Opposition Brief — C & D Charter Power Systems, Inc. v. National Labor Relations Board

Supreme Court, U.S.

.tnhes

(3) QCT 23 1996

No. 96-296

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1996

C & D CHARTER POWER SYSTEMS, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA 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

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether substantial evidence supports the Na-

tional Labor Relations Board’s finding that petitioner

violated Section 8(a)(1) and (3) of the National Labor

Relations Act, 29 U.S.C. 158(a)(1) and (3), by suspend-

ing and then discharging employee Robert William-

son because he engaged in protected activity.

(I)

TABLE OF CONTENTS

Page

I NE ith iina sk ical hcdachnlittacddaencchimenmiciiniarceiccoens ches 1

RAR ORM ori aadr ecteive cost PANO aa mR RAS l

RIES EER CIMA TOMAS 2 See 2a Ga 2

SMITTEE Si. Lali dicensins dacctdbubiatheteinthtiabadiascaumubsstmibensncaesies: 6

SR ii cai a 11

TABLE OF AUTHORITIES

Cases:

Caterpillar Tractor Co., 276 N.L.R.B. 1323 (19835) .... 4

NLRB v. Transportation Management Corp.,

Oe Reb UE LATED cekcidiasahansntectbintisniciaasesscsens 7, 8,9, 11

Reef Industries, Inc., 300 N.L.R.B. 956 (1990),

enforcement granted, 952 F.2d 830 (5th Cir. 1991) . 4

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) .... 11

Universal Camera Corp. v. NLRB, 340 U.S. 474

CHINE wilh eababelendiistnesticsieavchidbubdssiedenkuvésebeciacesecacsese 7,8

Woelke & Romero Framing, Inc. v. NLRB,

Sy BP TA RIED AicabcbvdieaterbibccsbidaecénkteconicXcincusevese 10

Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced

on other grounds, 662 F.2d 899 (1st Cir. 1981), cert.

denied, 455 U.S. 989 (1982) ...........ccccccccccssscscsccssceses 5. 8

Statutes:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

Sr Sy Whalsticbheiidakea Vekcdeensednsaxesoecddeneenbeceshbnesousnnpuciina tees 10

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071:

§ 107, 105 Stat. 1075 (42 U.S.C. 2000e-2(m),

ea nee eR RAS he 9, 10, 11

§ 107(a), 105 Stat. 1075 (42 U.S.C. 2000e-2(m))..... 10

$ 107(b), 105 Stat. 1075 (42 U.S.C.

WII nn ee 10

(IID

IV

Statutes—Continued: Page

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

6, BD UB. 260 ncciccrceascicscsrentocntenesscssnceseannseies 2, 4, 6

§ HaNXD, BO UBC. TGA) 2.0... cccrerccccccsesceccecnesesees 2,4

$ S(aNS), SO U.S.C. UGBANS) 2... ccccccesccccccccccscesesenseess 2,4

§ 10(e), 29 U.S.C. 1GO(]) ......ccecscccrccrcscoscccsscerecneseeeess 10

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

No. 96-296

C & D CHARTER POWER SYSTEMS, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The judgment of the court of appeals (Pet. App. C1-

C2) is unpublished, but the decision is noted at 88 F.3d

1278 (Table). The decision and order of the National

Labor Relations Board (Pet. App. A1l-A5), and the de-

cision of the administrative law judge (Pet. App. B1-

B24), are reported at 318 N.L.R.B. 798.

