Opposition Brief — AutoZone, Inc. v. National Labor Relations Board

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Jn the Supreme Court of the Unite Srates— “xe

OCTOBER TERM, 1995

AUTOZONE, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

JOHN EMAD ARBAB

Attorney

Nationat Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether substantial evidence supports the findings

of the National Labor Relations Board that: (1) peti-

tioner’s decision to withhold a planned and expected

wage increase during a representation election vio-

lated Section 8(a)(3) of the National Labor Relations

Act (Act), 29 U.S.C. 158(a)(3); (2) a speech by peti-

tioner’s Vice-President blaming that withholding on

the Union violated Section 8(a)(1) of the Act; and (3) a

speech by petitioner’s Chief Executive Officer threat-

ening closure of the plant if the Union won the elec-

tion and permanent job losses following a strike

violated Section 8(a)(1) of the Act.

(I)

TABLE OF CONTENTS

SE PINION Said spntinibesokcdencaidil sc livetsspsditesscoassclecss cadgescs

Jurisdiction

Statement

Argument

COOSOR SPSS OPO S TOS COSE OOOO TOOCOSOOOCOOHOS OSE SEDEDEDEOOeS SOHO OSOLCOCSOoS

COLOOCCOSOSOSOOOOCOHOO HOC ESOOTOHOOOSEOSOCOSOEEEOES OOOO SES COLO LOCSESe

Cg HELE EEARIY SOEERRNC LEN scone N DP NTT AINE Pa Oe re NE eS

Cases:

Atlantic Forest Prods., Inc., 282 N.L.R.B. 855

5 ASRS te Sh ONRSE 9 2E ce nee as EN etna 7,

Bowling Green-Warren County Commu nity Hosp. v.

NLRB, 756 F.2d 41 (6th Cir. 1985) ..............ccc0000---

Cutter Labs., Inc., 221 N.L.R.B. 161 (1975) ..............

Emory Nursing Home, Inc., 260 N.L.R.B. 540

RRC TAGs HEADER SR tone EE EEE oem

Free-Flow Packaging Corp. v. NLRB, 566 F.2d

RANE NE RAPS MUO? ess s dik cdiscloardtcsasskebsaosesnltiedizcaciuin:

Graver Tank & Mfg. Co. v. Linde Air Prods. Co..

336 U.S. 271 (1949), aff'd on reh’g, 339 U.S. 605

SN und dinnidbiiddintbadatcitiicss\ dsdidanshiotiiplccs ccc oe,

TABLE OF AUTHORITIES

Great Atlantic & Pacific Tea Co., 192 N.L.R.B. 645

(1971)

COPS OOOO SEOOSOH HSH OO EOOTESOSOOE SOSH EE SESE OSE OEE OESETOEEEEEOEEESSESE

Hovey Elec., Inc., 302 N.L.R.B. 482 (1991), enforce-

ment granted in part and denied in part on other

grounds, 964 F.2d 543 (6th Cir. 1992) ......................

1981)

POOH SOOO HEHE OSE OH SOE TOTES OOOO OSHS ESOOOEOOE SEE OEEOESO EC OEEESESOSECSECS

Laidlaw Corp., 171 N.L.R.B. 1366 (1968), enforced,

414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S.

TUE LisUih hs cinacccnepstehchaacdenkeieenanbdavadobcliaicr cc ccesiess

Larson Tool & Stamping Co., 296 N.L.R.B. 895

(1989)

SO PCOOOS OOOO EHS OOOOH OOH ESSEC OSEHOOS SOOO OEE OOOOERESEE OE COO OESESOSOOSOOS®S

(IIT)

POCO SOOCSOH OOOO OOSOOOEORECOOEOOSHOEOEO TSE ESEEOC HEED OOS OOOO EOS OOONS

1],

-12

Cases—Continued: Page

Mobil Oil Corp. v. Federal Power Comm’n, 417 U.S.

