Opposition Brief — R. L. Sweet Lumber Co. v. National Labor Relations Board

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-321

R.L. SWEET LUMBER COMPANY, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

55-76) is reported at 515 F.2d 785. The Board’s de-

cision and order (Pet. App. 1-54) are reported at 207

NLRB 529.

JURISDICTION

The judgment of the court of appeals (Pet. App.

77-78) was entered on June 5, 1975. The petition for

a writ of certiorari was filed on August 29, 1975. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

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QUESTION PRESENTED

Whether the Board’s findings that the Company

violated the National Labor Relations Act by unilaterally

changing the wages and working conditions of a unit

of its employees, refusing to negotiate with their bar-

gaining representative, compelling them to join another

union, and applying that union’s contract to them were

barred by the six-month limitations period in Section

10(b) of the Act.

STATUTE INVOLVED

Section 10(b) of the National Labor Relations Act,

as amended (61 Stat. 146, 29 U.S.C. 160(b)) is set

_ forth in pertinent part at pp. 3-4 of the petition.

STATEMENT

Since 1952 R.L. Sweet Lumber Company (“the

Company”) has operated a lumber business on Roe

Boulevard in Kansas City, Kansas, where, in addition

to selling lumber and other building materials, it man-

ufactured and sold millwork and single-package prefab-

ricated homes (Pet. App. 5-6). The manufacturing em-

ployees were members of Carpenters Local 1635, Car-

penters District Council of Kansas City, AFL-CIO

(“the Carpenters”), and were represented in a

separate unit of that union under a collective bar-

gaining agreement (Pet. App. 6). Another unit com-

posed of warehouse and yard employees was repre-

sented by Teamsters Local 541 (Pet. App. 5-6).

Because the prefabricated home operation needed ad-

ditional space, the Company decided to build a new

plant for that operation at Olathe, Kansas, 19 miles

from the Roe Boulevard plant. Construction of the new

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plant began in 1971, at which time the Company also

separately incorporated the prefabricated home operation

and changed its name to Standard Homes Company

(Pet. App. 6, 7).

In January 1972, with the new plant almost completed,

the Company transferred an employee from the Teamsters

unit at Roe Boulevard to Olathe and hired three new

employees to unload the initial lumber deliveries and to

do preparatory work, prior to commencement of pro-

duction (Pet. App. 8, 9). On January 24, the 4 em-

ployees were visited by a Teamsters Local 541 business

agent and signed authorization cards. Standard Homes

Company subsequently recognized the Teamsters and, on

February 11, executed a contract with that union which

ran from February 7, 1972 until February 2, 1975 (Pet.

App. 9). The contract covered “all production and main-

tenance employees at the Employer’s Olathe, Kansas plant

including truck drivers,” and contained a union security

clause requiring all employees to join Teamsters Local

541 within 31 days of employment (Pet. App. 60).

In mid-February 1972, the Company began interviewing

pre-fab employees at Roe Boulevard about working at

Olathe. Four employees who were members of the Car-

penters unit agreed to the change and began work

at Olathe between February 23 and February 29, 1972

(Pet. App. 10, 28, 60-61). Prefab production began

at Olathe on February 29, with the four employees

doing the same work with the same tools as they

had at Roe Boulevard (Pet. App. 28). However, the

Teamsters contract, with lower wage rates and dif-

ferent benefits than the Roe Boulevard Carpenters

contract, was applied to the prefab workers

(ibid.). They were told that the Teamsters

would be the only union at Olathe and were co-

erced by the Company into joining that union (Pet.

App. 28-30).

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On February 20, after having been notified of the

impending transfer of one of the Carpenters unit em-

ployees to Olathe, a Carpenters representative requested

bargaining concerning the transfer. The Company re-

plied that the Olathe facility was a wholly owned Del-

aware corporation and was not part of Sweet Company.

“Hence * * * [there was] nothing to discuss” (Pet.

App. 11). In March and April, further requests to bargain

about the transfer were also denied (Pet. App. 12-13).

On August 18, 1972, the Carpenters filed an unfair

labor practice charge against the Company (Pet. App.

1-2).

The Board found that the Company’s Roe Boulevard

and Olathe operations constituted a single employer with-

in the meaning of the Act (Pet. App. 16-21), and that

the latter’s prefab operations constituted an accretion to

the former’s Carpenters unit (Pet. App. 21-25). The Board

therefore concluded that the Company violated Section

8(a)(5) and (1) of the Act by unilaterally changing

the wages and working conditions of the prefab employ-

ees after their transfer to Olathe, and by failing to

recognize and bargain with the Carpenters as_ their

representative (Pet. App. 33). The Board also concluded

that the Company violated Section 8(a)(2), (3), and (1)

of the Act by applying the Teamsters contract to the

Olathe prefab employees and by insisting that they be-

come members of that union (Pet. App. 30-31).