JURISDICTION

The judgment of the court of appeals was entered on

May 20, 1996. The petition for a writ of certiorari was

filed on August 16, 1996. The jurisdiction of this

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

(1)

2

STATEMENT

1. Section 8(a)(1) of the National Labor Relations

Act (Act), 29 U.S.C. 158(a)(1), makes it an unfair

labor practice for an employer “io interfere with, re-

strain, or coerce employees in the exercise of the

rights guaranteed in section [7]” of the Act. Section 7

of the Act, 29 U.S.C. 157, provides that “[e]mployees

shall have the right to self-organization, to form, join,

or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to

engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protec-

tion.” Section 8(a)(3) of the Act, 29 U.S.C. 158(a)(3),

makes it an unfair labor practice for an employer “by

discrimination in regard to hire or tenure of employ-

ment or any term or condition of employment to en-

courage or discourage membership in any labor or-

ganization.”

2. Petitioner manufactures batteries at a plant in

Huguenot, New York. In the fall of 1990, the Inter-

national Union, United Automobile, Aerospace & Ag-

ricultural Implement Workers of America, UAW (Un-

ion) launched an organizing campaign at the plant.

Pet. App. B2-B3. During the Union’s campaign

(which culminated in an election on January 31, 1991),

petitioner held a series of 50 or 60 anti-union meet-

ings with employees in the plant during working

time. Employees resented the meetings, because at-

tendance was mandatory, thereby causing employees

to lose the opportunity to earn extra income on the

production line under petitioner’s piece-incentive pro-

gram. Id. at A2.

One such mandatory meeting was held on January

25, 1991. At that meeting, Arthur Imdorf, the plant

3

manager, made a presentation to the employees.

After Imdorf’s presentation, Robert Williamson, an

active Union supporter, raised his hand, stated that

he had a two-part question, and asked Imdorf, “How

many more of these meetings are we going to have?”

Imdorf heatedly replied: “I’ve heard this question

over a hundred times in every meeting. I’m getting

tired of this question. These meetings are going to

continue until I say that we don’t have these meetings

anymore.” Imdorf then told Williamson to proceed

with his question. In response, Williamson initially

remarked, “you’re worthless,” but then immediately

retracted his comment and clarified that “I don’t

mean you personally, but the question was worth-

less.” Pet. App. A2-A3, B6, B17.

At the conclusion of the January 25 meeting, Harry

Fronjian, petitioner’s human relations manager, con-

fronted Williamson about his remark to Imdorf and

informed him that “because of what you’ve done, we’re

going to have to suspend you pending further evalua-

tion.” Pet. App. B6, B17. Williamson asked Fronjian,

“why don’t you do what you really want to do and fire

me[?]” Jd. at B7. Williamson then left Fronjian’s

office and, shouting expletives, proceeded to the lock-

er room, where he encountered John Tice, a supervi-

sor. There, Tice told Williamson, “I understand that

you’ve quit, and you know that’s the way we’re going

to record it and we'll let the unemployment know.”

Ibid. Angered by Tice’s assertion that he had “quit,”

Williamson slammed his locker shut and pounded on

it. Id. at B19.

On January 29, 1991, four days after Fronjian sus-

pended him, Williamson wrote to Imdorf, inquiring

when he could return to work. On January 31, Imdorf

informed Williamson that “you no longer are con-

sidered to be an employee of [petitioner).” Pet. App.

B18 n.4.

3. Upon charges filed by the Union, the Gen-

eral Counsel of the National Labor Relations Board

(Board) issued a complaint against petitioner alleg-

ing, among other things, that its discharge of Wil-

liamson viclated Section 8(a)(1) and (3) of the Act.

Pet. App. B1-B2. Following a hearing, the adminis-

trative law judge (ALJ) sustained the allegation. /d.

at B21, B24.

First, the ALJ found that Williamson’s “you’re

worthless” remark during the January 25 meeting

was protected by Section 7. Pet. App. B17. The ALJ

explained that the remark “came in the context of

protected activity,” and it constituted a permissible

“spontaneous outburst’ during the question and

answer period,” ibid. (quoting Caterpillar Tractor

Co., 276 N.L.R.B. 1323, 1326 (1985)), rather than an

“offensive, vulgar, defamatory, or opprobrious” re-

mark of the kind falling outside of the Act’s protec-

tion. Pet. App. B17 (quoting Reef Industries, Inc., 300

N.L.R.B. 956, 961 (1990), enforcement granted, 952

F.2d 830 (5th Cir. 1991)).

