the Board,

the disagreement between the Board and the court

presents—as the court itself recognized (see note 4,

supra) —only an evidentiary issue, which does not warrant

review by this Court. See Universal Camera Corp. v.

NLRB, 340 U.S. 474, 491 (1951).

Nor is the court of appeals’ holding in tension with the

principle that “[m]ere awareness of unfair labor practices

is insufficient to establish th{e] causal connection” be-

tween the practices and the decision to strike, Road

Sprinkler Fitters Local No. 669 v. NLRB, 681 F.2d at 20,

as petitioner (Pet. 9) and amicus Capital Associated In-

dustries, Inc. (Br. 7) assert. Petitioner argues that if “mere

awareness” is insufficient, “no awareness” on _ the

employees’ part must also be insufficient (Pet. 9), but that

argument ignores that, as the court of appeals read the

record, the causal inquiry in this case focuses on the fac-

tors prompting the Union’s president to recommend a

strike. It is uncontested that he was aware of and

motivated by petitioner’s unfair labor practice. In view of

the court of appeals’ determination that the employees had

effectively ceded authority to the Union to decide whether

to strike, the employees’ asserted lack of awareness of the

unfair labor practice is not germane.

2. Petitioner errs in asserting (Pet. 8-10) that the deci-

sion below conflicts with Northern Wire Corp. v. NLRB,

887 F.2d 1313, 1320 (7th Cir. 1989); Airport Parking Man-

agement v. NLRB, 720 F.2d 610, 614 (9th Cir. 1983);

NLRB vy. Pope Maintenance Corp., 573 F.2d 898, 906 &

n.21 (Sth Cir. 1978); and Larand Leisurelies, Inc. v.

NLRB, 523 F.2d 814, 820-821 (6th Cir. 1975). Although

nonmandatory subject can never be a contributing cause of [a] strike

absent clear evidence that the employees were fully aware of the

nature of the offending contract demand.” Pet. App. A6-A7 n.2.

the courts in those cases considered the employees’ reasons

for striking, none of those decisions establishes a general

principle that the union’s motivation in calling a strike can

never be determinative of causation.’ Those cases simply

did not involve the causation analysis that is appropriate

when the union is effectively entrusted with authority to

call a strike.

Finally, petitioner’s reliance (Pet. 10-11) on Winter

Garden Citrus Products Cooperative v. NLRB, 238 F.2d

128 (Sth Cir. 1956), and NLRB v. Colonial Haven Nursing

Home, Inc., 542 F.2d 691, 704-707 (7th Cir. 1976), is also

misplaced. In Winter Garden Citrus Products, the court

rejected the union representative’s asserted reasons for the

strike, finding that the actual course of bargaining re-

vealed that the true issues motivating the strike were “at

war” with the reasons asserted by the union representative

in his written communications to the employer. 238 F.2d

at 130.

Similarly, in Colonial Haven Nursing Home, the court

found that, despite conclusory testimony by the union

representative and the employees that the strike was in

protest of employer unfair labor practices, the entirety of

their testimony illustrated that the strike was precipitated

by their desire that the employer recognize and bargain

with the union. 542 F.2d at 705. The only unfair labor

5 Indeed, to the degree they address the issue at all, these cases seem

to suggest that the union’s reasons are, in fact, pertinent. In Northern

Wire, for instance, the court, in finding the strike to be an unfair labor

practice strike, relied in part, 887 F.2d at 1320, on the bargaining-

table statements of a union representative about the possible causes of

a strike —the very type of evidence relied upon by the court here. See

Pet. App. All, Al3-Al4. In Airport Parking Management, 720 F.2d

at 614, the court cited NLRB v. West Coast Casket Co. , 205 F.2d 902,

907 (9th Cir. 1953), for the proposition that a union business represen-

tative’s testimony as to the reasons for a strike constitutes “substantial

evidence” of the strike’s causation.

practices that occurred before the strike were relatively

minor and removed in time from the employees’ decision

to strike, while the strike meeting itself followed on the

heels of the Board’s dismissal of the union’s representation

petition. Id. at 694-695, 705. Here, by contrast, the court

of appeals found it “undisputed” that the unfair labor

practices played a role in the Union president’s decision to

recommend a strike, Pet. App. Al2, and the record sup-

ports that analysis. Throughout the bargaining processs,

the president clearly informed petitioner that he viewed

the no-access clause as both a genuine impediment to

agreement and a strike-worthy issue.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.