Reply Brief — St. Vincent Medical Center v. Service Employees Intenational Union

No. 03-1083

In The

Supreme Court of the United States

ST. VINCENT MEDICAL CENTER; DAUGHTERS OF

CHARITY HEALTH SYSTEMS INC.,

Petitioners,

Vv.

SERVICE EMPLOYEES INTERNATIONAL

UNION; SERVICE EMPLOYEES

INTERNATIONAL UNION, LOCAL 399,

: Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITIONERS’ REPLY BRIEF —~

ROBERT F. MILLMAN PHILIP L. Ross *

LITTLER MENDELSON — LITTLER MENDELSON

A Professional Corporation A Professional Corporation

2049 Century Park East 650 California Street

5th Floor 20th Floor

Los Angeles, CA 90067-3107 San Francisco, CA 94108-2693

(310) 553-0308 (415) 433-1940

Counsel for Petitioners

March 16, 2004 * Counsel of Record

AMERICAN FINANCIAL PRINTERS ® (202) 464-5500

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

International Bhd. of Boilermakers [etc.] v. Hardeman,

ME TT, FI ED sevceteicansdcaitncisgeiciacceceniabanainnilas 6

Iowa Elec. Light & Power Co., 668 F.2d 413 (8th Cir.

III axesisnextiinncvscosexctansalininicmeainiicese aaa sa neioenianane aaa 7,8

K-Mart Corp., 336 NLRB 455 (2001) .............cscssccssssssseees 8

New York Health and Human Serv. Union, 1129/SEI1U v.

NYU Hospitals Center, 343 F.3d 117 (2d Cir. 2003) .... 6-8

NLRB v. A.J. Tower Co., 329 U.S. 324 (1946) ................. 5

NLBB v. Dixie Lime & Stone Co., 737 F.2d 1556 (11th

Cr FI ivasssinxndccteemicciomenccinanens ana 6

NLRB v. Reliance Steel Products Co., 322 F.2d 49 (5th

Ra REED cncesinnnssinesivetvaziandibaeceseyiiaeaadiaennesiaaeaneenaale 7

NLRB v. Southern Health Corp., 514 F.2d 1121 (7th Cir.

BIRT OD -kniciscsvcciccnsieensnntenraneeiniguniesiuand und ead ae 5

Pontiac Ostepathic Hosp., 336 NLRB 1021 (2001) .......... 8

Tyler Pipe Industries, Inc., 180 NLRB 880 (1970) ........... 4

Administrative Rules and Regulations:

BO C.F TR. & DOR ccercssiinsasninnnsinssiviatteersammiensszencnaaitneas 4

Other Authorities:

Office of the NLRB General Counsel, An Outline of Law

& Procedure in Representation Cases §22-116 (1999) ..... 3

li

PETITIONERS’ REPLY BRIEF

STATEMENT

In this case, the United States District Court for the

Northern District of California was specifically asked by the

Respondents SEIU to issue an order compelling Petitioner

St. Vincent “to arbitrate the dispute regarding the SEIU’s

objections to the September 26 and 27, 2001 {|NLRB

conducted] election” (ER 5, emphasis added). Ruling on the

complaint to compel before it, the U.S. District Court

properly found that the issue presented by the complaint

was a representational issue that fell within the primary

jurisdiction of the NLRB. Pet. 22a-24a.

Although the SEIU’s complaint to compel arbitration,

by its own terms, was-expressly directed at “objections to the

September 26 and 27, 2001 election,” the SEIU on appeal

sought to engage in a revisionist recasting of its complaint

to assert that it merely desired to have a private arbitrator

rule on whether certain alleged pre-election conduct

violated the parties’ contractual agreement. Although it

cannot seriously be disputed that “objections to an election”

by definition challenge the validity of the results of an

election, the Ninth Circuit Court of Appeals in a footnote in

its Opinion reversing the District Court noted that “it

appears’ the SEIU is not objecting to the result of the

election since the “objections ... consisted of a series of

allegations [the Employer] violated the Agreement.”

Pet.19a n.7. Seizing on this footnote reference, the SEIU

principally argues in its opposition brief that no

representational issue is raised by their complaint to

compel arbitration of election “objections.” However,

contrary to the Ninth Circuit’s mistaken view, even where

based on alleged violations of a private contractual

agreement, “objections” to an election necessarily raise a

representational! issue within the NLRB’s exclusive primary

jurisdiction. Thus, the principal argument raised by the

SEIU in opposition to certiorari is groundless, and

exemplifies the need for this Court’s intervention to clarify

and reaffirm what had been commonly understood before

the Ninth Circuit’s ruling — that deciding “objections” to an

NLRB election is a matter peculiarly within the NLRB’s

special administrative expertise and primary jurisdiction.

