Opposition Brief — WATERFRONT GUARD ASSN., LOCAL 852 v. NLRB (No. 74-1195)

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TABLE OF CONTENTS

Page

STATUTES INVOLVED ......--ncceccncencocccncsncercosescncernesnconeee 1

COUNTERSTATEMENT OF THE CASE .................... 2

REASONS FOR DENYING THE WRIT .................--- 3

The Steelworker’s Trilogy And Gateway Coal Cited

By Petitioner Have No Bearing On The Relation-

ship Of The National Labor Relations Board To

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The Board Has Plenary Authority To Decide Un-

fair Labor Practice Cases And Complete Discre-

tion Regarding Deferral To Arbitration ................ 5

Contrary To Petitioner’s Claim, The Spielberg

Standards Were Properly Applied And The Fourth

Circuit Was Justified In Enforcing The Board’s

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TABLE OF AUTHORITIES CITED

Cases: Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) , 7

Carey Vv. Westinghouse Electric Corp., 375 U.S.

261 (1964) 6

Gateway Coal Company Vv. United Mineworkers of

America, 414 U.S. 368 (1974) -.........2....2.--002.22--- 5

Glendale Mfg. Co. v. Local 520, ILGWU, 283 F.2d

936 (CA 4 1960) cert. denied 366 U.S. 950

E_ | pI eer SPR ite selene nn arr oe te 4

International Harvester Co., 138 NLRB 923

i _ | NNC RS UE iieer tance be = Sneek Ome re eee 6

International Ladies Garment Workers Union Vv.

pees Me ik Be Be). ) Re ener 8

N.L.R.B. v. Acme Industrial Co., 385 U.S. 432

CORUIT D css iss cage ceaseascaiiasab ag tionennichsemiann snianodeiss 5

N.L.R.B. v. Plasterers’ Local 79, 404 U.S. 116

UI ines eco gexec casichtindes aes aouonss apackok sceatolnie esesathinneteincices 6

Spielberg Manufacturing Co., 112 NLRB 1080

(| GARESRIEF PERERSEUR CLAS nace eis Asta SxNEaT A oor 4,5, 6,7

United Steelworkers of America Vv. American Mfg.

eR ok | | SRS 4, 5, 6,7

United Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593 (1960) —........ 4,5, 6,7

United Steelworkers of America Vv. Warrior &

Gulf Navigation Co., 363 U.S. 574 (1960) _.... 4, 5, 6,7

Statutes:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1195

WATERFRONT GUARD ASSOCIATION, Local 1852, Indepen-

dent Watchmen’s Association of The Port-of Balti-

more, Maryland, Petitioner,

V.

NATIONAL LABOR RELATIONS BOARD,

wi Respondent,

AMSTAR CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

Respondent, Amstar Corporation (hereinafter referred

to as “Amstar’”) opposes the Petition for a Writ of

Certiorari filed by the Waterfront Guard Association

and respectfully requests that it be denied.

STATUTES INVOLVED

In addition to the statutory provisions cited in the

Petition, the following provisions of the Labor Manage-

2

ment Relations Act of 1947, set out verbatim in Ap-

pendix A, are relevant hereto: Section 8(b) (1) (A),

(29 U.S.C. § 158(b) (1) (A)) and Section 8(b) (2), (29

U.S.C. § 158(b) (2)).

COUNTERSTATEMENT OF THE CASE

Petitioner’s Statement of the Case contains a number

of factual inaccuracies which necessitate a response.

Rather than include a separate statement of the case,

we have addressed below those inaccuracies in order to

correct Petitioner’s Statement of the Case.

