Opposition Brief — Gas Spring Co. v. National Labor Relations Board

In the Supreme Court of the Bnited satates

OCTOBER TERM, 1990

GAS SPRING CO., PETITIONER

Vv.

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

JERRY M. HUNTER Washington, D.C. 20530

General Counsel (202) 514-2217

D. RANDALL FRYE

Acting Deputy General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

WILLIAM A. BAUDLER

Attorney

National Labor Relations Board

Washington, D.C. 20570

ne eR

eo . . oe

f

Jan 23. 1991 :

_ SPANIOL, Ji

CLERK 3

—

QUESTION PRESENTED

1. Whether substantial evidence supports the Board’s °

finding that petitioner, during negotiations, asserted finan-

cial difficulties as the basis for its bargaining stance, mak-

ing unlawful its refusal to disclose financial information re-

quested by the Union.

2. Whether the Board properly found that petitioner’s

unlawful refusal to produce the financial information re-

quested by the Union was a contributing cause of the strike,

making it an unfair labor practice strike.

(I)

TABLE OF CONTENTS

Page

aie odak h VECO EN ooh etn’ DOR eee eE a l

et Tt we vba hee 6 Geb s be ueke ]

Sie aR ae oy anon PRC 2

I i i a ek Cea kik qe ai 7

ee beer ON on oe oe ee aoe dleaaue 13

TABLE OF AUTHORITIES

Cases:

American Model and Pattern Inc. v. NLRB, No. 816

eo GS Re ee ne ee &

Atlanta Hilton & Tower, 271 N.L.R.B. 1600

SRR a re er ee ee 7

Brooks, Inc., 228 N.L.R.B. 1365 (1977) ....... 1]

Dallas General Drivers, Local Union No. 745 v.

NLRB, 355 F.2d 842 (D.C. Cir. 1966) ....... s

Facet Enterprises, Inc. v. NLRB, 907 F.2d 963 (10th

er ea we tak Au SERS D bib b08 Messe 7,8

Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814 (6th

ore alc ks see kk hoes weeks aie 13

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

a aie oe Cie h i ee Ee kane 6 y

Mead vy. Retail Clerks, Int’l Ass’n, Local Union No.

839, 523 F.2d 1371 (9th Cir. 1975) .......... 12

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

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

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

CU CS SS er oe bk oe 0 i)

NLRB vy. Harvstone Mfg. Corp. , 785 F.2d $70 (7th

Cir.), cert. denied, 479 U.S. 821 (1986) ...... 7, 8

NLRB v. Heads & Threads Co., a Div. of MSL, 724

Pp | f+ A» Gl. Gaerne enna 9

NLRB vy. Jarm Enterprises, Inc., 785 F.2d 195 (7th

ge rte rs See ee a ke 4 1]

IV

Cases — Continued: Page

NLRB v. Remington Rand, Inc., 94 F.2d 862 (2d

Cir.), cert. denied, 304 U.S. 576 (1938) ...... 13

NLRB v. Stackpole Carbon Co., 105 F.2d 167 (3d

Cir.), cert. denied, 308 U.S. 605 (1939) ...... 13

NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956)... 5, 7

Nielson Lithographing Co. v. NLRB, 854 F.2d 1063

( £* 22. Serer rr rere ee 8, 11

Northern Wire Corp. v. NLRB, 887 F.2d 1313 (7th

CO ED are hw Shae Fin Cbd aeiinneenceseesens 9, 11

Price Waterhouse v. Heokins, 109 S. Ct. 1775

CUE bok hk 60.0 0c 00008 scnsesce eye taennsees 10, 12

Queen Mary Restaurants Corp. v. NLRB, 560 F.2d

403 (Sth Cir. 1977) ... 2... cc ccceccenccesces 9

Teamsters Local Union No. 515 v. NLRB, 906 F.2d

719 (D.C. Cir. 1990), cert. denied, No. 90-609

(Dame. WG, TORT ow. cee cccccecccnscsccess 11

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

|, BAS Se eeeer rarer rr ere There 8

Washington Materials, Inc. v. NLRB, 803 F.2d 1333

7 Se. PePEPrrerrirrerrr iret rree 8

Statutes and rule:

Labor-Management Relations Act § 303(b), 29

OE ND oid bod wos wad vatnwas sensed 12

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

§ 8(a)(1), 29 U.S.C. 158(ap{1) ........----- 4, 6,9

§ 8(a)(3), 29 U.S.C. 158(aX(3) .......------ 6,9

§ 8(a)(5), 29 U.S.C. 158(a(S) ........-----

§ 10(c), 29 U.S.C. 160(c) ........-.-------

§ 13, 29 U.S.C. 163 2.0... cece eee ecnees

.) ak a UE re terre 8

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-797

GAS SPRING CO., 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

[he opinion of the court of appeals (Pet. App. la-9a)

is unreported. The decision and order of the National Labor

Relations Board (Pet. App. 10a-78a) are reported at 296

N.L.R.B. No. 14.