The Board refused to find that the execution of the

contract with the Teamsters was an unfair labor prac-

tice because that event had occurred prior to the six-

month limitations period of Section 10(b) of the Act

(Pet. App. 26).! However, the Board found that the

‘The charge was filed on August 18, 1972 (Pet. App. 1).

The six-month period = of — limitations — therefore — excluded

unfair labor practice prior to February 19, 1972 (Pet.

App. 26, n. 36). The collective agreement was executed on

| February 11, 1972 (Pet. App. 25).

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unfair labor practices of refusal to deal with the Car-

penters concerning the prefab employees, unilateral

changes in those employees’ benefits, and compulsion

of the employees to join the Teamsters occurred

within the six-month period and were therefore not

time barred (Pet. App. 27).

The Board ordered the Company, inter alia, to bargain

with the Carpenters as the representative of the Olathe

prefab employees, to withdraw recognition from the Team-

sters as the representative of those employees, to cease

applying the Teamsters contract to those employees, and

to reimburse them for losses they may have incurred

due to the Company’s unlawful conduct (Pet. App. 39-

41, 43-48).

The court of appeals upheld the Board’s decision and

enforced its order (Pet. App. 55-76). In agreeing with

the Board that the violations were not barred by Section

10(b) of the Act, the court rejected the Company’s

argument that the violations were grounded on execution

of the collective agreement, concluding rather “that the

substantial active conduct adversely affecting the Car-

penters union and those whom it was entitled to re-

present, and constituting the unfair labor practices found,

fell within the six month period” (Pet. App. 68). The

court specifically rejected petitioner’s argument, repeated

here, that Local Lodge No. 1424, Machinists v. National

Labor Relations Board (Bryan), 362 U.S. 411, and appellate

decisions following it require a contrary result (Pet. App.

63-68).

ARGUMENT

In Bryan, supra, 362 U.S; at 419, this Court held

that, where “a collective bargaining agreement and its

enforcement are both perfectly lawful on the face of things,

and an unfair labor practice cannot be made out ex-

cept by reliance on the fact of the agreement's orig-

inal unlawful execution, an event which, because of

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limitations, cannot itself be made the subject of an

unfair labor practice complaint,” the policies underlying

the Section 10(b) limitations period preclude converting

“what is otherwise legal into something illegal.”? In

an attempt to fit this case within Bryan, petitioner as-

serts (Pet. 10, 15) that the gravamen of the charge

here was that the Company had executed a collective

agreement with a “minority” union, an event that

occurred outside the Section 10(b) period. Petitioner mis-

conceives the nature of the unfair labor practices found

by the Board.

As shown above, the Board refused to find, as charged

in the complaint, that the Company unlawfully assisted

the Teamsters by executing, on February 11, 1972, a

contract with it before a representative complement of

material handlers were hired, holding that such a finding

was barred by Section 10(b). The gravamen of the

charges that the Board upheld is that the Company

enforced that contract against the prefab employees whom

the Teamsters “did not represent * * * since, despite their

assignment to Olathe, such employees continued to be

included in the Carpenters unit at Roe Boulevard”

(Pet. App. 27). This action, as well as the Company’s

subsequent refusal to bargain with the Carpenters respect-

ing the Olathe prefab employees, occurred after Feb-

rary 19, 1972,3 when the 10(b) period began, and con-

stitutes unfair labor practices wholly apart from the

existence, or validity, of the Company’s contract with the

Teamsters.

2In Bryan the employer, outside the 10(b) period, had entered

into an exclusive recognition contract, with a union security clause,

at a time when the union did not represent a majority of the

employees. His only action within the 10(b) period consisted of

enforcement of that contract, which was valid on its face.

‘Prefab production began at Olathe on February 29, 1972

(supra, p. 3).

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Tennessee Products & Chemical Corp. v. National Labor

Relations Board, 423 F.2d 169 (C.A. 6) (Pet. 16), is

not to the contrary. There, as in Bryan, an unfair la-

bor practice could be found only by establishing that

a contract, valid on its face, was entered into with the

employer’s unlawful assistance, an event which occurred

outside the 10(b) period (423 F.2d at 179-180). In National

Labor Relations Board v. Brown, 310 F. 2d 539 (C.A.

9) (Pet. 17), the “formation of the Association, execu-

tion of the employer-Association contracts, and adoption

of the constitution and by-laws of the Association all

occurred” outside the 10(b) period, and there was “no

substantial evidence in the record to support the finding

of the Board that Respondent Employer within the six

months period dominated, interfered with, or supported

the Association” (310 F.2d at 545-546). Here, as shown,

there was “substantial evidence” of unfair labor practice

conduct occurring within the 10(b) period.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

RoBertT H. Bork,

Solicitor General.

JOHN C. MILLER,

Acting General Counsel,

JOHN S. IRVING,

Deputy General Counsel,

NorTON J. COME,

Deputy Associate General Counsel,

LINDA SHER,

SANDRA SHANDS ELLIGERS,

Attorneys,

National Labor Relations Board.

NOVEMBER 1975,

DOJ-1975-11