Petitioner states that the Collective Bargaining Agree-

ment between it and the Steamship Trade Association

was negotiated on Amstar’s behalf. This point was

never conceded by Amstar and, indeed, evidence was

introduced into the record before the Administrative Law

Judge in the unfair labor practice proceeding to support

Amstar’s contention that it never agreed to be bound

by this Labor Agreement. The Administrative Law

Judge found that:

3. Amstar, although a member of the Association,

has at no time material herein delegated any au-

thority to the Association to represent it in ne-

gotiations with the Respondent with respect to the

wages, hours and conditions of employment of em-

ployees employed by Pinkerton to perform guard

services at the Respondent’s facility in Baltimore.

(App. B at 15a-16a, Conclusion of Law 3).

Petitioner, in the first paragraph of its Statement of

the Case, mistakenly asserts that the Arbitrator held

Amstar did not have the right to contract for guard

services with an independent contractor. This was not

his holding. On the contrary, the Arbitrator merely

held that the guards in question performed work within

the jurisdictional language of the above mentioned Labor

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Agreement, and therefore were required by its union

security provision to become members of Petitioner. A

clear understanding of the arbitration decision is im-

portant since the NLRB and its Administrative Law

Judge held Petitioner’s attempt to cause Amstar to

comply with this Award of the Arbitrator constituted

a violation of Section 8(b)(1)(A) and 8(b) (2) of the

Act. (App. B at 16a, Conclusion of Law 5).

In the second paragraph of its Statement of the Case,

Petitioner incorrectly characterizes the decision of the

District Court in denying Amstar’s Motion to Dismiss

or for Summary Judgment, as “generally [upholding]

the validity of the Arbitration Award.” (Pet. at 3).

The District Court was primarily concerned with the

legal issues pertaining to Amstar’s contention that com-

pliance with the Arbitrator’s Award would result in the

commission of an unfair labor practice. After con-

sidering Amstar’s arguments and various decisions of

the National Labor Relations Board interpreting the

National Labor Relations Act, the Court initially con-

cluded that “[e|]nforcement of the award would not

necessarily result in an unfair labor practice” (363

F.Supp. at 1034). Although the Court denied Amstar’s

Motion to Dismiss or for Summary Judgment, it sub-

sequently entered a stay, after the Administrative Law

Judge’s decision and while the unfair labor practice case

was on appeal to the Labor Board and subsequently

to the Fourth Circuit. A second stay order of the Dis-

trict Court is presently in effect (Respondent’s Ap-

pendix B). Thus, contrary to Petitioner’s assertion,

the District Court did not uphold the Arbitration Award,

but rather stayed the proceedings before it pending final

judicial review of this decision.

REASONS FOR DENYING THE WRIT

Rule 19 of this Court’s Rules sets forth general con-

siderations or grounds governing decisions whether to

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grant petitions for certiorari. It is not entirely clear

which of those grounds Petitioner relies upon in seek-

ing certiorari. However, the thrust of the Petitioner’s

argument is that the Fourth Circuit’s affirmance of the

NLRB’s refusal to defer to the Award of the Arbitrator

is in conflict with the decisions of this Court in the

Steelworker’s Trilogy.’

In addition Petitioner urges that the issuance of per

curiam decision by the Fourth Circuit shows a lack of

“serious consideration” of the issues by the Court. This*

contention is not worthy of a protracted response. Uti- .

lization of a per curiam decision by the Court reflects,

in all probability, its recognition of the general judicial

acceptance of the Labor Board’s Spielberg doctrine,’ as

well as the fact it had previously decided that arbitra-

tion awards repugnant to the policies of the Act must

be disregarded. Glendale Mfg. Co. v. Local 520, ILGWU,

283 F.2d 936 (CA 4 1960) cert. denied, 366 U.S. 950

(1961).

The Steelworker’s Trilogy And Gateway Coal Cited By

Petitioner Have No Bearing On The Relationship Of The

National Labor Relations Board To Arbitration.

