Opposition Brief — Toledo Blade Co. v. Toledo Typographical Union No. 63

No. 90-618 J.

I

aa aida Se gird

Supreme Court, U.S.

| ae Bee ee

nA DEC WS 3990

PANIOL, JR.

N THE .

Supreme Court of the United States

OCTOBER TERM, 1990

TOLEDO BLADE COMPANY,

‘ Petitioner,

TOLEDO TYPOGRAPHICAL UNION No. 63,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

On Petition for Leave to Intervene and

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

Of Counsel:

MARSHA BERZON

177 Post Street

San Francisco, CA 94108

RICHARD ROSENBLATT

8085 E. Prentice Avenue

Englewood, CO 80111

SAMUEL C. MCKNIGHT

Suite 614

26211 Central Park Boulevard

Southfield, MI 48076-4139

JAMES B. COPPESS

(Counsel of Record)

1925 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 728-2456

Attorneys for

Toledo Typographical Union

WILSON - EPzs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

@ > co

43

TABLE OF CONTENTS

RTE OU BEE CIID ici cscnscscccccinsenensorercsonseonsess

ARGUMENT ...

eee etree ee eee ee ee eee ee eee eee eee eee

I. THE MOTION FOR LEAVE TO INTERVENE

I REE: SUMMER IIID xs sieenceinesirnnccnseegsiirivatecoinsoenes

II. THE PETITION FOR CERTIORARI SHOULD

IN icillibincihsceclidadicienticincciiuibiionsecsesndamceneiae

CONCLUSION

rrr t eee Tee eee ee eee

ii

TABLE OF AUTHORITIES

CASES: Page

American Ship Bldg. Co. v. NLRB, 380 U.S. 300

CRY iscsi cin apie dccentaiecemeah teaches leet les elie ean, 9

Banks v. Chicago Grain Trimmers Ass’n, 390 U.S.

GBD CRO icin a irae 4,5

Hunter v. Ohio ex rel. Miller, 396 U.S. 879 (1969) .. 4

Indianapolis Power & Light Co. v. NLRB, 898 F.2d

GB4 (Tie Cie: BOO cence 7

International Union, U.A.W. v. Scofield, 382 U.S.

DOB CAIIID © saccinictesdccseeiciaoatesse ticles 3

Local Union No. 246, Laborers’ Int’l Union v.

Bickerstaff Clay Products Co., US. :

110: Ge a eit erties 6

New York v. Smith, 469 U.S. 1227 (1985) ............... 5

NLRB v. American National Insurance Co., 343

UE, Be Ce iia aceite cicr eee 9

NLRB v. Curtin Matheson Scientific, Inc., ——

U.S. big ts Bh Oe | 6

NLRB v. Wooster Div. of Borg-Warner Corp., 356

U.S. SOR CRE vce a el ee ei ess 1, 8,9

Pyramid Lake Paiute Tribe of Indiana v. Truckee-

Carson Irrigation District, 464 U.S. 863 (1983)... 4,5

Skil Corp. v. Millers Falls Co., 541 F.2d 554 (6th

Che, RUG ince viccccccuectencuan nae aaeeaenn 7

United Airlines Inc. v. McDonald, 482 U.S. 385

CRO GD vc sdiccctiisicisscinciiccabesiuscpctehaiishaop aban tat uiia alg iaacana 4

STATUTES AND RULES:

Oo ik ae crite 3,

gk Tf SA Se nae ese en i eae et

SO ER etic wesietrciecsecinncacnisnndcngeernianeicinenianianies

Ci ae Ne CU Since tater ctitcenass 1,

ae i eic bisects death sthiciatognendlapilinibcnicians

pgs 1 S|” Saee RDRROEE ate SRR wed Lhe acs

I I a diana deicimaeacigstulensinesntzdnoptaaemenes

pg EE oo 2S ARERR ASR ee maori eae ee eee

Ng pp & SA ee eee aiden

D.C. Cir. Rule 11(e) (3) ...... RA Tae Sol eR INT RRO

>

i)

wWCwwwmomowowacn

In THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-618

TOLEDO BLADE COMPANY,

. Petitioner,

TOLEDO TYPOGRAPHICAL UNION NO. 63,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

On Petition for Leave to Intervene and

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The Toledo Typographical Union is the exclusive rep-

resentative of an appropriate collective bargaining unit

of Toledo Blade Company employees. Negotiations over

a new collective bargaining agreement were brought to

an impasse by Toledo Blade’s demand that the employer

be allowed to deal directly with the employees about re-

tirement incentives and to exclude the Union from those

individual negotiations. Pet. App. 1A-2A.