FEE AE TO) icoksntinasnosemeionitssneaiibiareininunnsbesuiiarcteaieen 11

NLRB vy. Gissel Packing Co., 395 U.S. 575 (1969) ... 14

NLRB vy. Industrial Erectors, Inc., 712 F.2d 1131

CU Rott a: MIOIEE scnnactedaknis a tnnesisleedakcaukscadenshecacomuoniemces 12

NLRB vy. Otis Hosp., 545 F.2d 252 (1st Cir.),

enforcing 222 N.L.R.B. 402 (1976) ............ccccceeeseeees 11

NLRB vy. Planters Peanuts, 574 F.2d 400 (8th Cir.

SUSUR? -cacuichicnicspisisad pednnarvichsidatdcaenanaiaddainebestinad 12

NLRB vy. Service Garage, Inc., 668 F.2d 247 (6th

Ems RUD dcntsiabavdebdupnisctidis dcaniebchietaipacabiaaaiadeniabeittel 11

Plasticrafts, Inc. v. NLRB, 586 F.2d 185 (10th Cir.

EDOO?: ccdiivnciccnntasiniaitshaninimmateteiinaittendiieataidmmainae 12-13

Uarco, Inc., 169 N.L.R.B. 1153 (1968) ...............2..0.. 13

United States v. Johnston, 268 U.S. 220 (1925) .... 10-11

Statutes:

National Labor Relations Act, 29 U.S.C. 151 et seq.:

Fy Oe ee BT. cenkcgintselceteeiceispeasinidicanncadipabipaan 2

$ 8(a)(1), 29 U.S.C. 158(a)(1) ...................00ce00 2, 5, 7, 12

§ 8(a)(3), 29 U.S.C. 158(a)(B) ..............ssesescceeeeeess 2, 5, 10

Jn the Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-116

AUTOZONE, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-21)

is unpublished, but the decision is noted at 83 F.3d 422

(Table). The decision and order of the National Labor

Relations Board (Pet. App. 25-28), and the decision of

the administrative law judge (Pet. App. 29-164), are

reported at 315 N.L.R.B. 115.

JURISDICTION

The court of appeals entered its judgment on April

24, 1996. The petition for a writ of certiorari was filed

on July 22, 1996. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Section 7 of the National Labor Relations Act

(Act) guarantees employees “the right to self-or-

ganization, to form, join, or assist labor organiza- |

tions, * * * and to engage in other concerted

activities for the purpose of collective bargaining or

other mutual aid or protection.” 29 U.S.C. 157. Sec-

tion &8(a)(1) of the Act makes it an “unfair labor prac-

tice” for an employer “to interfere with, restrain, or

coerce employees in the exercise of thlose] rights.”

29 U.S.C. 158(a)(1). Section 8(a)(3) further prohibits

employers from “discrimination in regard to * * *

any term or condition of employment to encourage or

discourage membership in any labor organization.”

29 U.S.C. 158(a)(3).

2. a. Petitioner distributes and sells automotive

parts throughout the United States. In late 1992, the

General Drivers, Warehousemen and Helpers, Local

Union No. 28, International Brotherhood of Team-

sters, AFL-CIO (Union) began an organizing cam-

paign at petitioner’s Greenville, South Carolina dis-

tribution center. Pet. App. 2. When the company

refused to recognize the Union, the Union filed a

representation petition with the National Labor

telations Board (Board). The Board subsequently

scheduled a representation election for March 5, 1993.

Ibid.

b. Petitioner annually adjusts the pay for employ-

ees at its distribution centers. Pet. App. 60; see also

id. at 3. The adjustment depends uruon a wage survey,

which determines whether the company’s wages are

competitive in that area. Because it depends upon a

study of regional factors, the wage adjustment may

vary from one distribution center to another. Fur-

thermore, no adjustment is guaranteed if the survey

reveals that the current pay scale is competitive. Jd.

at 60-61; see also id. at 3.

In November 1992, petitioner’s Vice-President,

Dennis Roberts, visited the Greenville distribution

center. In response to questioning by employees,

Roberts stated that he expected them to receive a

wage increase of between four and five percent, but

this had not yet been confirmed. Pet. App. 4. Roberts

reiterated this expectation two weeks later. bid.

By early January 1993, a wage survey for Green-

ville had been completed, which demonstrated that a

wage adjustment in excess of five percent was appro-

priate. Pet. App. 5, 63. This information, along with

survey data for petitioner’s other distribution

centers, was submitted to Roberts in early January.

