Petition for Writ of Certiorari — Contech Division, SPX Corp. v. National Labor Relations Board

Supreme Court, U.S.

FILED

(1) 981981 JUN 9 - 1999

No.

Re

TUL ANAK

IN THE

Supreme Court of the United States

CONTECH DIVISION, SPX CORPORATION,

Petitioner,

NATIONAL LABOR RELATIONS BOARD, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PETER J. KOK Craic H. LUBBEN

MILLER, JOHNSON, SNELL Counsel of Record

& CUMMISKEY, P.L.C. Davip M. BuDay

800 Calder Plaza Bldg. MILLER, JOHNSON, SNELL

Grand Rapids, MI 49503 & CumMISKEY, P.L.C.

(616) 831-1700 425 West Michigan Ave.

Kalamazoo, MI 49007

(616) 226-2950

Attorneys for Petitioner

153380 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

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QUESTION PRESENTED

Does it violate an employer’s First Amendment rights

for the NLRB to overturn the results of a union election

based upon the employer’s statements to its employees

during the campaign where those statements are permitted

under 29 U.S.C. § 258(c)?

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PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

In addition to the parties listed in the caption, the

respondents include International Union, United

Automobile, Aerospace and Agricultural Implement

Workers of America, UAW.

Petitioner, Contech Division, SPX Corporation is a

division of SPX Corporation which is a publicly traded

corporation.

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TABLE OF CONTENTS

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Parties to the Proceeding and Rule 29.6 Statement

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Citations of Reports of Opinions and Order Below

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Constitutional and Statutory Provisions Involved .

Concise Statement of the Case .................

Reasons for Granting the Writ .................

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TABLE OF CITED AUTHORITIES

Page

Cases:

Associated Roofing & Sheet Metal Co., Inc., 255

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Diner's Drive-In, Inc., 280 NLRB 971 (1986) .... 8

Honeywell, Inc., 225 NLRB 617 (1976) ......... 8

Mohawk Bedding Company, 204 NLRB 277 (1973)

PET ETE ETT ETE TET Ee ee OT TEE ee oP eee 8

NLRB vy. Gissel Packing Co., Inc., et al., 395 U.S.

ed ee eer ee ree 5, 6, 8

NLRB vy. Tennessee Packers, Inc., 379 F.2d 172 (6th

Gale SE dv nda ean oe Ceendseeseeseiaeuceens 8

The McLaughlin Company, 187 NLRB 897 (1971)

peeatad seed oe eedee anes een 8

Turner Shoe Company, Inc., 249 NLRB 144 (1980)

Pe TET TT ETT Se TE TCT TT Re Re 8

US Airways, Inc. v. National Mediation Board and

Communications Workers of America, AFL-CIO,

1999 WL 335366 at 4 (DC Cir. 5/28/99) ...... 9,10

Warren W. Parke, 219 NLRB 546 (1975) ........ 8

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Cited Authorities

Page

Statutes:

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United States Constitution

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Rules:

United States Supreme Court Rule 10(a) ........ 7

United States Supreme Court Rule 10(c) ........ 7

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TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Sixth Circuit Dated Decided

And Filed December 30, 1998 ...............

Appendix B — Decision And Direction Of Second

Election Of The National Labor Relations Board

Dated December 19, 1995 ..................

Appendix C — Regional Director’s Report And

Recommendation Of The National Labor

Relations Board For The Seventh Region On

Objections To Conduct Affecting The Results Of

The Election Dated April 2, 1996 ............

Appendix D — Order Of The United States Court

Of Appeals For The Sixth Circuit Denying

Petition For Rehearing Dated And Filed March

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Appendix E — Hearing Officer’s Report And

Recommendations Of The National Labor

Relations Board For The Seventh Region On

Objections Dated April 17, 1995 .............