The other assertions raised by the SEIU in opposition

to the petition for certiorari are equally without merit. The

SEIU argues that the Ninth Circuit’s opinion conflicts with

no other « ourt ruling, but it can only make that argument

by ignoring many of the cases cited in the Petition. Indeed,

the opposition reveals a deeper division among the circuits

than the Ninth Circuit’s ruling alone. The opposition next

argues that any remedy an arbitrator might issue in

deciding the union’s untimely election objections is

irrelevant. This, however, begs the fundamental question

of whether an arbitrator should be permitted at all to

consider belated election objections to an NLRB-conducted

election proceeding that has long been certified and closed.

Finally, the SEIU argues the NLRB’s Stipulated Election

Agreement and the NLRB’s Rules and Regulations

requiring that election objections be brought before the

NLRB can supposedly be avoided simply by a party

bringing a wholly collateral arbitral proceeding in disregard

of those legal obligations. This argument plainly fails as a

matter a circular logic.

ARGUMENT

1. The SEIU devotes much of its brief to repeatedly

asserting that it was not seeking to compel arbitration of

any challenge to the NLRB-conducted election in this case

that resulted in the SEIU being denied certification as the

employees’ collective bargaining representative. However,

the SEIU does not and cannot dispute that the bringing of

“objections” after an NLRB election has been held is the

procedure by which a party challenges the validity of the

results of the election. As the NLRB has stated: “The

validity of an election may be questioned by filing objections

to the conduct of an election or to conduct affecting the

results of an election. ... Objections may have the effect of

invalidating an electicn. If this occurs, the election may be

‘rerun’...” Office of the NLRB General Counsel, An Outline

of Law & Procedure in Representation Cases §22-116 (1999).

The SEIU’s complaint before the U.S. District Court

expressly sought an order compelling Petitioner “to

arbitrate the dispute regarding the SEIU’s objections to the

September 26 and 27, 2001 election” (ER 5, emphasis

added). The complaint did not state, as the SEIU claimed

for the first time before the Ninth Circuit and as it would

now have this Court believe, that the union was simply-

seeking arbitration of alleged pre-election contractual

violations that had no claimed impact on the election. On

the contrary, the complaint to compel arbitration

specifically stated that “following the election, in accordance

with Section IJ.E.16 of the Agreement, the Union filed

objections to the election” consisting of allegations that the

Employer violated the Agreement. (ER 4 4 14). Section

II.E.16 of the parties’ Agreement states:

Recognition: The Employer agrees to

recognize the Union as the collective

bargaining agent on behalf of employees in

any appropriate unit at facilities where a

majority of employees voting, vote for union

representation, subject to the decision of the

Arbitrator or Election officer resolving any

outstanding objections to the election. Such

objections must be filed by either party

within three working days of the election.

Upon certification of the Union as the

collective bargaining representative, the

parties will immediately commence good

faith negotiations over the applicable

contract...”

(ER 8-9). As the SEIU’s own complaint admits that the

election objections in this case were expressly brought

pursuant to a “recognition” clause under which objections

are raised as an integral part of the process of deciding

whether there should be a “certification of the Union as the

employees’ collective bargaining representative,” it plainly

shows that the Ninth Circuit was incorrect when it found

that the SEIU’s objections to the election “raise no

representational issue” (Pet.App.16a). It also gives proof to

the wholly revisionist nature of the SEIU’s current

assertion that the objections it seeks to arbitrate were

supposedly “not” directed to the result of the election

denying it certification as the employees collective

bargaining representative.

The Ninth Circuit’s holding that the SEIU’s objections

did not raise a representational issue merely because they

were based on alleged pre-election conduct erroneously

applies, and thus undermines, previously established law.

Objections to an election can either challenge the “conduct

of an election” itself (e.g., that the election was not held at

the designated times, that election campaigning was

permitted to occur in the voting area), or “conduct affecting

the result of the election” (e.g., a claim as in the this case

that the election was impermissibly tainted by alleged

wrongful pre-election conduct by one of the parties). See 29

C.F.R. § 102.69(a). As was again discussed more fully in

Petition (Pet. 15-16), objections challenging the result of an

election may be based on pre-election conduct allegedly in

violation of a private agreement between the parties

regulating such conduct. Tyler Pipe Industries, Inc., 180

NLRB 880, 881, 890 (1970). The SEIU’s opposition brief

cites no case authority to the contrary.