On January 11, 1993, Roberts recommended, and the

petitioner’s President approved, wage adjustments for

all of petitioner’s distribution centers, except Green-

ville. Jd. at 4-5, 62.

On January 22, 1993, Roberts delivered a speech to

the Greenville employees in opposition to the Union’s

representation petition. Addressing the withholding

of the wage adjustment, Roberts stated:

A number of you have asked when or if the 4 to 5

percent increase we had mentioned back in Decem-

ber would be going through. You need to under-

stand that the numbers we mentioned in December

were a tentative forecast only. After that time, we

decided to re-evaluate the pay situation in this

market. Before we were able to gather all the data

we needed and reach a final decision, however, the

Teamsters’ petition came in. Our understanding

of the law is that we cannot make changes in the

pay or benefits once a petition comes in, unless the

decision had been finalized beforehand. We very

much regret that the union’s poor timing has now

tied our hands, but we do not intend to violate the

law. The thing to keep in mind, though, is that |

once the union is beaten in the election—and we

feel confident that is exactly what is going to

happen here—then we will be able to move forward,

free of the restrictions that we now live under.

Pet. App. 5-6. In a question-and-answer session fol-

lowing the speech, Roberts told the Greenville em-

ployees that the average pay increases being imple-

rnented that day at the other distribution centers

ranged from twelve to fifteen percent. Jd. at 20, 104.’

ce. On February 19, 1993, approximately two weeks

before the election, petitioner’s Chairman and Chief

Executive Officer, J.R. Hyde, delivered a speech to

the Greenville employees. Hyde stated that the

Union strikes “100 percent of the time,” and then

continued:

Nobody wins a strike. At each of the cases I men-

tioned, both the company and [the Union] survived

the strike and are still around. |The distribution

center in] Nashville is still operating today full

bore. So is Sikeston and so is Memphis. The only

part of the equation not still there are the em-

ployees who allowed the Teamsters to call them

out on strike. * * * [T]he 185 strikers at our

Mae te nade

! The court of appeals initially attributes this statement to

another employee (Ferguson). Pet. App. 6. The Board found,

however, that Roberts made the statement, and this was not a

fact in dispute. /d. at 104. The court of appeals corrected its

error later in the opinion, correctly attributing the statement

to Roberts. Id. at 20.

Nashville warehouse who walked out on an illegal

wildcat strike were all fired. Those 185 employees

did not get to vote. Not one of them has ever

gotten his job back. The strikers in Memphis and

Sikeston were all replaced, and none of them have

gotten their jobs back to this day. In fact, there is

no union today in the Nashville [distribution cen-

ter], the Sikeston [distribution center], or the

Memphis [distribution center].

Pet. App. 8-9. Hyde concluded: “{The Union’s] record

with me and your management team is just about as

bad as you can get. * * * JI know, as sure as I’m

standing here, that if I let anyone—here or anywhere

else in this company—think [the Union] is in charge,

I might as well close the doors, put a lock on the gate,

and throw away the key. I will not let [the Union],

with [its] record and [its] own agenda, destroy what

you and I have built.” Jd. at 9-10.

d. The Board conducted an election among the

Greenville employees on March 5, 1993, as scheduled.

The Union lost the election by a vote of 135 to 57.

Pet. App. 2.

2. On November 9, 1993, the Board’s General Coun-

sel issued a complaint against petitioner alleging,

among other things, that petitioner’s decision to

withhold the scheduled wage increase from the

Greenville employees violated Section 8(a)(3) of the

Act, and that Roberts’ and Hyde’s speeches to the

Greenville employees violated Section 8(a)(1) of the

Act. Pet. App. 34-35, 58, 80.

a. Following a hearing, the administrative law

judge (ALJ) found that petitioner violated Section

8(a)(3) of the Act by withholding a planned and ex-

pected pay adjustment because of the Union’s petition

and the union activities of Greenville employees. Pet.