This Court in the Steelworker’s Trilogy dealt with the

relationship between the jurisdiction of arbitrators and

federal courts. In them it held that national labor

policy favors labor arbitration and the courts should

1 United Steelworkers of America Vv. American Mfg. Co., 363 U.S.

564 (1960); United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960); United Steelworkers of

America VY. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

2In Spielberg Manufacturing Co., 112 NLRB 1080 (1955), the

Board enunciated certain tests that must be met before it will

recognize the validity of an arbitration award. These are: (a) the

proceedings must have been fair and regular; (b) all parties must

have agreed to be bound; and (c) the decision of the arbitrator

must not be clearly repugnant to the Act.

5

defer to an arbitration award, so long as “. . . it draws

its essence from the collective bargaining agreement.”

Enterprise Wheel, supra at 597. Neither the Steel-

worker’s Trilogy, nor Gateway Coal (Gateway Coal Com-

pany v. United Mineworkers of America, 414 U.S. 368

(1974) ) relied on by Petitioner addressed the relation-

ship between the NLRB’s jurisdiction and that of ar-

bitrators.

Moreover, this Court in N.L.R.B. v. Acme Industrial

Co., 385 U.S. 482 (1967) noted that the Steelworker’s

Trilogy “. . . dealt with the relationship of courts to

arbitrators . . .” and that “(t]he relationship of the

Board to the arbitration process is of a quite different

order.” Id. at 436. The Court concluded that:

. to view the Steelworkers decisions as auto-

matically requiring the Board in this case to defer

to the primary determination of an arbitrator is to

overlook important distinctions between those cases

and this one. (Id. at 437).

Thus, the Court has already rejected Petitioner’s argu-

ment that the Trilogy requires the Board to defer to

arbitration.

The Board Has Plenary Authority To Decide Unfair

Labor Practice Cases And Complete Discretion Regard-

ing Deferral To Arbitration.

Petitioner’s argument implies that the National Labor

Relations Board has no jurisdiction to reconsider in an

unfair labor practice case, a matter which has been the

subject of a prior arbitration decision. In other words,

Petitioner appears to argue that the Steelworker’s

Trilogy is inconsistent with the NLRB’s Spielberg doc-

trine. A review of the post Trilogy cases dealing with

the Board’s jurisdiction, vis a vis arbitration, reveals

just the opposite, namely, that the Board has full au-

thority to decide whether particular acts constitute an

6

unfair labor practice, even though such acts may also

be claimed to constitute a violation of a collective bar-

gaining agreement. In other words, the Board is not

required in such circumstances to defer to arbitration,

nor is it bound to accept in all instances an arbitrator’s

determination. In Carey v. Westinghouse Electric Corp.,

375 U.S. 261 (1964), this Court expressly approved the

Board’s Spielberg doctrine and recognized that under

that doctrine the Board’s jurisdiction is superior to that

of an arbitrator. There the Court said: “[s]hould the

Board disagree with the arbiter . . . the Board’s ruling

would, of course, take precedence... .” 375 U.S. at 272.

In Carey, the Court cited with approval the following

language taken from the Board’s decision in International

Harvester Co., 188 NLRB 923, 927 (1962) in which the

Spielberg doctrine was extended to representation cases:

There is no question that the Board is not precluded

from adjudicating unfair labor practice charges

even though they might have been the subject of an

arbitration proceeding and award. Section 10(a) of

the Act expressly makes this plain, and the courts

have uniformly so held. (375 U.S. at 271).*

In N.L.R.B. v. Plasterers’ Local 79, 404 U.S. 116 (1971),

another post Trilogy case, this Court again expressed

the view that the Board is not required to honor ar-

bitration awards in all circumstances:

3In International Harvester, the Board further enunciated the

rationale of Spielberg:

If complete effectuation of the Federal policy is to be achieved,

... the Board . . . should give hospitable acceptance to the

arbitral process as ‘part and parcel of the collective bargaining

process itself,’ and voluntarily withhold its undoubted authority

to adjudicate alleged unfair labor practice charges involving

the same subject matter, unless it clearly appears that the

arbitration proceedings were tainted by fraud, collusion, un-

fairness or serious procedural irregularities or that the award

was clearly repugnant to the purposes and policies of the Act.