Appendix F — Excerpts From Trial Transcript Of

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Appendix G — Excerpts From Trial Transcript Of

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Appendices

Appendix H — Excerpts From Trial Transcript Of

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Appendix I — Excerpts From Trial Transcript Of

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Appendix J — Excerpts From Trial Transcript Of

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Appendix K — Excerpts From Trial Transcript Of

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Appendix L — Excerpts From Trial Transcript Of

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Appendix M — Excerpts From Trial Transcript Of

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Appendix N — Excerpts From Trial Transcript Of

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Appendix O — Excerpts From Trial Transcript Of

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Appendix P — Excerpts From Trial Transcript Of

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Appendix Q — Memo Dated November 21, 1994,

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Appendix R — Excerpts From Supply Agreement

Dated July 15, 1991, Exhibit J4ZZ ...........

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CITATIONS OF REPORTS OF OPINIONS

AND ORDER BELOW

1. The Hearing Officer’s Report and

Recommendations on Objections of the National

Labor Relations Board, Seventh Region, was filed

on April 17, 1995 (Pet. App. 70a).

2. The Decision and Direction of Second Election of

the National Labor Relations Board was filed on

December 19, 1995, and is reported at 320 N.L.R.B.

No. 52 (Pet. App. 22a).

3. The Regional Director’s Report and

Recommendation on Objections to Conduct

Affecting the Results of the Election, of the

National Labor Relations Board, Seventh Region,

was filed on April 2, 1996 (Pet. App. 60a).

4. The Decision and Certification of Representation

of the National Labor Relations Board was filed

on August 5, 1996 (Pet. App. 40a).

5. The published decision of the panel of the Court of

Appeals for the Sixth Circuit was filed on

December 30, 1998, and is reported at 164 F.3d

297 (Pet. App. 1a).

6. The Order of the Court of Appeals for the Sixth

Circuit denying rehearing with suggestion

for rehearing en banc was filed on March 11, 1999

(Pet. App. 68a).

2

STATEMENT OF JURISDICTION

Petitioner seeks review of a published Opinion of the

United States Court of Appeals for the Sixth Circuit in a

case involving the interpretation and application of the

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

panel decision was filed on December 30, 1998, and is

reported at 164 F.3d 297 (6" Cir. 1998) (Pet. App. la). The

Order denying rehearing with suggestion for rehearing en

banc was filed on March 11, 1999. This Petition for

Certiorari is filed within the 90 days of that March 11, 1999

Order. This Court has jurisdiction under 28 U.S.C. § 1254(1)

to review the final judgment or decree of the Court of

Appeals for the Sixth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case concerns the interpretation and application

of the following constitutional and statutory provisions:

1. The First Amendment of the United States

Constitution, U.S. Const. amend. I:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

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3

2. Sections 8(a)(1) and (5) of the National Labor

Relations Act, 29 U.S.C. §§ 158(a)(1), (5):

It shall be an unfair labor practice for an

employer —

(1) to interfere with, restrain, or coerce

employees in the exerc’se of the rights

guaranteed in section 157 of this title;

+ *«* & *

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 159(a) of this title.

3. Section 8(c)(5) of the National Labor Relations Act,

29 U.S.C. § 158(c)(5):

The expressing of any views, argument, or

opinion, or the dissemination thereof, whether

in written, printed, graphic, or visual form, shall

not constitute or be evidence of an unfair labor

practice under any of the provisions of this

subchapter, if such expression contains no threat

of reprisal or force or promise of benefit.

CONCISE STATEMENT OF THE CASE

This case involves employer free speech during a union

organizing campaign. In a Board sponsored election,

employees of the Petitioner, Contech Division, SPX

Corporation (“Contech”), voted against union representation

by a vote of 196 to 154. The union objected to certain of

4

Contech’s campaign statements. The Board overturned that

election because of what Contech’s representatives said

during the election campaign even though employer’s

speech was lawful under Section 8(c) of the National Labor

Relations Act (“NLRA”) (29 U.S.C. § 158 (c)) and protected

by the First Amendment of the United States Constitution.

After a second election where the employees voted in

favor of union representation by a vote of 184 to 150,

Contech refused to bargain with the UAW because it

believed that the first election was improperly overturned

in violation of its right to free speech. Contech was charged

with unfair labor practices for refusing to bargain. The Board

upheld those charges and ordered Contech to bargain.