App. 158, 159. The ALJ specifically found that

Roberts was not a credible witness and rejected as

untrue Roberts’ assertion that the pay adjustment

process was frozen on the advice of counsel and arose

from a concern that implementing the increase dur-

ing an election campaign would have been illegal. Jd.

at 107. Instead, the ALJ found that “a motivating

factor int [petitioner’s] failure” to go forward with the

pay adjustment “was the fact that the employees had

assisted the Union and [petitioner] wanted to post-

pone the Greenville pay increase in order to help

defeat the Union at the election which would be held.”

Id. at 108; see also id. at 107 (“Roberts put aside his

analysis of the Greenville [distributioh center] pay

raise matter * ¥* * not because of any concern over

the legality of implementing a pay increase at

Greenville, but because of a desire to exploit the pay

raige issue in the election.”).

oT he ALJ further found that Roberts’ representa-

tion to the employees that the pay increases imple-

mented at the other distribution centers averaged

from twelve to fifteen percent was, if not “false,” then

“at best * * * misleading” (Pet. App. 104, 106), and

that this misrepresentation was “no accident, but a

deliberate attempt to deceive” the Greenville em-

ployees and to “tantalizie] his listeners at Greenville

about averages elsewhere of 12 to 15 percent, in

conjunction with * * * reciting how the pay

increase matter had to be set aside because of the

‘poor timing’ of the Union’s petition.” Jd. at 106.

“Roberts did this,” the ALJ concluded, “as part of

[petitioner’s] strategy of inciting the anger of the

Greenville employees toward the Union, and the

greater the percentage of the pay raise they were

een ener

missing out on the greater their anger and the

greater the chance they would vote NO on March 5.”

Id. at 106-107.

b. The ALJ also found that Roberts’ January 22,

1993, speech to the Greenville employees violated Sec-

tion 8(a)(1) of the Act. Pet. App. 65. Relying on “well

established” Board precedent, the ALJ held that “an

employer is required to proceed with an expected

wage or benefit adjustment as if the union were not on |

the scene.” /d. at 63 (quoting Atlantic Forest Prods.,

Inc., 282 N.L.R.B. 855, 858 (1987)). An employer is

permitted to delay a planned wage adjustment only if

“the ‘sole purpose’ of the postponement is to avoid the

appearance of influencing the election’s outcome” and

the employer “avoid[s] attributing to the union the

onus for the postponement of adjustments in wages or

benefits, or disparaging and undermining the union by

creating the impression that it stood in the way” of

the employees receiving the planned adjustment. Pet.

App. 63 (emphasis added). The ALJ found that

Roberts’ speech violated Section 8(a)(1) because “the

sole purpose of Roberts’ announcement * * * was to

encourage a vote NO” by “blam[ing] the Union’s ‘poor

timing’ for the postponement.” Pet. App. 65. “Not

only would Roberts’ words incite anger against the

Union, and remind employees how to take revenge

(beat the Union in the election),” the ALJ observed,

but they also “promise[d] the thrill of victory, after

the Union [was] beaten, in the form of [petitioner]

being able ‘to move forward, free of the restrictions

that [it] now live[d] under.’” bid.

ce. In addition, the ALJ found that Hyde’s February

speech to the Greenville employees violated Section

8(a)(1) of the Act by “unlawfully threaten[ing] loss of

jobs for strikers who participate in lawful strikes.”

+. ee

“i “

Pet. App. 84. The ALJ explained that “employers

cannot tell employees without explanation that they

would lose their jobs as a consequence of a strike

or permanent replacement.” /d. at 83 (quoting Larson

Tool & Stamping Co., 296 N.L.R.B. 895 (1989)).

Rather, employers must clarify that replaced em-

ployees may be placed on a preferential hiring list and

will be reealled when a permanent replacement leaves

the position. Pet. App. 83 n.3. Hyde’s description of

what had happened to strikers at the other distri-

bution centers, when combined with his statement

that “the Teamsters strike ‘100% of the time,” the

ALJ found, left the “clear” “overall message” that “a

successful vote for the Union means that there will

be a strike, that the strikers will be replaced, and that

the replaced strikers will lose their jobs.” Jd. at 84.