Second, the ALJ found that Williamson’s protected

activity at the January 25 meeting was “the very

reason why” petitioner discharged him. Pet. App.

B20.' In so finding, the ALJ considered and rejected

several explanations that petitioner proffered as the

actual reasons motivating the discharge. Jd. at B18-

B19. Petitioner contended that it discharged William-

1 The ALJ found that Williamson’s January 25 suspension

effectively became a discharge as of January 31, the date on

which Imdorf informed Williamson that petitioner no longer

considered him to be an employee. Pet. App. B18 n.4.

5

son, not because of his protected activity during the

January 25 meeting, but because he subsequently had

used profanity as he exited Fronjian’s office and

damaged company property (his locker) in reaction to

i supervisor Tice’s assertion that he had “quit.” Jd. at

B19. The ALJ held, however, that petitioner’s expla-

| nations were pretextual, because the use of profanity

was commonplace in the plant, the lockers were

generally in poor condition, and “[tJhe record does not

show the extent of the damage, if any, Williamson

caused to the locker.” Jbid. The ALJ also rejected

petitioner’s contention that it discharged Williamson,

not because of his protected activity, but because he

subsequently had allegedly threatened to kill supervi-

sor Tice. The ALJ found instead that “[petitioner]

has not shown by a preponderance of the evidence that

the threat was made.” Ibid.

Lastly, the ALJ concluded that, even if William-

son’s use of profanity and damage to the locker were

not pretexts, but, rather, a dual motive for the

discharge (along with the unlawful motive), petitioner

had failed to “sustain[ ] its burden of showing that the

‘same action would have taken place even in the

absence of the protected conduct,’” because “[nJo

showing has been made that employees were * * *

discharged * * * for similar activities.” Pet. App.

B20-B21 (citing Wright Line, Inc., 251 N.L.R.B. 1083,

1089 (1980), enforced on other grounds, 662 F.2d 899

(1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)).

The Board adopted the ALJ’s findings and conclu-

sions, and ordered petitioner to reinstate Williamson

with backpay. Pet. App. Al, A4-A5, B23.

4. The court of appeals enforced the Board’s order

in an unpublished summary decision. Pet. App. C1-

C2. The court held that substantial evidence sup-

=

4

6

ported the Board’s finding that petitioner’s discharge

of Williamson violated the Act. Jd. at C2.

ARGUMENT

1. Petitioner’s principal contention is that this

case presents “the issue as to the proper analysis to

be used when confronted with a mixed motive employ-

ment decision” (Pet. 21), that is, an employment

decision that “was motivated by both lawful and dis-

criminatory reasons” (Pet. 11). Petitioner contends

(Pet. 11-18) that a conflict among the courts of appeals

exists on that issue. Petitioner further asserts (Pet.

19) that the Board “failed to consider or resolve the

2 In this Court, petitioner does not challenge the Board’s

ruling (Pet. App. A3-A4) that Williamson’s conduct during the

January 25 meeting constituted “concerted” activity within

the meaning of Section 7 of the Act. Before the Board, peti-

tioner contended that Williamson’s conduct during the January

25 meeting was not protected by the Act because it was not

“concerted” under Section 7. Pet. App. A2. The Board reject-

ed that contention, cuncluding that Williamson’s comments

constituted concerted activity “because they were the logical

outgrowth of the prior concerted complaints the employees

voiced about being required to attend [petitioner’s] numerous

meetings and to lose the incentive pay they could otherwise be

earning.” Jd. at A3-A4. Petitioner did not challenge the

Board’s ruling in the court of appeals, and it is not at issue

here. The Board also found, in agreement with the ALJ, that

Al Weber, petitioner’s president, delivered a speech on Decem-

ber 21, 1990, in which he unlawfully threatened employees with

plant closure if they voted for the Union. /d. at Al, B10-B11,

B21. The court of appeals sustained the Board’s finding, con-

cluding that petitioner had advanced “no intelligible argu-

ments” to the contrary. /d. at C2. In this Court, while peti-

ioner continues to characterize Weber’s speech as “lawful”

(Pet. 5), it does not actually challenge the Board’s ruling to the

contrary.

