# Brief in Opposition to Petition for a Writ of Certiorari — General Motors Corp. v. International Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0747%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for a Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 857 ## Text Pare tae < Fy ae lis i Cd nat a e me ‘ P ts ODED AR DI BASEL IS Soa i LOR NEON Mg hashes bth pete EGE: INDEX Question Presented 2... ccccccccvecccvanccccces “ee ‘ Statement of the Case....... Veamaeey aebareere een ' CITATIONS Cases District 50 United Mine Workers, Local 13942, 358 , MM CR oes scl cvccesutedueke sea: . Fafnir Bearing Co., 151 NLRB 332 (1965)......... 5, 7 Fibreboard Paper Products Corp. v. NLRB, 379 U. S. 203, affirming 322 bs 2d 411 (D.C. Cir. SME Sav cvccstaseesuateheceahietsucsceiene) 6, 7,8 NLEB v. C & C Plywood Corp., 385 U. 8. 421...... . 79 NLRB v. Acme Industrial Co., 385 i a 9 Puerto Rico Telephone Co. v. NLRB, 359 F. 2d 983 (Ist Cir. 1966) ......:.. eee cece ee ete eeeees - Teamsters Local 24 v. Oliver, 3958 = & See 8 Timken Roller Bearing Co., 70 NLRB 500 (1946), enforcement denied on other grounds, 161 F. 2d 949 (6th Cir. 1947)... ccc cecccccccccccens, Universal Camera Corp. v. NLRB, 340 U. 8S. 474... ii , ‘Section 8(a)(1), National Labor Relations Act, as amended, 29 U.S.C. §158 (a)(1).........0006+ Section 8(a)(5), National Labor Relations Act, as’ amended, 29 U.S.C. §158(a)(5)........ yates iy © Cs Poge 3 actin ell Supreme Court of the United States ‘OCTOBER TERM, 1967 , Si No. 316 eoepeeey GENERAL MOTORS CORPORATION, ‘ Petitioner, : > “Te f INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT . WORKERS OF AMERICA (UAW), *, aagenmaat. —t— ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED — ' STATES COURT OF APPEALS FOR THE DISTRICT .OF COLUMBIA CIRCUIT _ —+-— _ BRIEF FOR RESPONDENT IN « OPPOSITION aie . QUESTION PRESENTED Where contracting out permanently reduced the number of jobs in the bargaining unit by six, did the.court below err in holding that the Company was not excused from bargaining on it, either because the effect was de minimis, — or because the management clause, dealing only with meth- ‘ ods changes, waived the Union’s ae to = on ne out? =~ , STATEMENT OF THE CASE ~The Facts © There was no dispute ‘between the Board and the court _of appeals as to the basic facts of this case, which a are as follows. . ee Prior to Jane 17, 1963 finished cars peer at the Company’s Southgate, California plant were temporarily stored’ and then loaded for shipping in two distinct loca-— tions and in two series of operations, performed by two ° groups of employees—one employed by the Company and the other by, an outside employer, PMT. The temporary storage operations were performed on the Company owned OK lot by the eighteen bargaining unit drivers in the Com- pany’s Department 66. The loading operations were per- formed by PMT employees on the PMT lot, which .was © ‘ immediately adjacent to the OK lot and leased to PMT | by the Company. Finished cars were driven onto the OK lot and temporarily parked there by six of the Department — 66 drivers. When enough cars for a load had thus been . parked the remaining twelve drivers in Department 66 drove them to a gate in the fence that separated the OK and PMT lots. PMT employees called gatemen drove ‘the cars through the fence and parked them together on the PMT lot. ° Other PMT employees called truck drivers and rail loaders then drove the cars onto haulaway trucks and rail cars on which they were transported to dealers in the Pacific coast area. (Appx C, pp. 28-29).? On June 17, 1963 the Company consolidated the tem- porary storage and loading — into one od leasing 4 Record references are all to the appendices included at the end of — the Petition; ie., “Appx A” refers to the court’ of appeals’ decision, “Appx C” to the Board’s supplemental decision, and “Appx D” to the Board’s original decision. A reference included before the period for the sentence preceding it relates only to that sentence. ; - PMT the OK lot and removing the fence between the two lots, making them one, calied the PMT lot. Finished cars are still driven out onto the lot and temporarily parked, ‘.. but now they are driven directly from those parking spots _ straight onto the haulaway trucks and rail cars, rather than being parked a second time