The ALJ further found that Hyde’s statement about

closing the company’s doors was unlawful because it

“threatens to retaliate for a Union victory by closing

the plant.” Jd. at 86.

d. On September 30, 1994, the Board affirmed the

ALJ’s findings and ordered petitioner to complete the

wage adjustment process for the Greenville distri-

bution center and to implement it retroactively. The

Board also set aside the results of the March election

and ordered a new election. Pet. App. 25-26, 158-159.°

3. In an unpublished decision, the court of appeals

enforced the Board’s order. Pet. App. 1-21. The court

* The Board also agreed with the ALJ that petitioner had

committed numerous other unfair labor practices during the

Union’s organizing campaign, including removing Union mate-

rials from company bulletin boards and imposing a “gag rule”

on employee conversations about the Union. Pet. App. 25, 52-

55, 69-72. The court of appeals upheld these findings, id. at 12-

15, and petitioner does not challenge them here.

held that substantial evidence supports the Board’s

factual findings and that there are no legal errors in

the decision. Jd. at 12. Specifically, the court of

appeals ruled that the “record fully supports” the

Board’s finding that anti-union animus underlay

petitioner’s decision to withhold the pay adjustment.

Id. at 18. The court further found “supported by the

record” the Board’s determination that “Roberts ex-

ploited his decision and the resulting wage adjust-

ment denial, using it as a weapon during his January

22 speech.” Jd. at 20. Petitioner’s contrary argument

that Roberts acted to avoid the appearance of unlawful

vote buying was rejected by the ALJ and, the court

noted, “[petitioner] has failed to show any basis for

disturbing th{at] credibility determination[].” Jbid.:

see also id. at 21 (“the record supports the Board’s

finding that [petitioner] suspended its anticipated

wage adjustment procedure because the employees

had assisted the Union and because [petitioner]

wanted to postpone the pay increases in order to help

defeat the Union at the election”). Finally, the court

of appeals concluded that “the record substantially

supports [the Board’s finding] that Chairman Hyde’s

speech contained both a threat of plant closure and

permanent loss of employment.” Jd. at 16-17.

ARGUMENT

Petitioner’s argument is premised on factual asser-

tions that are contrary to the facts found by the ALJ,

adopted by the Board, and affirmed by the court of

appeals. Because petitioner does not challenge the

legal standards employed or the application of the law

to the facts actually found by the Board, and because

the court of appeals’ decision is correct and not in

conflict with the ruling of any other circuit, further

review is not warranted.

1. Petitioner’s principal contention (Pet. 15-25) is

that the court of appeals erred in finding that peti-

tioner’s decision to withhold the wage increase from

the Greenville employees was unlawful under Section

8(a)(3) of the Act. Petitioner claims that it had no

established practice of granting wage adjustments

and that it acted out of a fear that the wage increase

would be perceived as illegal vote buying.

These factual contentions were specifically re-

jected by the ALJ, the Board, and the court of appeals.

The court of appeals, like the Board, rejected peti-

tioner’s claim that its wage adjustment history was

“erratic in both timing and amount.” Pet. App. 20.

The court found instead that “there had been an

annual average adjustment at Greenville in 1989, 1990,

and 1991,” that “there was a company wide practice of

granting adjustments at all of its distribution centers

in January,” and that “[petitioner] led its employees

to believe that some kind of wage increase would be

forthcoming in 1993.” Jbid. The court further found

that Roberts’ testimony that the wage adjustment

was withheld out of concerns about its legality was

“discredited,” that the company had demonstrated no

basis for disturbing that credibility determination,

and that “the record supports the Board’s finding that

petitioner suspended its anticipated wage adjustment

procedure,” not because of concerns about its illegal-

ily, but “because the employees had assisted the

Union and because [petitioner] wanted to postpone the

pay increases in order to help defeat the Union at the

election.” Jd. at 19-21.

This Court “dofes] not grant a certiorari to review

evidence and discuss specific facts.” United States v.

Johnston, 268 U.S. 220, 227 (1925); ef. Graver Tank &

Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275

(1949) (“{a] court of law, such as this Court is, * * *

cannot undertake to review concurrent findings of

fact by two courts below in the absence of a very

obvious and exceptional showing of error”), aff’d on

reh’g, 339 U.S. 605 (1950). The task of evaluating

whether an agency’s decision is supported by sub-

stantial evidence, moreover, belongs “primarily” to

the court of appeals: “This Court will intervene only

in what ought to be the rare instance when the

standard appears to have been misapprehended. or

grossly misapplied.” Mobil Oil Corp. v. Federal

Power Comm’n, 417 U.S. 283, 310 (1974).