JURISDICTION

Che judgment of :he court of appeals was entered on July

16, 1990. A petition for rehearing was denied on August

21, 1990. Pet. App. 79a. The petition for a writ of certiorari

was filed on November 19, 1990. The jurisdiction of this

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

(1)

STATEMENT

1. On June 6, 1986, petitioner and the Union' began

collective bargaining negotiations to replace their existing

agreement, which was due to expire on June 30, 1986. At

this first meeting, petitioner submitted a proposal seeking

a wage freeze and substantial reductions in other employee

compensation and benefits. Pet. App. 16a-17a. At the sec-

ond negotiating session, on June 13, petitioner’s chief

negotiator denied that petitioner was claiming to be in “dire

financial straits,” but added that petitioner’s health was “not

good,” that 1985 had been “a bad year” for the company,

and that 1986 had, so far, “been worse.” Jd. at 17a. In the

next meeting on June 17, petitioner argued against a wage

increase proposed by the Union on the ground that it “would

not make sense” because of a sharp drop in company sales.

Id. at 18a. On June 20, petitioner’s negotiators asserted that

petitioner “needed” and “required” concessions and could

not “commit” to increases. Jd. at 20a, 21a.

On June 24, petitioner’s negotiators became more insis-

tent, contending that concessions were “required and

necessary,” that petitioner had lost money in 1985 and 1986,

and that it was “heading in[to] the red.” Pet. App. 21a. They

insisted that petitioner “was not in good shape,” that 1985

had been a “bad year,” and that 1986 was proving even

worse than 1985. Jd. at 22a. They further pleaded that

“everyone [should] see the problem the company was in

money wise,” and urged the Union’s negotiators not to

“delude” themselves because “conditions [were] bad and get-

ting worse.” Ibid.; see id. at 23a.

On June 25, a company representative told the Union that

he did not want company employees to end up losing their

! Local Union No. 1612, International Union of United Automobile,

Aerospace and Agricultural Implement Workers of America (UAW).

jobs like the employees at other local companies, adding

that this was the reason for petitioner’s overall bargaining

stance. Pet. App. 23a-24a. He accused the Union of “not

paying attention to what was going on,” citing other local

companies which he alleged were going out of business due

to their inability to obtain union concessions. Jd. at 24a;

see id. at 24a-25a.

On June 27, petitioner’s vice president attributed peti-

tioner’s hard bargaining tactics to its financial condition,

explaining that petitioner was losing money and would con-

tinue to do so, that “the bottom line is red” and “would re-

main red,” that petitioner’s losses were not “tolerable,” and

that petitioner was “determined” to take action to reverse

them. Pet. App. 27a. He also explained that petitioner ex-

pected its losses to increase, and “could not consider any

wage increases as part of a three year contract” because peti-

tioner could not even “afford to give people raises in the

first year [of an] agreement.” /d. at 33a, 35a (bracketed

material in original); see id. at 25a-28a.

In bargaining sessions on June 30, petitioner’s vice presi-

dent repeated that petitioner was losing money and would

continue to lose money because of a downward trend in

business. Pet. App. 34a, 35a. He further asserted that peti-

tioner could not consider any wage increase as part of a

three-year contract because it did not expect its financial

situation to improve. Jd. at 35a; see id. at 30a-36a.

In response to petitioner’s assertions regarding its finan-

cial plight, the Uni »n asked to examine petitioner’s finan-

cial records. The Union repeatedly advised petitioner that

it would be willing to bargain over concessions if petitioner

could verify its claim of economic hardship, but that it

would first need to examine petitioner’s financial records.

Petitioner consistently refused the Union’s information re-

quests. Pet. Apo. 17a-18a, 20a-23a, 25a, 33a-3Sa.