The Union filed unfair labor practices charges with the

National Labor Relations Board alleging that, by insist-

ing as a condition of agreement on the right to bargain

2

directly with individual employees, Toledo Blade had vio-

lated § 8(a) (5) of the National Labor Relations Act, as

amended. Finding merit in the Union’s ciaim, the Gen-

eral Counsel of the National Labor Relations Board is-

sued a complaint charging Toledo Blade with having

failed to bargain in good faith. Pet. App. 3A.

Over a dissent by Chairman Stephens, the NLRB dis-

missed the General Counsel’s complaint. Pet. App. 5B.

The Board majority concluded that the employer’s de-

mand for direct dealing was a mandatory subject of bar-

gaining, over which a party to collective bargaining

could insist to impasse. Pet. App. 3B-4B. In his dissent-

ing opinion, Chairman Stephens maintained that Toledo

Blade’s proposal for individual bargaining was a per-

missive subject of bargaining under NLRB v. Wooster

Div. of Borg-Warner Corp., 356 U.S. 342 (1958). Pet.

App. 13B-16B.

The Union petitioned the U.S. Court of Appeals for the

District of Columbia Circuit for review of the Board’s

decision. In a4 unanimous decision, a panel of that court

(D.H. Ginsburg, Sentelle & Thomas, JJ.) granted the

Union’s petition for review. Pet. App. A. In agreemeiit

with Chairman Stephens’s dissenting opinion, the court

of appeals concluded that Toledo Blade’s direct dealing

proposal is a permissive subject of bargaining under

Borg-Warner. Pet. App. 8A.

The court below remanded this case to the Board, with

directions to take further action consistent with court’s

conclusion that Toledo Blade had violated § 8(a) (5) of

the NLRA. Pet. App. 9A. The NLRB accepted the

court’s remand, and did not petition for a writ of cer-

tiorari.

Toledo Blade, which did not intervene in the proceed-

ings before the court of appeals, has moved for icave te

intervene in this Court for purposes of filing a petition

for certiorari, and has, at the same time, conditionally

filed such a petition. Pet. 6.

3

ARGUMENT

In point 1 below, we show that Toledo Blade’s motion

for leave to intervene should be denied. In point 2 below,

we show that, if intervention is allowed, the petition for

certiorari should be denied.

I. THE MOTION FOR LEAVE TO INTERVENE

SHOULD BE DENIED. ;

(a) “Under §1254(1) of the Judicial Code, only a

‘party’ to a case in the Court of Appeals may seek review

here.” International Union, U.A.W. v. Scofield, 382 U.S.

205, 208-209 (1965) (footnote omitted). That require-

ment is a statutory limit on the Court’s jurisdiction. Id.

at 208."

Toledo Blade could have intervened in the proceedings

below as a matter of right. International Union U.A.W.

v. Scofield, supra, 382 U.S. at 212-2172 At no point in

the proceedings below did Toledo Blade seek to do so.*

1 Scofield addressed the right of a successful party before the

NLRB to intervene in a court of appeals proceeding challenging the

Board’s decision. 382 U.S. at 207. Because the union petitioner in

that case had sought and been denied intervention in the court of

appeals, the Court faced “[a] threshold question concern[ing]

[its] jurisdiction to grant certiorari” on a petition filed by a non-

party. Jd. at 208. The Court recognized that as a non-party the

union “would not have been entitled to file a petition to review a

judgment on the merits by the Court of Appeals,” but held that, on

the union’s petition, “§ 1254(1) permits us to review the orders

denying intervention.” Id. at 209 (emphasis added).

2 We note that intervention at the beginning of those proceedings

would have permitted Toledo Blade to protect its rights without

any commitment to active participaion in he case. See D.C. Cir.

Rule 11(e) (3).