{)

)

Thus, the mere fact the SEIU’s objections were based

on alleged violations of a private agreement’s rules

regarding pre-election conduct, does not make those alleged

_ violations when brought as “objections” to an NLRB-

conducted election any less of a matter for the NLRB to

decide under the “primary jurisdiction” rule that is at the

heart of this case. The Ninth Circuit’s holding as described

by the SEIU, that without qualification or exception, “when

allegations in a motion to compel arbitration concern

contractual violations of a private agreement, a district

court must enforce the agreement to arbitrate so long as the

arbitration clause covers the asserted dispute” (Opp. 4),

shows the overbroad and flawed nature of that holding.

When brought as objections to an NLRB-conducted election,

violations of a private agreement’s rules regarding pre-

election conduct remain a matter within the NLRB’s

primary jurisdiction.

The U.S. District court correctly interpreted the SEIU’s

complaint before it as being one to compel private

arbitration of election objections brought as part of the

“recognition” process to determine whether the SEIU should

be certified as the employees’ bargaining representative.

The SEIU’s appellate recharacterization cannot insulate

from review the Ninth Circuit’s erroneous holding

permitting such a “representational issue” to be decided by

an arbitrator rather than the NLRB. This Court should

redress that error.

2. The SEIU in its opposition brief does not address,

because it cannot contest, the fact that this Court and, until

recently, all the other circuit courts of appeals have

uniformly recognized that the determination of “election

objections” is uniquely a matter of an administrative nature

within the NLRB’s special expertise. See, NLRB v. Aid.

Tower Co., 329 U.S. 324, 330 (1946); NLRB v. Southern

Health Corp., 514 F.2d 1121, 1123-1124 (7th Cir. 1975) and

NLRB v. Dixie Lime & Stone Co., 737 F.2d 1556, 1559 (11th

Cir. 1984). Nor does the SEIU dispute that this Court has

also unambiguously declared that under the “primary

jurisdiction” doctrine, federal administrative agencies such

as the NLRB may not be bypassed where the matter at

issue requires just such an exercise of administrative

expertise. International Bhd. of Boilermakers [etc.] v.

Hardeman, 401 U.S. 2338, 238 (1971). Instead of directly

responding to the conflict between the Ninth Circuit’s

Opinion below and these earlier rulings as shown in the

Petition (Pet. 12-17), the SEIU instead tries to point to

another recent appellate court ruling, New York Health and

Human Serv. Union, 1199/SEIU v. NYU Hospitals Center,

343 F.3d 117 (2d Cir. 2003) (“NYU”), which it asserts is

supposedly “on all fours” with the case at the bar (Opp. 6).

In the NYU case, the second circuit did approve private

arbitration of election objections to an NLRB-conducted

election, but as is case with the Ninth Circuit’s ruling

below, the NYU decision also does not try to address, let

alone resolve, the conflict between its ruling and the earlier

decisions of this Court and the other circuit courts holding

that the resolution of election objections requires the

application of special administrative expertise which

prohibits a bypass of the NLRB. If anything, the NYU

ruling shows an even greater split between the circuits, and

a more compelling need for this Court’s intervention to

clarify the law in this area.

Moreover, the NYU case is far from being “on all fours”

with the case at the bar. In the NYU case, the parties’

private agreement permitted arbitral review of election

objections (violations of rules of conduct asserted to have

affected the outcome of the election) only if such objections

were also filed with and still pending before the NLRB.

Then, depending on the arbitrator’s award, there would

either be a party stipulation for a re-run NLRB election or

a voluntary withdrawal of the objections before the Board.

en

Nothing in the private agreement in the NYU case, or in the

NYU court’s opinion, permitted an arbitrator to rule on

election objections after the NLRB had already certified the

results of the NLRB election — as will be allowed here under

the Ninth Circuit’s ruling. As shown in the Petition

(Pet.21-24), to permit such a collateral attack on an already

decided and closed NLRB election proceeding undermines

federal labor policy by creating intolerable industrial

instability. NLRB v. Reliance Steel Products Co., 322 F.2d

49, 55 (5th Cir. 1963).