4

On June 28 and again on July 1, the Union’s leadership

met with the unit employees to inform them about the status

of the negotiations. The leadership told the employees that

petitioner was claiming to be losing money and was seek-

ing concessions, that the Union had asked petitioner to open

its books to substantiate its claim, but that petitioner had

refused. At the June 28 meeting, some employees questioned

petitioner’s claim, waving copies of a newspaper article in-

dicating that petitioner was profitable. At the July |!

meeting, several employees, in the context of a general pro-

test that petitioner’s plea of financial hardship was not credi-

ble, questioned the Union leadership about petitioner’s

refusal to disclose its books to the Union. At both meetings,

employees demanded to know why petitioner would not

open its books and accused petitioner of lying about its

financial status. At the end of the July | meeting, the leader-

ship called for a strike vote. The employees voted to strike

by a 235-12 vote, and commenced the strike that day. Pet.

App. 28a-30a, 36a-4la.

On October 6, 1986, the Union made an unconditional

offer to return to work on behalf of all employees who had

not already done so. Petitioner responded that it considered

the striking employees economic strikers and refused to offer

them immediate employment, instead placing them on a

preferential hiring list and hiring a few of them as positions

became available. Pet. App. 4la-42a, 67a-68a.

2. The Board, adopting the decision of the administra-

tive law judge, found that petitioner had violated Section

8(a)(1) and (5) of the National Labor Relations Act (Act),

29 U.S.C. 158(a)(1) and (5), by refusing to disclose its finan-

cial records to the Union. Pet. App. lla, 6la. The Board

noted that “even though [petitioner] contended once that

it was merely unwilling to pay and denied that it was in ‘dire

financial straits,’ each discussion of the reasons that [peti-

tioner] would not pay led to factual allegations that it could

EST AVAILABLE COP)

5

not pay as a result of its own compelling financial considera-

tions.” Jd. at 50a. In addition, the Board found that peti-

tioner’s representations regarding its financial condition were

“all clear indications that there was a financial basis that

impelled and dictated [petitioner’s}] decision into an intract-

ability.” /bid. Further, the Board found that “[aJll these

arguments were pleas that [petitioner] could not pay in-

creases and could not continue operating under the terms

of its expiring agreement, in the words of the Supreme

Court, ‘without injury to [its] business.’” Jd. at 51a (citing

NLRB vy. Truitt Mfg. Co., 351 U.S. 149, 152 (1956)). The

Board therefore concluded that the financial information

requested by the Union was relevant to the performance of

its collective-bargaining responsibilities, and that petitioner

had violated the Act by refusing the Union’s information

requests. Pet. App. Ila-12a.

The Board, agreeing with the administrative law judge,

also found that the strike was caused at least in part by peti-

tioner’s refusal to furnish the Union with this financial in-

formation. Pet. App. lla, 65a. The Board noted that the

employees’ “dissatisfaction stemmed directly from the un-

fair labor practice found herein, [in] that they could not

understand why they were being asked to give back

economic gains they had made” to a company that appeared

prosperous and refused to offer any evidence to the con-

trary. /d. at 62a. The Board further noted that the employees

might have believed petitioner had it furnished evidence to

substantiate its claims, and the employees might therefore

have acceded to some or all of petitioner’s demands without

a strike, or with a shorter one. /d. at 64a. Petitioner’s

unJawful rejection of the Union’s information request thus

fueled empioyee cynicism regarding petitioner’s bargaining

stance, thereby prompting an “even greater reaction to all

the concessions which [petitioner] proposed,” ibid., and con-

tributing to the cause of the strike. Accordingly, the Board

6

found that the strike constituted an unfair labor practice

strike and the striking employees were therefore entitled to

immediate reinstatement upon their unconditional offer to

return to work. /d. at 12a, 67a. Petitioner, by delaying the

reinstatement of some of the strikers and by refusing to

reinstate others, committed an indepen (ent violation of Sec-

tion 8(a)(1) and (3) of the Act, 29 U.S.C. 158(a)(1) and (3).

The Board ordered petitioner to cease and desist from

the unfair labor practices found, to furnish the Union upon

request with relevant books and records regarding peti-

tioner’s finances, and to reinstate the striking employees with

backpay and make whole those strikers whose reinstatement

petitioner unduly delayed. Pet. App. 12a, 71la-73a.

3. In an unpublished per curiam decision, the court of

appeals upheld the Board’s findings that petitioner unlaw-

fully refused to turn over to the Union the financial records

it had requested and that the unlawful conduct was a con-

tributing cause of the strike. Pet. App. 6a-9a. The court

rejected petitioner’s argument that it had simply refused to

make bargaining concessions to the Union. The court noted

that petitioner’s position “is completely eroded by the

prevalence in the record of its references to its worsening

financial condition, its claims that it was ‘heading into the

red,’ and its forecasts of the loss of jobs.” Jd. at 6a-7a.