(138 NLRB at 927).

7

Although the Board is not statutorily required to

honor arbitration awards in such situations, it often

defers to them if the arbitrator has considered the

alleged unfair labor practice. [citing Spielberg and

International Harvester) (Id. at 137).

Only last year in Alexander v. Gardner-Denver Co., 415

U.S. 36 (1974) the Court, speaking through Justice

Powell, discussed the relationship of the NLRB and ar-

bitration as follows:

{[Tjhe Court has recognized that consideration of

the claim by the arbitrator as a contractual dis-

pute under the collective-bargaining agreement does

not preclude subsequent consideration of the claim

by the National Labor Relations Board as an un-

fair labor practice charge .. . under the Act. Carey

v. Westinghouse Electric Corp., 375 U.S. 261 (1964).

Cf. Smith v. Evening News Assn., 371 U.S. 195

(1962). There . .. the relationship between the

forums [arbitration and the NLRB] is comple

mentary since consideration of the claim by both

forums may promote the policies underlying each.

(415 U.S. at 50-51).

Thus, Justice Powell expressly recognized that the

Federal labor policy favoring arbitration and _ the

NLRB’s Spielberg doctrine are complementary. Hence

the Court has expressly rejected Petitioner’s position that

the two policies are inconsistent.

Contrary To Petitioner’s Claim, The Spielberg Standards

Were Properly Applied And The Fourth Circuit Was

Justified In Enforcing The Board’s Order.

Inconsistent with its argument that the Steelworker’s

Trilogy vitiates the Spielberg doctrine and deprives the

Board of any discretion with respect to deferral to ar-

bitration, Petitioner also contends that the Spielberg

standards were misapplied. It is argued that the Ad-

ministrative Law Judge, the Board and, consequently,

—

/-.

8

the Fourth Circuit erred, first, in finding that Amstar

was not bound by the labor agreement with respect to

representation of the Pinkerton guards and, second,

that the Award was repugnant to the policies of the

Act. With respect to the first point, the Administrative

Law Judge based his conclusion that Amstar was not

bound by the agreement with respect to representation

of the Pinkerton guards on evidence showing that Amstar

had never delegated any authority to the Steamship

Trade Association to negotiate on its behalf (App. B

at 7a). He further relied on undisputed evidence that

Pinkerton has never been a member of the multi-em-

ployer association and has never delegated any authority

to that Association to negotiate on its behalf (App. B

at 6a-72). Finally he relied on uncontradicted evidence

which showed that Amstar had never posted the $500

bond required of employer members of the Association

whose employees were covered by the labor agreement

with Petitioner (App. B at 13a n.2).

With respect to the second point, namely Petitioner’s

contention that the Award is not repugnant to the

policies of the Act, we would simply point out that this

Court has long held that entering into a contract with

a minority union is a violation of Section 8(b) (1) (A)

on the part of the Union. /nt’l. Ladies Garment Workers

Union Vv. N.L.R.B., 366 U.S. 731 (1961). A representa-

tive of Petitioner admitted at the hearing that the Union

never claimed to represent any of the Pinkerton guards

(App. B at 9a-10a). For all of these reasons, Petitioner’s

contention that the Spielberg criteria were misapplied

in this case is without merit. On the contrary, the fore-

going evidence described in the Administrative Law

Judge’s decision constitutes substantial evidence on the

record as a whole supporting the Board’s decision and

justifying enforcement by the Fourth Circuit.

9

CONCLUSION

—_— the foregoing reasons, the Petition for Writ of

Certiorari should be denied,

Douc.as K. MAGARY

Attorneys for Respondent

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

1819 H Street, N. W.

Suite 750

Washington, D.C. 20006

DATED: April 21, 1975

f

JOHN D. O’Brien

:

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