Contech timely filed a petition for review by the United

States Court of Appeals for the Sixth Circuit. That Court

had jurisdiction over the petition pursuant to Section 10(f)

of the NLRA, 29 U.S.C. § 160(f). The Board filed a cross-

application for enforcement of its final order. The Sixth

Circuit had jurisdiction over that cross-application under

10(e) of the NLRA, 29 U.S.C. § 160(e). The Sixth Circuit

enforced the Board order. Contech timely filed this Petition

for Writ of Certiorari.

The cornerstone of the National Labor Relations Act

(“NLRA or the “Act”) is the protection of the employees’

right to join or not to join a labor organization. Practically,

employees make that choice in the context of union

organizing campaigns that occur in workplaces throughout

the United States on a daily basis. There were over 217,000

elections in 1997 alone. An election is initiated generally

through the filing of a petition for an election by a union,

after which an election date is set by the National Labor

5

Relations Board (“NLRB”) — generally no further than 42

days from the filing of that petition for election. During

this short time period, employees have been bombarded by

the union and by the employer with facts, propaganda,

opinions, stories, videos and meetings that tell them why

they should or should not join a particular union. Unlike

general elections, in union elections typically 95% or more

of the employees vote.

In making this critical decision, employees need the

facts from both sides. If employees are allowed to hear only

one side of the story, only that side of the story will prevail.

Fortunately, Congress and this Court have long

recognized that employer free speech is not lost in an

election. Congress recognized it in passing Section 8(c) of

the NLRA, 29 U.S.C. § 158(c), which states in pertinent

part:

The expressing of any views, argument or

opinion or the dissemination thereof, whether in

written, printed, graphic or visual form, shall not

constitute or be evidence of an unfair labor

practice under any of the provisions of this

chapter, if such expression contains no threat of

reprisal or force or promise of benefits.

The United States Supreme Court in NLRB v. Gissel

Packing Co., Inc., et al., 395 U.S. 575, 617 (1969),

explained that Section 8(c) is grounded in the First

Amendment’s protection of the employer’s right to free

speech and represents in effect a safe harbor created by

Congress for employer statements during an organizational

campaign:

6

But we do note that an employer’s free speech

right to communicate his views to his employees

is firmly established and cannot be infringed by

the union or the Board. Thus, Section 8(c) (29

U.S.C. § 158(c)) merely implements the First

Amendment by requiring that the expressions of

“any views, argument or opinion” shall not “be

evidence of an unfair labor practice,” so long as

such expression contains “no threat of reprisal

or force or promise of a benefit” in violation of

§ 8(a)(1).

The Court noted that under Section 8(c) an employer could

state his views as long as there were no “threats or reprisal”

and went on to describe the parameters for predictions about

the future:

He may even make a prediction as to the precise

effects he believes unionization will have on his

company. In such a case, however, the prediction

must be carefully phrased on the basis of

objective fact to convey an employer’s belief as

to demonstrably probable consequences beyond

his control or to convey a management decision

already arrived at to close the plant in case of

unionization.

Gissel, 395 U.S. at 618.

In this case, Contech fully complied with Section 8(c)

in its statements during the union election campaign. It

informed its employees of what it saw as the negative

consequences of a union. It did not threaten its employees.

It did not promise them a benefit. No unfair labor practice

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7

charge was filed against it for its comments. Nevertheless,

the Sixth Circuit held that the Board could overturn the

election anyway holding that Section 8(c) only protects an

employer against an unfair labor practice charge, but does

not limit the NLRB’s right to overturn an election based

upon employer comments which are not an unfair labor

practice:

Because Section 8(c) only applies to unfair labor

practice charges, Contech’s assertion that it

effectively precludes the Board from setting

aside the first election is without merit. The

Board may set aside on election even though an

employer’s conduct does not use to the level of

an unfair labor practice. See Tennessee Packers,

supra, 379 F.2d at 181.

Contech Division, SPX Corporation v. N.L.R.B., 164 F.3d

297 (6th Cir. 1998) (Pet. App. at 18a).