7

issue of a dual motive or the requisite analysis”

respecting Williamson’s discharge.

This case, however, does not actually present the

issues raised by petitioner. The ALJ, whose finding

was adopted by the Board and upheld by the court of

appeals, concluded that petitioner’s decision to dis-

charge Williamson was not attributable to mixed

motives. Rather, Williamson’s protected activity was

“the very reason why” petitioner discharged him, and

its allegedly lawful justifications for the discharge—

his using profanity, damaging the locker, and threat-

ening supervisor Tice after the January 25 meeting

—were mere pretexts. Pet. App. B19, B20.

Accordingly, the question presented by this case is

whether substantial evidence supports the Board’s

finding that petitioner’s allegedly lawful justifica-

tions for Williamson’s discharge were in fact pre-

textual.* The court of appeals answered that question

in the affirmative. Pet. App. C2. Although petitioner

apparently disagrees with the court’s holding (see

Pet. 24-26), the court’s assessment of the evidentiary

record raises no issue warranting further review by

this Court, particularly where, as here (see Pet. 19-

21; Pet. App. Al n.1), petitioner’s main disagreement

with the decision below is with the ALJ’s credibility

determinations, which the Board in turn upheld. See

Universal Camera Corp. v. NLRB, 340 U.S. 474, 491

(1951).*

* It is well settled that “if the employer fires an employee

for having engaged in union activities and * * * the reasons

that he proffers are pretextual, the employer commits an

unfair labor practice.” NLRB v. Transportation Management

Corp., 462 U.S. 393, 398 (1983).

* As the Court explained in Universal Camera Corp.:

“Whether on the record as a whole there is substantial evidence

8

2. In any event, the contentions advanced by peti-

tioner are without merit.

a. In NLRB vy. Transportation Management

Corp., 462 U.S. 393 (1983), this Court upheld the rules

governing “dual motive” or “mixed motive” cases es-

tablished by the Board in Wright Line, Inc., supra.

462 U.S. at 400-408. As the Court explained:

[T]he General Counsel * * * ha[s] the burden of

proving that the employee’s conduct protected by

§ 7 was a substantial or a motivating factor in the

discharge. Even if this was the case, and the

employer failed to rebut it, the employer could

avoid being held in violation of §§ 8(a)(1) and 8(a)(3)

by proving by a preponderance of the evidence that

the discharge rested on the employee’s unpro-

tected conduct as well and that the employee would

have lost his job in any event.

Id. at 400 (footnote omitted); see also id. at 399 & n.4.

The Board and the court of appeals properly affirmed

the ALJ’s finding that the General Counsel had met

his burden, and that petitioner had failed to sustain

its affirmative defense. Pet. App. A1l-A4; id. at C2.

b. Petitioner mischaracterizes the record in con-

tending (Pet. 19) that the ALJ and the Board “failed to

consider or resolve the issue of a dual motive or the

to support agency findings is a question which Congress has

placed in the keeping of the Courts 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.” 340 U.S. at 491. Petitioner has not demonstrated

that the decision below is one of those “rare instances” in which

the substantial evidence test has been so “misapprehended or

grossly misapplied” by the court of appeals as to warrant this

Court’s intervention.