3 Even though Toledo Blade did not take the simple step of inter-

vening within the time allowed by Rule 15(d), F.R.A.P., the em-

ployer could have requested intervention in the court of appeals

after entry of the judgment. See Rules 2 & 26(b), F.R.A.P. This

Court has held that such post-judgment intervention for the purpose

4

Rather than seeking party status through the methods

set out in the Rules, Toledo Blade requests leave to in-

tervene in this Court in order to file a petition for cer-

tiorari. With a single narrow exception—not applicable

here—this Court does not permit a person affected by a

proceeding to lay back in that way and enter its first

appellate appearance in this Court.

(b) So far as our research shows, there are only two

cases in which a non-party has been permitted to inter-

vene in this Court to file a petition for certiorari under

§ 1254(1). Banks v. Chicago Grain Trimmers Ass’n, 390

U.S. 459 (1968); Pyramid Lake Paiute Tribe of Indiana

v. Truckee-Carson Irrigation District, 464 U.S. 863

(1983).

In both cases, the petitioner had unsuccessfully sought

to intervene in the lower courts before seeking to inter-

vene in this Court. Banks v. Chicago Grain Trimmers

Ass’n, Oct. Term 1967, No. 59, Petition for Leave to

Intervene and Petition for a Writ of Certiorari 9-10;

Pyramid Lake Paiute Tribe of Indiana v. Truckee-

Carson Irrigation District, No. 82-1723, Petition for

Leave to Intervene and Petition for a Writ of Certiorari

10.

And in both cases, the United States, which had rep-

resented the interests of the petitioners in the lower

courts, filed a brief in this Court supporting intervention.

Banks v. Chicago Grain Trimmers Ass’n, Oct. Term 1967,

No. 59, Memorandum for the Deputy Commissioner (De-

partment of Labor) 2-3; Pyramid Lake Paiute Tribe of

Indiana v. Truckee-Carson Irrigation District, No. 82-

1723, Brief for the United States in Response to Petition

to Intervene and in Opposition to Petition for a Writ of

Certiorari 10-11 & 13-14.‘

appeal is perfectly appropriate. United Airlines Inc. v. McDonald,

432 U.S. 385, 395-396 & n.16 (1977).

4In Hunter v. Ohio ex rel. Miller, 396 U.S. 879 (1969), a non-

party was permitted to intervene to file a petition of certiorari

5

j

In Banks, the Court requested that the Solicitor Gen-

eral file a brief in response to the petitions to intervene

and for certiorari. 386 U.S. 1002 (1967). Supporting the

petitioner’s request to intervene, the Solicitor General

argued that the petitioner had been the real party in in-

terest in the lower courts, and thus was a “party” within

the meaning of 28 U.S.C. § 1254(1). Memorandum for

the Deputy Commissioner (Department of Labor) 2-3.5

The Solicitor General also argued that “the petition could

be viewed as seeking review not only of the court of ap-

peals’ judgment but also of the refusal to permit her to

intervene,” and that the Court’s jurisdiction to review

the lower court’s denial of intervention would extend to

the merits of the lower court’s decision. Jd. at 3 n.1. The

Court granted the motion to intervene and the petition

for certiorari. 389 U.S. 813 (1967).®

pursuant to § 1257 of the Judicial Code, which differs from § 1254

in not expressly requiring that a “party” file the petition. Equally

to the point, Hunter is essentially identical to Banks and Pyramid

Lake Paiute Tribe in that the petitioner had unsuccesssfully sought

to intervene in the lower courts and the government respondent

consented to the petitioner’s intervention in this Court. See also

New York v. Smith, 469 U.S. 1227 (1985) (state attorney general

permitted to intervene to file a petition for certiorari pursuant to

§ 1257 where the county district attorney, a party to the criminal

prosecution, also filed a petition for certiorari).

5 Banks began as a suit against the Deputy Commissioner of

Labor to set aside an award of death benefits under the Longshore-

men’s and Harbor Workers’ Compensation Act, and, as the Solicitor

General explained, “the procedure whereby the award is defended

by the government in the courts is not designed to vindicate any

independent governmental interest, but, rather, to remove the bur-

dens of litigation from the shoulders of the compensation claim-

ants, who are rarely individuals of means.” Id. at 3.

