Petition for Writ of Certiorari — R. L. Sweet Lumber Co. v. National Labor Relations Board

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AUG 29 1975

No. 5 -32 1 ' MICHAEL RODAK, JR.,

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1975

R. L. SWEET LUMBER COMPANY,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Charles E. Hoffhaus,

HILLIX, BREWER, HOFFHAUS,

GRIER & WHITTAKER

2715 Commerce Tower

Kansas City, Mo. 64105

Attorneys for Petitioner

August 25, 1975

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INDEX

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Gpanions Beléw. is .9k 6 ss

et

Question Presented for Review.

Statutory Provision Involved .

Statement of the Case ....

Reasons for Granting the Writ.

I Se ete a eg

Appendix A (Decision and

Proposed Order of Admini-

SO FP WWDN ND

~

strative Law Judge) ...... 1 App.

Appendix B (Decision and Order

of National Labor Relations

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Appendix C (Opinion of Court of

Appeals for the Tenth Circuit). 55 App.

Appendix D (Judgment of Court of

Appeals for the Tenth Circuit). 77 App.

AUTHORITIES

Cases Page

Local No. 1424, International

Machinists v. NLRB, 362 U.S.4ll

(1960) 4L.Ed. 2d 832, 80 S.Ct.

et bie s-60 5 6 «4 5's << ~ & -2te Ll

NLRB v. Brown (CCA9, 1962), 310

SO Se. Sr a ee be

Tennessee Products Chemical Corp.

Vv. NLRB, (CCA6, 1970), 423 F2d

Mab tate: ww ee se Se we

Statutes

oe Gemccuns S160). . i + ik tt 3

(i)

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

R. L. SWEET LUMBER COMPANY,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The petitioner, R. L. SWEET LUMBER

COMPANY, respectfully prays that a writ

of certiorari issue to review the judg-

ment and opinion of the United States

Court of Appeals for the Tenth Circuit

entered in this proceeding on June 5,

1975.

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OPINIONS BELOW

The Decision and Proposed Order of

the Administrative Law Judge, Case No.

17-CA-5292, John F. Corbley, Administra-

tive Law Judge, is unreported and is

“a vanes

printed in Appendix A, infra, pp. 1 - 52,

App. (The Appendix("App.") is printed

and paginated separately). The Decision .

and Order of the National Labor Relations

Board is reported at 207 NLRB No. 89 and

1974 CCH NLRB 425,971 (see Appendix B,

infra, pp. 53 - 54, App.). The Opinion

of the Court of Appeals tox Os Tenth

Circuit is reported at 515 F.2d 785 (see

Appendix C. infra, pp. 55 - 76, App.).

JURISDICTION

The judgment of the Court of Appeals

(see Appendix D, p. 77, App., infra) was

entered on June 5, 1975. The jurisdic-

tion of this Court is invoked under 28

U.S.C.A. §1254(1).

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PULIUE Cl, I ate ATU ANT MA

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QUESTION PRESENTED FOR REVIEW

Does the continuing recognition and

enforcement by an employer after the

barred statutory limitations period, of

a labor contract entered into with a

union which did not represent a majority,

as in this Court's 1960 Bryan decision

cited infra, constitute an actionable

unfair labor practice (or is this Court

willing to allow Bryan to be ignored) ?

STATUTORY PROVISION INVOLVED

Section 10(b) of the National Labor

Relations Act, 29 U.S.C.A. §160(b), p.5,

provides in pertinent part:

That no complaint shall issue

upon any unfair labor practice

Occurring more than six months

prior to the filing of the

charge with the Board [National

Labor Relations Board] and the

service of a copy thereof upon

the person against whom such

charge is made, unless the per-

son aggrieved thereby was pre-

vented from filing such charge

by reason of service in the armed

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forces, in which event the six-

month period shall be computed

from the day of his discharge,

STATEMENT OF THE CASE

Petitioner, R. L. Sweet Lumber Com-

pany, a Missouri corporation qualified

to do business in Kansas (the "Company" )

has operated a lumber business since 1952

on Roe Boulevard in Kansas City, Kansas

where, as well as selling lumber and

other building materials, it has manu-

factured and sold millwork such as win-

dows, doors and room dividers, and also

single-package prefabricated homes. The

prefab home manufacturing activity was

known as the Stardard Homes Division. It

was not a separate legal entity until

November 1971, at which time the name

of an available subsidiary was changed to

Standard Homes Company and the prefab

equipment was sold to that subsidiary.

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The prefab manufacturing employees at Roe

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Boulevard, some 16 in number, were mem-

bers of Carpenters Local 1635 and were

represented by the Carpenters' District

Council of Kansas City and Vicinity,

AFL-CIO, ("Union" or "Carpenters") in a

separate unit. Seven or eight of these

employees spent all or most of their time

in prefabrication and assembly of the

packaged homes. Another unit, composed

of warehouse and yard employees (e.g.,

lumber handlers, truckdrivers, loaders,

DOO LE ey IF a ballads

forklift operators, stockmen, etc.), was

represented by Teamsters Local 541.