“There was certainly substantial evidence on which the

Board could have concluded that the employer’s bargain-

ing position was a claim of financial inability to pay and

not an assertion of ‘prudent financial considerations.’” /d.

at 7a. ;

The court also sustained the Board’s finding that the strike

was an unfair labor practice strike, ruling that “the record

contains substantial evidence from which the Board could

have properly found that [petitioner’s] refusal to produce

its financial information was a contributing cause of the

strike.” Pet. App. 9a. The court concluded that the evidence

7

showed that on the date of the strike vote, union leaders

explained to employees that union negotiators had asked

petitioner to open its books to substantiate its claimed finan-

cial difficulties, and that several employees “upon learning

that the company had refused to disclose any financial in-

formation, * * * questioned the union leaders about the

employer’s refusal and expressed their disbelief that the ap-

parently profitable employer was experiencing the finan-

cial difficulties it claimed.” Jd. at 8a-9a.

ARGUMENT

1. An employer violates its statutory obligation to

bargain in good faith if, during the course of contract

negotiations, it refuses to produce information substan-

tiating its claim that it is financially unable to meet a union’s

bargaining demands. NLRB v. Truitt Mfg. Co., 351 U.S.

149, 152-153 (1956). The reason is that if an argument “is

important enough to present in the give and take of bargain-

ing, it is important enough to require some sort of proof

of its accuracy.” /bid. No “magic words” are necessary to

trigger an employer’s duty to disclose financial information,

so long as the employer’s words and conduct convey an in-

ability to afford disputed labor costs. Facet Enterprises, Inc.

v. NLRB, 907 F.2d 963, 980 (10th Cir. 1990); NLRB v.

Harvstone Mfg. Corp., 785 F.2d 570, 575 (7th Cir.), cert.

denied, 479 U.S. 821 (1986). At the same time, an employer

incurs no duty to disclose financial information if it mere-

ly conveys its “simple unwillingness to meet the employees’

demands, rather than an inability to do so.” Atlanta Hilton

& Tower, 271 N.L.R.B. 1600, 1602 (1984). In that situa-

tion, the policies underlying 7ruitt are not implicated since

the employer is making no claim susceptible of verification.

Petitioner does not question those principles. Instead,

petitioner denies that it claimed during the bargaining

8

process that it was financially unable to meet the Union’s

demands, and contends that it merely conveyed to the Union

an “unwilling[ness] to pay higher wages in order to ensure

long-term financial health and competitiveness.” Pet. 17.

But the court of appeals found that there was substantial

evidence to support the Board’s contrary finding, and fact-

bound issues of this nature do not warrant review by this

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

491 (1951).

The decision below does not conflict with the cases cited

by petitioner. Pet. 17-19. In those cases, the court recognized

that an employer incurs no obligation to disclose its finan-

cial records to a union based merely on its claims of com-

petitive disadvantage; an obligation arises only if the

employer claims that it is unable to meet the union’s

demands. See NLRB v. Harvstone Mfg. Corp., 785 F.2d

at 575-576; Nielson Lithographing Co. v. NLRB, 854 F.2d

1063 (7th Cir. 1988); Washington Materials, Inc. v. NLRB,

803 F.2d 1333, 1338-1339 (4th Cir. 1986); Facet Enterprises,

Inc. v. NLRB, 907 F.2d at 980; Dallas General Drivers,

Local Union No. 745 v. NLRB, 355 F.2d 842, 845 (D.C.

Cir. 1966).2 In Washington Materials, Inc. v. NLRB, the

Fourth Circuit adopted the rule that petitioner endorses.

In this case, however, the Board and the Fourth Circuit

found that petitioner’s assertions amounted to the claim that

it was unable to meet the Union’s demands, not that it

sought to maintain a competitive position vis-a-vis other

firms. Accordingly, any difference between the decision

below and the cases cited by petitioner turns on a difference

in the facts, not in the governing legal principle.

? Petitioner also cites American Model & Pattern Inc. v. NLRB, No.

816 F.2d 678 (6th Cir. 1987) (Table), but that decision is unpublished

and therefore has, at best, limited precedential value. See 6th Cir. R.

24(c).