in preparation for load- ing, as before. (Appx C, pp. 29-30)... Under the new system all jobs are performed by PMT ; employees. The.jobs of the twelve Department 66 drivers who drove the cars from the first parking spots to the gate have been elimiriated, as have those of the PMT gatemen . who drove the cars from the gate to the, second parking spot, on. the PMT lot. ‘The jobs of driving the parked ears onto haulaways and rail cars are, of course, still per- “formed and still by PMT employees. * And the jobs of driv- _ ing the cars out onto the lot and parking them are still performed, but no longer by the six Department 66 drivers _ who performed ‘them in the past. ‘These jobs are now performed by PMT gatemen. (Appx C, p. 30). - The Board characterized the transfer of this work to | Seid as.an ‘‘aspect” of the overall methods change (Appx C, p. 31). The Court of Appeals characterized it as con- ‘tracting out (Appx A, p. 22). The change of June 17 was preceded by a ical: 7 Union meeting on June 12 at which the Company detailed what it was going to do on June 17. In-response to the Union’s protest, the Company replied that the manage ment clause in the UAW-GM National Agreement gave it a contract right to do what it was going to do, so there was no point in discussing it (Appx D, pp. 38-39). . Two days later, on June 14, the Union filed an unfair ‘labor practice charge against the Company accusing it of violat- . ‘ing Sections 8(a)(1) and (5) of the Labor Act by re- fusing to engage in collective bargaining on the proposed i re out. On J une 17 the bi put the change > eee, . 07 ON, SRNR A ORES AMT “it 03 \ 4 eS 7 i Wie” into effect. On June "20, after four meetings on the sub- | ject, the parties ‘agreedwon placement and pay for the De- er 66 drivers re by the change (Appx C, p. The Decisions Below In its Supplemental Decision the Board siti that six bargaining unit jobs. had been transferred to PMT; however, it refused to call the transfer contracting out _ and characterized it instead.as an ‘‘aspect” of the methods change (Appx C, pp. 30-31, 32 n.8). The Board reasoned a that, since the Company’s conduct was not contracting out: but merely an ‘‘aspect” of the methods change, and since oy the management clause of the parties’ National Agreement | provides that ‘‘the methods, processes and means of manu- facturing are solely and exclusively the responsibijity of the Corporation’, the Company : ‘was authorized to engage in the methods change, including this ‘‘aspect”, and the Union had waived its statutory- right-to-collective bargain- ‘ing on the matter. The Board was at pains to make clear that since it had not found contracting out, it was not raling ~ that the Union had waived its rights to bargaining on con- | tracting out, (Appx C C, pp. 27-28). + The Board cited two additional grounds for its decision. - First, it concluded that the change ‘‘did not result in any significant detriment to the employees in the bargaining unit”, noting that it did not appear that ‘‘there were any layoffs as a result of the change” (Appx C, pp. 31-32). Finally, the: Board noted that the Union had neither -re- quested that the Company delay its action nor suggested any alternatives, and that, after the change, the parties reached agreement on placement and pay for the displaced Department 66 drivers. It characterized this’ conduct as fulfilling ‘‘any claimed duty to bargain” the Company had. os (Appx G; pp. 33-34). a a ee = Sa rT MAM pcre 6 The count of appeals ruled that the management clause in the parties’ agreement was not a ‘‘clear and unmistak- able’? waiver by the Union of its statutory right to collec- tive bargaining on the action the Company had taken. ‘The court called that action contracting out, noting that, “It took away the jobs of six members of the Union” (Appx A, p. 22). The court concluded that the ‘‘agreement that ‘the methods, processes and means of manufacturing poration’ is certainly not-a‘clear and unmistakable’ waiver of the union’s right to bargain where a change in methods amounts in fact to contracting out.”* The court particularly | noted Fafnir Bearing Co., 151 NLRB 332. n. 1, 387, 341 (1965), in\ which the Board ruled that virtually identical management clause language was not a waiver. of the union’s right to bargaining on contracting out. The court added, “Neither is it ‘clear and unmistakable’ that ‘the __-methods, processes and means of manufacturing’ include parking manufactured cars.’’ (Appx A, p. .23). On the “‘significant detriment’’, or de minimis, point, the . court ruled that ‘‘the change. hed an adverse impact on the bargaining unit since it diminished by six the whole ‘number of jobs performed by its members. This was not a mere ‘de minimis’ violation of the employer’s duty to | bargain with the union.’’ (Appx A, p. 22). With respect to both the discussions which ‘preceded the change and the subsequent agreement concerning placement and pay for the displaced Departmerit 66 employees, the court rejected the Board’s characterization of them as fulfilling’ the Com- .. | pany’s duty to bargain on the contracting out. : In summary, the points of difference between the ‘Board and the court were as to the following: (1)) whether the. \ | manent clause was a ‘cleat and unmistakable waiver” of the Union’s right to bargaining on the Company’s action; (2) whether that action was contracting out, or an ‘‘as- pect’’ of the. methods sige (3) whether ad ‘loss. of - are solely and exclusively the responsibility of the Cor- : S\ SNP TAREE RO en helene naman ze rar 6 ee ee te a Beth. = ee Ree ee oe ee eee Oe Ne 6: six bargaining unit jobs was de minimis; and (4) er the discussions preceding the change and the subsequent _ agreement on placement and pay for the displaced em- _ployees “satisfied, the company’s, daty to bargain on the © decision to contract out? ~ In both its original and supplemental devisions the Board treated this as a contract waiver case (Appx D, p. 41; oe Appx C, pp. 27-28) ; that is; one in which the central. -ques- tion is whether the parties’ contract contains a clear and unmistakable waiver by ‘the union of bargaining: on the employer’ s action. The Board ruled there was a waiver, because the Company’s action was a methods change. ‘The court ruled there was not.a waiver because the Company’ 8 action was vontracting out. ‘As it states in the memorandum ~ filed in this. Court, the Board regards this case as turning — on its own facts and as mevng no ‘‘broad sweep”. ax ARGUMENT The Deckon Below i Comct and Preset no Inport es Question of Federal Law. ~The Company’ 8 main reason for requesting the writ is — so that this Court can review ‘‘the issues in this case which were not resolved by. the Court’s Fibreboard decision.” ~ However, the Company merely lists four factual differ- -erces between this ease and Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, affirming 322 F. 2d 411 (D.C. Cir. 1963), and asks. the Court to review this case because it is different from Fibreboard.! This, by itself, = a ceil eli i teenies toes St Semler Relane Tite: Coant, (See Board’s Memorandum, p. 1, n.1). 2In stark contrast to the Company's now neariy-total reliance on ; . Fibreboard was its attitude toward that decision in the court of appeals. - There it cited Fibreboard once in its supplemental brief and not even . once in its principal brief. — ’ POM AMR LEIA COREA OI BALI ARRI DO ie IEE — see _ is hardly reason for review. Moreover, as we shall demon- strate, the questions suggested by the factors the Company points to are either unimportant, were settled in Fibreboard, - or have been settled in NLBB v. C é C. Plywood Corp., 385 UB. 421. ‘First, the Company urges that in this case‘ the collective bargaining agreement contains. provisions (the manage- Ment, transfer, and waiver clauses) which it contends waive - the Union’s statutory right to collective bargaining on contracting out. That the Company reads this particular agreement as including such a waiver while the court of - appeals does not, hardly presents an important ungettled question of federal labor law, especially in view of (1) the Board’s decision’ in Fafnir Bearing Co., 151 NLRB 332 n.1, 337, 341 (1965), in which it read a management clause almost identical to the one involved here as not a - ‘waiver of the Union’s right to bargaining 6n contracting out, and (2) NLRB v. C & C Plywood Corp., 385 U.S. 421, - 423 n.4, in which this Court affirmed the Board’s ruling that a waiver clause virtually identical to the one here (waiving “‘the right . .:. to bargain collectively with re- _ spect to any subject matter not . . . covered in this Agree- OO ee + re