It is clearly settled law that scheduled wage adjust-

ments cannot be withheld because of anti-union an-

imus. See, e.g., NLRB v. Otis Hosp., 545 F.2d 252,

254-256 (1st Cir.), enforcing 222 N.L.R.B. 402 (1976);

Atlantic Forest Prods., Inc., 282 N.L.R.B. 855, 858-859

(1987); Emory Nursing Home, Inc., 260 N.L.R.B. 540,

555 (1982). Accordingly, this Court’s review is not

warranted.’

% The cases cited and discussed by petitioner (Pet. 17-20, 21-

25) in an effort to demonstrate confusion in the legal standard

are inapposite because they did not involve an employer whose

conduct was found to have been motivated by anti-union

animus. See Bowling Green-Warren County Community Hosp.

v. NLRB, 756 F.2d 41, 44 (6th Cir. 1985) (“there is no sub-

stantial evidence in the present record to support a finding of

intentional discrimination”; parties had stipulated that the

“withholding of an increase * * * was based solely on the

advice of counsel”); NLRB vy. Service Garage, Inc., 668 F.2d

247, 248-249 (6th Cir. 1982) (employer had no past practice of

granting wage increase; employer did not attribute delay in

any possible increase to union or discuss basis for postponement

with employees); J.J. Newberry Co. v. NLRB, 645 F.2d 148,

2. Petitioner also contends (Pet. 11-14) that the

court of appeals erred in finding that Roberts’ Janu-

ary speech violated Section 8(a)(1) of the Act, because

Roberts allegedly “was merely informing employees

of [pjetitioner’s obligation under the Act, which is

lawful.” Pet. 12.

Like petitioner’s previous contention, this argu-

ment invites this Court to sit in review of factual

findings made by an agency and affirmed by the court

of appeals. The Board found, and the court of appeals

agreed, that Roberts’ speech was “part of [petition-

er’s| strategy of inciting the anger of the Greenville

employees toward the Union.” Pet. App. 106. Roberts

did not merely inform employees of the legal status of

their wage adjustment. He specifically blamed the

Union for the withholding and “strongly implied that

a vote against the Union would restore [petitioner’s]

freedom to grant the pay increase.” Jd. at 20.

Roberts’ purported explanation of the law, more-

over, was incorrect. In deciding whether to withhold

a planned increase in wages, “[a] company is supposed

to act as though the union were not present,” NLRB

v. Industrial Erectors, Inc., 712 F.2d 1131, 1135 (7th

Cir. 1983). Otherwise, “[e]mployees will predictably

consider that the union is somehow responsible for

their failure to receive expected raises.” Plasticrafts,

152-153 (2d Cir. 1981) (employer took “pains to refrain from

capitalizing on the withholding” of a wage increase; “the with-

holding did not have an anti-union purpose or effect”); NLRB

v. Planters Peanuts, 574 F.2d 400, 401, 405 (8th Cir. 1978) (per

curiam) (employer acted “in good faith” and was not “trying to

undermine the Union, or attempting to influence the votes of

the employees”); Free-Flow Packaging Corp. v. NLRB, 566

F.2d 1124, 1130 (9th Cir. 1978) (“the circumstances were not

such as to give rise to an inference of antiunion motive”).

Inc. v. NLRB, 586 F.2d 185, 188 (10th Cir. 1978). See

also Pet. App. 63 (discussing Atlantic Forest Prods.,

Inc., supra). Because the Greenville wage increase

was “planned and expected” (Pet. App. 20), Roberts

lawfully could have advised the employees that peti-

tioner would move forward with the wage adjustment

process without regard to the fact that a repre-

sentation petition had been filed. Alternatively, peti-

tioner could have advised the employees that it would

postpone the increase until after the election, pro-

vided that the company also made clear that the

postponement was solely to avoid any appearance of an

attempt to influence the election and refrained from

making statements designed to undermine employee

support for the Union. See id. at 64 (discussing

Atlantic Forest Prods., Inc., supra).'