9

2. a. A strike is an unfair labor practice strike “if an

{employer’s}] unfair labor practices had anything to do with

causing it.” NLRB v. Crystal Springs Shirt Corp., 637 F.2d

399, 404 (Sth Cir. 1981). Accord Queen Mary Restaurants

Corp. v. NLRB, 560 F.2d 403, 412 (9th Cir. 1977); NLRB

v. Cast Optics Corp., 458 F.2d 398, 407 (3d Cir.), cert.

denied, 409 U.S. 850 (1972). Unfair labor practice strikers

are entitled to reinstatement to their former or substantial-

ly equivalent jobs immediately upon their unconditional of-

fer to return to work, even if replacements for them have

been hired. The employer’s outright refusal to reinstate, or

delay in reinstating, unfair labor practice strikers on the

ground that they have been “permanently replaced” con-

stitutes an independent violation of Section 8(a)(1) and (3)

of the Act, 29 U.S.C. 158(a)(1) and (3). Mastro Plastics

Corp. v. NLRB, 350 U.S. 270, 278 (1956); NLRB v. Cast

Optics Corp., 458 F.2d at 407. A strike may be an unfair

labor practice strike even if it also may have economic ob-

jectives, and unfair labor practice strikers must be reinstated

even though there are other causes of the strike. Northern

Wire Corp. v. NLRB, 887 F.2d 1313, 1319-1321 (7th Cir.

i989); NLRB v. Heads & Threads Co., a Div. of MSL, 724

F.2d 282, 288-289 (2d Cir. 1983); NLRB v. Cast Optics

Corp., 458 F.2d at 407.3

In this case, the Board and the court below properly con-

cluded that petitioner’s unlawful refusal to furnish relevant

financial data to the Union was a contributing factor in

precipitating the strike, making the unreinstated employees

unfair labor practice strikers. As shown above, on the date

> Petitioner asserts that the lower courts have varied in defining un-

fair labor practice strikes. Pet. 12-13. As the cases cited by petitioner

make clear, however, each of those courts will find an unfair labor prac-

tice strike upon a showing that an unfair labor practice was a con-

tributing cause, or, put another way, had anything to do with causing

the strike.

10

of the strike vote the Union’s leaders explained to the

employees that petitioner had rejected the Union’s request

that petitioner open its books to substantiate its claimed

financial difficulties. Several employees, upon learning of

petitioner’s refusal, questioned the union leaders about peti-

tioner’s refusal and expressed their disbelief that the ap-

parently profitable employer was experiencing the finan-

cial difficulties that it claimed. As the Board found, the

employees’ “dissatisfaction stemmed directly from the un-

fair labor practice found herein, [in] that they could not

understand why they were being asked to give back

economic gains they had made” to a company that appeared

prosperous and refused to offer any evidence to the con-

trary. Pet. App. 62a. Moreover, as the Board noted, the

employees “might have believed” petitioner had it furnish-

ed evidence to substantiate its claims, and the employees

might therefore have acceded to some or all of petitioner’s

demands, without a strike, or with a shorter one. /d. at 64a.

Petitioner’s unlawful refusal to supply the Union with finan-

cial information had the effect of prompting an “even

greater reaction to all the concessions” that petitioner pro-

posed, ibid., thereby contributing to the cause or prolonga-

tion of the strike.

b. Petitioner maintains that the court of appeals erred

by not applying the “mixed motive analysis” of Price

Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989), to deter-

mine whether the strike would have occurred absent peti-

tioner’s unlawful refusal to furnish the information re-

quested by the Union. Pet. 12. That claim does not war-

rant review by this Court, for two reasons.

First, a “mixed motive analysis” would not aid petitioner,

even if such an analysis were appropriate. The ad-

ministrative law judge, whose findings were adopted by the

Board, found that there was “no sufficient proof that the

Union would have conducted a strike had there been no

unfair labor practice.” Pet. App. 67a. The administrative

law judge noted that the Union had promised to bargain

about concessions if petitioner substantiated its claims of

financial distress, and “it cannot be predicted that bargain-

ing would have failed” if petitioner had complied with the

Union’s request. /bid. In other words, petitioner’s demand

for concessions and its unlawful refusal to substantiate its

claimed need for them were inextricably intertwined as

causal factors of the strike. NLRB v. Jarm Enterprises, Inc.,

785 F.2d 195, 204 (7th Cir. 1986) (record supported finding

that strike was an unfair labor practice strike where

employer’s refusal to furnish financial information “pre-

cluded the Union from evaluating the employer’s position,

as well as its own, and thus precluded meaningful bargain-

ing”); Brooks, Inc., 228 N.L.R.B. 1365, 1367 & n.12 (1977)

(same). See Nielson Lithographing Co. v. NLRB, 854 F.2d

1063, 1065 (7th Cir. 1988) (employer’s refusal to substan-

tiate claims of financial hardship forces union “to play Rus-

sian roulette” by putting union “to the Hobson’s choice of

acceding to a quite possibly exaggerated claim of poverty

or risking its members’ jobs”).