6 The Solicitor General advanced similar arguments on behalf of

intervention in Pyramid Lake Paiute Tribe of Indiana v. Truckee-

Carson Irrigation District, supra. The Solicitor General noted that

intervention had been denied by the lower courts on the mistaken

grounds that the petitioner did not have an interest in the pro-

ceedings, Brief for the United States 10-11, and also noted that

6

(c) The narrowness of the Banks exception is demon-

strated by the Court’s denial of the union’s request to

intervene to file a petition for certiorari in Local Union

No. 246, Laborers’ Int’l Union v. Bickerstaff Clay Prod-

ucts Co., U.S. ——, 110 S.Ct. 292 (1989). The

petitioner in Bickerstaff argued that, as the charging

party before the NLRB, the union stood in the same posi-

tion as the petitioner in Banks. Because the union’s

charge in Bickerstaff was sustained by the Board, the

NLRB General Counsel continued to prosecute the union’s

case in the court of appeals, arguably making the union

the real party in interest to those proceedings. Petition

for Leave to Intervene 8-12. Moreover, the question pre-

sented by the union’s certiorari petition in Bickerstaff

was identical to the question then pending before the

Court in NLRB v. Curtin Matheson Scientific, Inc., ——

U.S. ——, 110 8.Ct. 1542 (1990).

But—in contrast to Banks and Pyramid Lake Paiute

Tribe—in Bickerstaff the union had not attempted to in-

tervene in the lower court, a fact noted by the Solicitor

General in opposing intervention. Brief for the National

Labor Relations Board in Opposition 6. The Court denied

both the request to intervene and the certiorari petition

(thereby refusing to hold the union’s petition pending the

decision in Curtin Matheson). 110 8.Ct. 292.

(d) Toledo Blade’s argument for intervention is not

nearly as strong as the intervention argument advanced

by the union—and rejected—in Bickerstaff. The pro-

intervention had been denied by the lower courts in part on the

alternative ground that the petitioner’s interests were represented

by the United States, id. at 13-14. As this was no longer so, be-

cause of the government’s decision not to petition for certiorari, the

Solicitor General suggested that intervention by the petitioner for

the purpose of filing a petition for certiorari was appropriate. /d.

While consenting to intervention, the United States opposed the

petition for certiorari. The Court allowed intervention and the

filing of the petition, but denied the writ. 464 U.S. 879 (1969).

ceedings below were not brought on behalf of Toledo

Blade. Indeed, those proceedings began as—and on re-

mand have once again become—a prosecution of Toledo

Blade for unfair labor practices. Moreover, here, as in

Bickerstaff, no attempt to intervene was made in the

court below. Finally, as we demonstrate in point 2, the

question presented by Toledo Blade’s certiorari petition

is not one presently before the Court or otherwise worthy

of its consideration.

Toledo Blade suggests that if its intervention motion

is denied the employer will “circuit shop” by petitioning

the Sixth Circuit to review the Board’s decision on re-

mand. Pet. 6. The wasted judicial effort Toledo Blade

warns of, should the employer take this course, id., will

not occur. Even if Toledo Blade petitions for review in

the Sixth Circuit, that court will follow the District of

Columbia Circuit’s decision as the law of the case. See,

e.g., Indianapolis Power & Light Co. v. NLRB, 898 F.2d

524, 528-529 (7th Cir. 1990). See also Skil Corp. v.

Millers Falls Co., 541 F.2d 554, 558 (6th Cir. 1976).

Aside from this empty threat, no other basis has been

advanced by Toledo Blade for this Court to take the ex-

traordinary step of allowing the employer to intervene

here for the purpose of filing a petition for certiorari.

II. THE PETITION FOR CERTIORARI SHOULD BE

DENIED.

The question presented by the Toledo Blade’s certiorari

petition—whether an employer may insist on bargaining

over a proposal giving it the right to engage in direct

negotiations with individual employees over retirement

incentives—is answered by the plain language of the

statute. As the court of appeals has correctly applied the

plain statutory language, there is no call for this Court

to review the lower court’s decision, even if it did have

jurisdiction to do so.