9

requisite analysis” in connection with Williamson’s

discharge. As noted, the ALJ found that petitioner’s

proffered lawful justifications for discharging Wil-

liamson were pretextual. Pet. App. B19. The ALJ

went on to conclude that, even if petitioner’s proffered

lawful explanations for the discharge were not merely

pretextual, but, rather, constituted a dual motive

(along with its unlawful, retaliatory motive), the dis-

charge of Williamson nonetheless violated the Act,

because petitioner made “[njo showing” that other

employees had been discharged for similar acts of

alleged misconduct. Jd. at B20-B21 (applying Wright

Line, Inc.). And, far from “fail{ing] to consider” the

issue (Pet. 19), the Board in fact adopted the ALJ’s

conclusions. Pet. App. Al.

Petitioner’s related contention (Pet. 11, 16-18) that

there is a conflict among the courts of appeals as to

the proper legal framework for analyzing mixed-

motive discharge cases under the Act also lacks

merit. The decisions upon which petitioner relies

(Pet. 16-18) for the alleged circuit conflict all pre-date

this Court’s decision in Transportation Management

Corp., supra. By upholding the Board’s Wright Line,

Inc. decision as a reasonable construction of the Act,

the Court in Transportation Management Corp.

fully resolved the circuit conflict to which petitioner

refers. See 462 U.S. at 397 & n.3, 400-403.

3. Petitioner invites this Court to hold that Sec-

tion 107 of the Civil Rights Act of 1991 (CRA), Pub. L.

No. 102-166, 105 Stat. 1075 (42 U.S.C. 2000e-2(m),

2000e-5(g)(2)(B)), applies to mixed-motive cases aris-

ing under the National Labor Relations Act and

limits the Board’s remedial authority in such cases.

10

Pet. 21-24, 27.° The Court should decline petitioner’s

invitation, for its claim is not properly presented and,

in any event, is unpersuasive.

a. Petitioner did not raise its Section 107 claim

before the Board or the court of appeals. Petitioner's

failure to advance that claim before the Board creates

a jurisdictional bar to its consideratior in judicial

proceedings reviewing the Board’s order. See Section

10(e) of the Act, 29 U.S.C. 160(e);5 Woelke & Romero

Framing, Inc. v. NLRB, 456 U.S. 645, 665-666 (1982).

Moreover, because petitioner did not raise its claim in

the court below, petitioner has failed to preserve it for

5 Section 107 amended the Civil Rights Act of 1964 in two

respects. First, Section 107(a) (105 Stat. 1075) added a new

subsection to the statute, 42 U.S.C. 2000e-2(m), which provides:

“Except as otherwise provided in this title, an unlawful em-

ployment practice is established when the complaining party

demonstrates that race, color, religion, sex, or national origin

was a motivating factor for any employment practice, even

though other factors also motivated the practice.” Second,

Section 107(b) (105 Stat. 1075) added a new subparagraph to the

statute, 42 U.S.C. 2000e-5(g)(2)(B), which provides: “On a

claim in which an individual proves a violation under section

[2000e-2(m)}] and a respondent demonstrates that the respon-

dent would have taken the same action in the absence of the

impermissible motivating factor, the court * * * may grant

declaratory relief, injunctive relief * * * and attorney’s fees

* * * and * * * shall not award damages or issue an order

requiring any admission, reinstatement, hiring, promotion, or

payment.”

6 Section 10(e) provides, in relevant part: “No objection

that has not been urged before the Board * * * shall be con-

sidered by the [reviewing] court, unless the failure or neglect

to urge such objection shall be excused because of extraordi-

nary circumstances.” Petitioner has alleged no such “extra-

ordinary circumstances” here.

11

review here. See, e.g., Taylor v. Freeland & Kronz,

503 U.S. 638, 646 (1992).

b. In any event, petitioner’s Section 107 claim

lacks merit. Petitioner cites no authority applying

Section 107 of the CRA in analogous circumstances,

nor any provision of the CRA or its legislative his-

tory to demonstrate that Congress intended the CRA

to supplant the NLRA as it had been construed by

this Court in Transportation Management Corp.,

supra.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

OCTOBER 1996