In any event, the court of appeals did not err in adhering

to the longstanding rule that the mixed-motive causation

test applicable to discrimination cases is not the proper

standard for assessing strike causation. Pet. App. 8a. In-

stead, “the dispositive question is whether the employees,

in deciding to go on strike, were motivated in part by the

unfair labor practices committed by their employer, not

whether, without that motivation, the employees might have

struck for some other reason.” Northern Wire Corp. v.

NLRB, 887 F.2d at 1319-1320. Accord Teamsters Local

Union No. 515 v. NLRB, 906 F.2d 719, 723 (D.C. Cir.

1990), cert. denied, No. 90-609 (Jan. 14, 1991). In urging

a mixed-motive analysis, petitioner fails to take account

12

of the particular nature of an unfair labor practice strike.

Even if a strike would have occurred despite an employer’s

unfair labor practices, the strike would still be encumbered

with, and not practicably disentangled from, the aggravating

factors caused by those unfair labor practices, which tend

to prolong a strike. In addition, the mixed-motive analysis

applied in the case of discriminatory discharges addresses

concerns not involved here. Specifically, it provides a means

of reconciling an employer’s statutorily recognized interest

in discharging employees for cause with the Act’s prohibi-

tion against discharging employees for engaging in union

or other protected activity. 29 U.S.C. 160(c). See Price

Waterhouse v. Hopkins, 109 S. Ct. at 1789-1790. No such

need to sort out conflicting employer motives is involved

here because it is the employees’ motive, not the employer’s,

that is at issue.*

* In contending that a mixed-motive analysis should be applied here,

petitioner suggests that its right to hire permanent replacements for

economic strikers is analogous to an employer’s right to discharge

employees for cause and warrants similar deference. Pet. 10-11. The

analogy ts inapt. While a claim of discriminatory discharge implicates

an employer’s right to fire an employee for cause, no such mix of lawful

and unlawful employer conduct need be unraveled in determining a

strike’s causation. It is the employees’ motivation that is at issue, and

giving emplovees the right to reinstatement if the employer’s unfair labor

practices caused a4 strike, in part, protects the right to strike guaranteed

in Section 13 of the Act, 29 U.S.C. 163. Similarly unavailing is peti-

tioner’s comparison, Pet. 11-12, of the situation here to that involved

in determining whether a strike called by a union for both a lawful

primary objective and an unlawful secondary objective can serve as the

basis for a suit for damages under Section 303(b) of the Labor-

Management Relations Act, 29 U.S.C. 187(b). In the latter situation,

it is Necessary to import the requirement that the unlawful secondary

objective be a “substantial factor” in causing the strike in order to “pro-

tect the union’s right to strike for primary objectives where such objec-

tives, standing alone, would have caused the strike.” Mead v. Retail

Clerks, Int'l Assn, Local Union No. 839, 523 F.2d 1371, 1379 (9th Cir.

1975).

13

The cases cited by petitioner, Pet. 14-15, do not require

a different result.° The court in each case noted that the

employer had failed to show that a strike would have oc-

curred even absent the employer’s unfair labor practices.

But here, too, petitioner failed to make such a showing.

In addition, in none of those cases did the outcome turn

on a “but for” analysis; in each case, the court found that

the employer’s unlawful conduct was a contributing cause

of the strike. Accordingly, in each case the court’s discus-

sion of this issue was dicta.

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

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

WILLIAM A. BAUDLER

Attorney

National Labor Relations Board

JANUARY 1991

5 Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814, 820 (6th Cir. 1975);

NLRB v. Stackpole Carbon Co., 105 F.2d 167, 175-176 (3d Cir.), cert.

denied, 308 U.S. 605 (1939); and NLRB v. Remington Rand, Inc., 94

F.2d 862, 872 (2d Cir.), cert. denied, 304 U.S. 576 (1938).

vy US. GOVERNMENT PRINTING OFFICE: 1991— 282-061/20322