4 Petitioner errs in asserting (Pet. 11) that Atlantic Forest

Prods., Inc. is “contrary to previous Board law.” That

decision simply restated and applied principles previously

established by the Board in Uarco, Inc., 169 N.L.R.B. 1153

(1968). See Atlantic Forest Prods., Inc., 282 N.L.R.B. at 857-

859. Also without merit is petitioner’s suggestion (Pet. 11 n.5,

12-13) that the finding that Roberts’ speech was unlawful is

inconsistent with prior Board decisions. None of the cases

relied upon by petitioner involved an employer who used its

decision to withhold a benefit as a means of undermining

employee support for the union. See Hovey Elec., Inc., 302

N.L.R.B. 482 (1991) (employer “did not attribute the decision

{not to disclose a promised wage plan] to the union or the union

campaign”), enforcement granted in part and denied in part

on other grounds, 964 F.2d 543 (6th Cir. 1992); Cutter Labs.,

Inc., 221 N.L.R.B. 161, 169 (1975) (evidence “does not establish

that the [employer] sought to capitalize on the absence of the

wage increase as an issue with which to undermine the

Union”); Great Atlantic & Pacific Tea Co., 192 N.L.R.B. 645,

646 (1971) (no evidence that “[the employer] in any way sought

to capitalize on the absence of a wage increase by connecting

3. Finally, petitioner’s contention (Pet. 27) that

Hyde’s February speech is protected by Section 8(c)

of the Act is without merit. Section 8(c) provides, in

pertinent part, that “(t]he expressing of any views,

argument, or opinion * * * shall not constitute or be

evidence of an unfair labor practice * * * if such

expression contains no threat of reprisal or force or

promise of benefit.” 29 U.S.C. 158(c). Because his

comments contained threats of reprisal through clos-

ing the plant (Pet. App. 16-17), Hyde’s speech falls be-

yond Section 8&(c)’s aegis. Given “the Board’s com-

petence in the first instance to judge the impact of

utterances made in the context of the employer-

employee relationship” (NLRB v. Gissel Packing Co.,

395 U.S. 575, 620 (1969)), the Board’s finding of im-

proper coercion, which was upheld by the court of

appeals, raises no issue meriting this Court’s review.

In any event, the court of appeals’ decision fully

comports with this Court’s precedent. See id. at 619

(speech improper where petitioner characterized

union as “strike-happy,” threatened that strike would

lead to a plant shutdown, and indicated that the strike

would likely leave the employees out of work).°

the absence with the Union or the employees’ support of the

Union”).

5 Petitioner’s contention (Pet. 25-26; see also Pet. 14) that, in

determining whether speech was coercive, the Board and the

court may examine only the written text of the speech and

must ignore its implications is meritless. Gissel, 395 U.S. at 617

(“[aJny assessment of the precise scope of employer expression,

of course, must be made in the context of its labor relations

setting * * * takling] into account the economic dependence

of the employees on their employers, and the necessary tend-

ency of the former, because of that relationship, to pick up

eee a ae

Lastly, petitioner’s contention (Pet. 28-29) that

Hyde’s speech was not unlawful because, nearly

a month earlier, unspecified “members of manage-

ment” had informed the Greenville employees of their

striker reinstatement rights® is without merit and

undeserving of this Court’s review. Neither the

Board nor the court made a finding that management

actually made these statements. In any event, given

the substantial time lag between these alleged dis-

cussions and Hyde’s speech, whatever information

may have been conveyed at those meetings would have

been nullified by Hyde’s subsequent coercive state-

ments, equating a Union victory with the inevitabil-

ity of strikes and with permanent loss of employment

with petitioner. See Pet. App. 17.

intended implications of the latter that might be more readily

dismissed by a more disinterested ear”).

® See Laidlaw Corp., 171 N.L.R.B. 1366 (1968) (permanently

replaced economic strikers, who have made an unconditional

offer to return to work, are entitled to full reinstatement when

positions become available, and to placement on a preferential

hiring list if positions are not available), enforced, 414 F.2d 99

(7th Cir. 1969), cert. denied, 397 U.S. 920 (1970).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted. ;