Because its prefab home operation

at Roe Boulevard was cramped and ineffi-

NC a COO RIED BP AER

ciently organized, the Company decided in

about 1970 to build a new plant at Olathe,

at a 5 as

Kansas, about 19 miles away and the part-

ies stipulated to the economic necessity

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of this move. In January 1972, with the

new plant almost completed, Standard Homes

Company hired four new employees to work

at the Olathe plant. (At least three of

these initial four employees later worked

On the production line for prefab homes at

Olathe.) During their first month, before

production started, these four men unloaded

the initial lumber deliveries at Olathe and

did carpentry work, building racks and

other facilities preparatory to the manu-

facture of prefab homes.

On January 24, 1972, a business agent

of Teamster Local 541 visited Olathe and

obtained signed authorization cards from

all four men and presented them to the

Company. Standard Homes Company and Team-

sters Local 541 executed a contract on

February 11, 1972 (the "Olathe contract")

which ran from February 7, 1972 until

February 2, 1975, with a provision for

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automatic renewal. The contract gave

Local 541 representation over "all produc-

tion and maintenance employees at the Em-

ployer's Olathe, Kansas, plant including

truck drivers". One of its provisions re-

quired unit employees to join Local 541

after 31 days of employment.

By its later actions, including

actions considerably more than six months

after the signing of the Olathe contract,

the Company (and its subsidiary Standard

Homes Company) gave lawful recognition

and enforcement to the Olathe contract

by advising new Production and maintenance

workers that they were subject to the con-

tract with Teamsters Local 541, checking

off dues, paying the wage scale referred

to therein, and in general adhering to the

terms thereof. The Carpenters sought, and

the Company declined, bargaining with re-

spect to the Standard Homes production

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workers in about February of 1972, and

later Carpenters grievance and arbitration

attempts were also rejected by Company,

because of the binding effect of the

Teamsters contract. :

This proceeding was initiated by an

unfair labor practice charge filed by

the Carpenters and served on the Company

on August 18, 1972 (six months and seven

days after the date of signing the Olathe

Teamsters contract). As hereinafter noted,

the District Director dismissed the

original charge, but it was later rein-

Stated by direction from the National

office. The case was heard before the

U. S. Tenth Circuit Court of Appeals upon

the application of the National Labor Re-

lations Board pursuant to jurisdiction

granted by Section 10(e) of the National

Labor Relations Act, as amended (61 Stat.

136, 73 Stat. 519, 29 U.S.C. Sec. 151, et

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GAEDE TACO, MMU SAR TNA TM HORE Ae

TERA IP EL

seq.), for enforcement of its order issued

against the Company on November 23, 1973.

.That Court had jurisdiction of the pro-

ceeding, the alleged unfair labor practices

having occurred in the State of Kansas.

Judgment was entered by the U. S. Tenth

Circuit Court of Appeals on June 5, 1975

enforcing the aforesaid order of the NLRB

against Company.

REASONS FOR GRANTING THE WRIT

The reasons for granting the writ are

two:

(a) The Bryan NLRB statute of limit-

ations case, decided by this Court on vir-

tually identical facts, and cited infra,

was not followed by the Court of Appeals,

opening the way for burdensome disposition

of a huge volume of otherwise time-barred

unfair labor practice cases.

(b) The decision of the Tenth Cir-

cuit Court of Appeals is in conflict with

aa

those of other circuits on the same

issue, thereby inviting the exercise of

this Court's power of supervision to foster

uniformity.

This appeal assumes arguendo that

(1) in early February, 1972 (pre-February

19) the Teamsters card-signers were in the

minority insofar as the eventual unit was -

concerned, as in the Bryan case; (2) Stand-

ard Homes was the alter ego of the Company;

(3) all work granted to the Teamsters by

the contract of February 11, 1972 (i.e.,

all production and maintenance work) was

work previously contracted to a certified

union, Carpenters Local 1635 of the K. C.

Carpenters District Council, as in the

Bryan case; and (4) that the contract con-

tinued to be enforced and maintained by

Company and Standard Homes after the six

month limitations period, as in the Bryan

case.

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The Regional Director (who dismissed

the original charge), the Law Judge, the

Board and the Court of Appeals all agreed

with Company that the recognition of, and

execution of a contract with, the Team-

sters at the Olathe plant are not action-

able because these two actions are barred

because of this Court's ruling in Bryan.

The only dispute is over later enforcement.

The issues herein were all decided by

this Court in Local No. 1424, International

Machinists v. NLRB, 362 U.S. 411 (1960)

4 L.Ed. 2d 832, 80 S. Ct. 822, commonly

known as the Bryan Manufacturing Company

case. The Bryan case dealt with the appli-

cation of Section 10(b) of the National

Labor Relations Act, as amended, 61 Stat.

146, 29 U.S.C. §160(b) which provides, in

pertinent part, as follows:

"Provided, that no complaint shall

issue based upon any unfair labor

practice occurring more than six

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$6 INE ELM

months prior to the filing of the

Charge with the Board and the serv-

ce of a copy thereof upon the per-

son against whom such charge is

made***" (Emphasis supplied)

This Court cited the legislative his-

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tory of the Section to the effect that it

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was designed to bar litigation over past

events "after records have been destroyed,

witnesses have gone elsewhere, and recol-.

lections of the events in question have

become dim and confused" (l.c. 419).

