# Opposition Brief — Reichhold Chemicals, Inc. v. Teamsters Local Union No. 515 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2964%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1053 ## Text O | wom 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 ee 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 I Ae A aca t pived eee Waker 1 GS nae eet a ai cs 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 9 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. 10 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. 1] 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. 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 Deputy Associate General Counsel LINDA SHER Assistant General Counsel LAURENCE S. ZAKSON Altorney National Labor Relations Board DECEMBER 1990 tr U.S. GOVERNMENT PRINTING OFFICE: 1990—282-061/20249 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2964%3A3. Public record. 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