3. The SEIU’s opposition next argues that this Court

should ignore the Ninth Circuit’s ruling allowing an

arbitrator to rule on belated election objections after the

NLRB has already certified the results of the election

because, according to the SEIU, the arbitrator might issue

only a limited remedy (Opp. 8-10). However, the issue is

not whether an arbitral remedy other than a re-run election

is even possible where the arbitrator is being asked to rule

on alleged election objections, but rather should a private

arbitrator be permitted to even consider belated election

objections to an NLRB-conducted election proceeding that

has long been certified and closed. Permitting an arbitrator

to independently evaluate and rule on untimely election

objections to an NLRB-conducted election, even assuming

the arbitrator were to issue no remedy, still improperly

undermines the finality of the Board’s proceedings. As the

NLRB has already certified that the outcome of the

September 2001 election was entirely proper, there is

nothing left for an arbitrator to consider in the form of

election objections. Again as stated in Jowa Elec. Light &

Power Co., 668 F.2d 413, 419 n. 11 (8th Cir. 1982), “[w]hen

the Board issues an order determining the dispositive

representational issue, no contractual issues remain to be

decided through arbitration or bargaining.” The Ninth

Circuit’s opinion erroneously permits a wholly collateral

proceeding under which an arbitrator can ultimately decide

election objections long after the NLRB has already certified

the results of the election and closed the representation

proceeding.

4. Finally, the SEIU in its opposition (Opp.10-11) again

tries to cite to the NYU case for the broad proposition that

permitting an arbitrator to decide objections to an NLRB

conducted election does not violate the binding nature of the

NLRB’s Stipulated Election Agreement (“SEA”) that

requires ail post-election proceedings comply with the

Board’s rules and regulations. The NYU case, however,

once again presented a different factual situation than

exists here. Under the private agreement in the NYU case,

election objections had to still be timely filed with the

NLRB in accord with the Board’s rules and regulations, to

ultimately be followed (depending on the arbitrator’s

findings) by either a party stipulation for an NLRB re-run

election or a voluntary withdrawal of the objections pending

before the NLRB. Nothing in the NLRB’s rules and

regulations or the terms of the Board’s SEA requiring

compliance with those rules and regulations prohibit either

a stipulated re-run election or a withdrawal of pending

objections as provided in the NYU agreement. See e.g.,

Pontiac Ostepathic Hosp., 336 NLRB 1021, 1026 (2001)

(recognizing an employer and unions have the ability to

stipulate to a re-run election) and K-Mart Corp., 336 NLRB

455, 457 (2001) (recognizing a party’s ability to withdraw its

pending election objections). Here, in comparison, the

Ninth Circuit’s opinion ignores that both the parties’

agreement and the SEA expressly require compliance with

the Board’s rules and regulations that, in turn, require that

post-election objections be timely filed with the NLRB (see

Pet. 19 n. 15), which was admittedly never done in this case.

The SEIU admits that had it filed its election objections

with the NLRB in compliance with requirements of the SEA

that the Board’s Rules and Regulations would apply, but

asserts that since it did not comply with the SEA, the

8

Board’s Rules and Regulations are inapplicable. Opp. 11.

The SEIU’s opposition thus postulates the clearly flawed

and circular proposition that a party can effectively avoid

its legal obligations simply by failing to comply with them.

In sum, despite the SEIU’s revisionist claims, the Ninth

Circuit’s decision below conflicts with the “primary

jurisdiction” doctrine as previously enunciated by this Court

and other courts of appeais recognizing that the resolution

of NLRB election objections requires application of the

NLRB’s special administrative expertise. The Ninth

Circuit’s decision further undermines the NLRB’s election

processes and fosters industrial instability by disregarding

a binding NLRB Stipulated Election Agreement and

permitting a wholly collateral attack on a_ previously

decided and long closed NLRB representation proceeding.

It is imperative that this Court clarify the proper role of the

NLRB versus an arbitrator in the resolution of election

objections to an NLRB-conducted election.

CONCLUSION

This Court should grant the petition for certiorari.

Respectfully submitted,

ROBERT F. MILLMAN PHILIP L. Ross *

LITTLER MENDELSON — LITTLER MENDELSON

A Professional Corporation A Professional Corporation

2049 Century Park East 650 California Street

5th Floor 20th Floor

Los Angeles, CA 90067-3107 San Francisco, CA 94108-2693

(310) 553-0308 (415) 433-1940

Counsel for Petitioners

March 16, 2004 * Counsel of Record