In the Bryan case, this Court made it

clear that events barred by the limitation

cannot be used to "taint" later events

which are not, in and of themselves (and

without reference to barred unfair prac-

tices), unfair. |

Yet the Court below, ignoring this

prohibition, felt free to look at later

hirings and enforcement of Teamsters'

wages, check-off, pension, and other con-

tract terms in isolation, even though pre-

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dicated on the barred contract. This

Court thoroughly explored this issue in

the Bryan case, and succinctly stated that

(l.c. 423):

"In any real sense, then, the

complaints in this case are

"based upon' the unlawful execu-

tion of the agreement, for its

enforcement, though continuing,

is a continuing violation solely

by reason of circumstances exist-

ing only at the date of execution.

To justify reliance on those cir-

cumstances on the ground that the

maintenance in effect of the

agreement is a continuing viola-

tion is to support a lifting of

the limitations bar by a character-

ization which becomes apt only when

that bar has already been lifted.

Put another way, if the §10(b) pro-

viso is to be given effect, the en-

forcement, as distinguished from

the execution, of such an agreement

as this constitutes a suable unfair

labor practice only for six months

following the making of the agree-

ment." (Emphasis is the Court's).

Standing alone, Company's acts were

totally innocuous and it is only by lifting

the bar and finding the inception of the

agreement to be an unfair labor practice

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that the General Counsel seeks to chal-

lenge them.

The Court below suggests that Bryan

can be selectively applied because the

original minority union was not a repre-

sentative complement as to the prefab em-

ployees. The avowed purpose of the NLRB,

according to its counsel, was to splinter

off from the Bryan case situations (such

as here) where the barred contract was made

with a "minority" union. Would this Court

allow Bryan thus to be distinguished and

rendered ineffective? This would open the

floodgates to time-barred labor litigation!

The factual background revealed by the

appellate history of the Bryan case shows

that the majority Bryan employees (the

U.A.W. adherents) were in the same relative

position as the complaining Carpenters here

and the issue was decided against the

U.A.W. and for the minority union (Machin-

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ists). If the "complement" was "not rep- t

resentative," that very situation obtained

on February 11, 1972 when the Teamsters'

contract was signed. (Actually, there was

a representative complement since at least

three of the original four Teamsters card

signers later worked as production workers

on the line.)

The whole thrust of Bryan was to pro-

tect companies in time-barred minority

union situations such as this. In Bryan,

this Court said (l.c. 425, f£.n.16):

"16. The immediate impetus of the

legislation was the pendency of an

NLRB proceeding involving a closed-

shop agreement in effect at the

Kaiser shipbuilding yards in Port-

land, Oregon. The agreement, though

executed at a time when only 66

workers were employed, was being

applied to a 20,000-man work force.

The debates show that the issue of

representation by minority unions

was in the forefront of legislative

concern." (Emphasis supplied)

The Bryan case dealt with an extreme minor-

ity union situation. As Mr. Justice

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Whittaker pointed out in his dissent

(l.c. 433, f£.n.1):

"In fact the undisputed testimony

was that the union did not then

represent a single one of the em-

ployees, and that the employer

acceded to the union's demand for

recognition and entered into the

contract simply because the union

had it ‘over a barrel'" (Emphasis

supplied. )

The other Circuit Courts of Appeal have

uniformly followed the holding of this

Court in the Bryan case. Typical of these

cases is the opinion of the Sixth Circuit

in Tennessee Products Chemical Corp. vs.

NLRB, 423 F.2d 169 (CCA6 1970), dealing

with enforcement of a time-barred contract

Similar to that in the instant case, and

following Bryan, supra. In that case, as

here, the employer was alleged to have con-

tracted with a minority union which did not

actually represent the employees in the

unit at the time of the contract. That

minority non-representative condition con-

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tinued, but the Court refused to apply a

"continuing violation" theory after the :

barred period. The Court said (l.c.

De MSien ewe

180):

"The charge of violation of

Section 8(a)(1) and (2) was

not made until July 1, 1965,

almost a year after the ac-

cused contract or contracts

of July 16, 1964. If there

was a violation, that is

the date it occurred. The

assertion of the Board that

the contract, to run for

three years, was a contin-

uing violation, was consid-

ered and disposed of by the

Supreme Court's opinion in

[Bryan] (citing the quota-

tion, supra, from p.423 of

the Bryan case).

To like effect (§10(b) running from date

of contract) was NLRB’ vs. Brown, (CCA 9,

1962), 310 F.2d 539.

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that this peti-

ah Pu

tion for a writ of certiorari should be

granted.

August 25, 1975.

HILLIX, BREWER, HOFFHAUS,

GRIER & WHITTAKER

By

Charles E. Hoffhaus

2715 Commerce Tower

Kansas City, Mo. 64105

Phone: (816) 221-0355

Attorneys for Petitioner.

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