8

Section 7 of the Act states that “[e]mployees shall have

the right . . . to bargain collectively through representa-

tives of their own choosing... .” 29 U.S.C. § 157 (em-

phasis added). Section 9(a) provides that “[r]epresen-

tatives designated or selected for the purposes of collec-

tive bargaining by the majority of the employees in a

unit appropriate for such purposes, shall be the exclusive

representatives of all the employees in such unit for the

purpose of collective bargaining in respect to rates of

pay, wages, hours of employment, or other conditions. of

e~vloyment....” 29 U.S.C. § 159(a) (emphasis added).

Section 8(a) (5) makes it an unfair labor practice for an

employer to “refuse to bargain collectively with the rep-

resentatives of his employees... .” 29 U.S.C. § 158(a)

(5). And § 8(d) defines “to bargain collectively” as “the

performance of the mutual obligation of the employer

and the representative of the employees to meet at rea-

sonable times and confer in good faith with respect to

wages, hours, and other terms and conditions of employ-

ment....” 29 U.S.C. § 158(d) (emphasis added).

Consistent with this statutory language, this Court

has held that an employer may not bargain to impasse

over a demand that “substantially modifies the collective-

bargaining system provided for in the statute by weak-

ening the independence of the ‘representative’ chosen by

the employees [, and] enables the employer, in effect, to

deal with its employees rather than with their statutory

representative.” NLRB v. Borg-Warner, supra, 356 U.S.

at 350.7 As Judge Douglas Ginsburg explains, in his

opinion for the court below, Toledo Blade’s demand for

individual bargaining is more intrusive upon the statu-

tory system of collective bargaining than the ballot clause

demand held unlawful in Borg-Warner:

7 The specific demand at issue in Borg-Warner was for a “ballot

clause” requiring the union to hold an advisory vote on the employ-

er’s last offer to settle any non-arbitrable grievance before calling a

strike. 356 U.S. at 345-346.

9

While the Court in Borg-Warner observed that the

ballot clause would “enable the employer, in effect, to

deal with its employees rather than with their statu-

tory representative, 356 U.S. at 350 (emphasis

added), Toledo Blade’s clause would authorize it in

fact to deal with its employees, to the exclusion of

the Union, in negotiating the terms and conditions

of retirement. [Pet. App. 7A (emphasis in origi-

nal).]

Toledo Blade argues that it is privileged to demand

individual bargaining as a substitute for collective bar-

gaining under NLRB v. American National Insurance

Co., 343 U.S. 395 (1952). Pet. 8-11. However, as the

court of appeals notes in distinguishing that case, Amer-

ican National Insurance involved an employer demand

for a management rights clause giving it initial respon-

sibility for certain matters, such as work scheduling—a

substantive request the Court concluded is consistent with

the Act-—and not an employer demand to engage in direct

dealing with individual employees, a method of proceed-

ing that is contrary to the Act. Pet. App. 6A-7A.

Finally, Toledo Blade charges that the court below dis-

regarded the NLRB’s primary authority for determining

mandatory subjects of bargaining. Pet. 9-10. That is

patently untrue. The court of appeals’ opinion begins by

recognizing the Board’s authority, and overturned the

Board’s decision only after concluding that “the Board’s

determination is ‘fundamentally inconsistent with the

structure of the Act,’....” Pet. App. 3A-4A, quoting

American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318

(1965). In reaching this conclusion, the court of appeals

was in agreement with the NLRB’s Chairman, who found

that “the essence of the [Toledo Blade’s] proposal was the

substitution of an individual negotiating process for the

collective process contemplated in the Act.” Pet. App.

18B (dissenting opinion ; footnote omitted).

10

CONCLUSION

The petition for leave to intervene and, if reached by

the Court, the petition for certiorari should be denied.

Respectfully submitted,

Of Counsel: SAMUEL C. MCKNIGHT

MARSHA BERZON Suite 614

177 Post Street 26211 Central Park Boulevard

San Francisco, CA 94108 Southfield, MI 48076-4139

RICHARD ROSENBLATT JAMES B. COPPESS

8085 E. Prentice Avenue (Counsel of Record)

Englewood, CO 80111 1925 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 728-2456

Attorneys for

Toledo Typographical Union