REASONS FOR GRANTING THE WRIT

This case is appropriate for consideration by this Court

based upon Rule 10(a) and (c) of the Rules of the Supreme

Court of the United States Under Rule 10(a), a factor for

this Court to consider is whether a:

United States court of appeals has entered a

decision in conflict with decision of another

United States court of appeals on the same

important matter.

Rule 10(c) states that another factor for the Court to consider

is whether:

8

a United States court of appeals has decided an

important question of federal law that has not

been, but should be, settled by this Court....

The Sixth Circuit’s decision holding that the NLRB may

overturn an election based upon employer statements that

do not violate Section 8(c) and are protected by the first

amendment raises an important issue of federal law which

has not been and should be settled by this Court. The Sixth

Circuit cited NLRB v. Tennessee Packers, Inc., 379 F.2d

172 (6th Cir. 1967), for the principle that an election can

be overturned where a party’s conduct interferes with the

freedom of choice in an election even though the conduct

does not constitute an unfair labor practice, but Tennessee

Packers did not involve conduct protected by Section 8(c).

It certainly does not stand for the proposition that the Board

can overturn an election simply because the employer

exercised its right to free speech.

In past cases where parties have objected to employer

statements during an election but have not filed unfair labor

practice charges, the Board itself has used Section 8(c) for

analyzing the validity of the objection. Diner’s Drive-In,

Inc., 2830 NLRB 971 (1986); Associated Roofing & Sheet

Metal Co., Inc., 255 NLRB 1349 (1981); The McLaughlin

Company, 187 NLRB 897 (1971); Honeywell, Inc., 225

NLRB 617 (1976); Turner Shoe Company, Inc.,249 NLRB

144 (1980); Mohawk Bedding Company, 204 NLRB 277

(1973); Warren W. Parke, 219 NLRB 546 (1975). Indeed,

in its brief to the Sixth Circuit in this case, the Board argued

that its decision complied with Gissel, which interpreted

Section 8(c), rather than arguing that Section 8(c) did not

apply. (NLRB Final Brief at 15-17).

9

If the Sixth Circuit’s decision is allowed to stand, an

employer’s right to free speech in a union election campaign

will be gone. Section 8(c), the past guideline for analyzing

employer’s comments, will be irrelevant. The NLRB can

simply set aside elections when the employer make

statements which comply with Section 8(c). The fact that

the statements cannot be used as evidence of an unfair labor

practice charge makes no practical difference. The result is

the same. The Board can overturn the election. Since the

employer has no standard for analyzing what it can say, it

is at risk of an overturned election if it says anything at all.

A decision which has such significant implications warrants

review by this Court.

Further, the decision in this case conflicts with the

recent decision of the District of Columbia Court of Appeals

in US Airways, Inc. v. National Mediation Board and

Communications Workers of America, AFL-CIO, 1999 WL

335366 at 4 (DC Cir. 5/28/99). In US Airways, Inc., the

Court reversed a United States District Court decision which

rejected US Airways’ claim that the National Mediation

Board had violated its first amendment rights by limiting

US Airways’ comments during a union election campaign.

Although the case arose under the Railway Labor Act, the

D.C. Circuit rejected the argument that the first amendment

analysis would be different under that act; holding:

In short, the Board provides us with nothing to

support its claim that the key characteristic of

representation elections identified by the Gissel

Court as mandating lesser-than-usual First

Amendment protection of employers’ expression

— the economic dependence of employee on

10

employer — should be thought of differently

when that employer is a carrier governed by the

RLA.

The D.C. Circuit then set aside a rerun election because

it found that the National Mediation Board (“NMB”) had

interfered with the employer’s first amendment rights by

telling the employer in advance what it could not say or do

during the representation campaign. In particular, the Court

found that NMB had acted improperly in prohibiting the

employer from predicting that if the union was elected the

employer could no longer use its employee roundtable

groups. The Court held:

To be sure, U.S. Airways might have explained

more precisely just what it was about the

roundtables that was inconsistent with union

representation. “But if unions are free to use the

rhetoric of Mark Antony while employers are

limited to that of a Federal Reserve Board

chairman, . . . the employer’s speech is not free

in any practical sense.” Crown Cork, 36 F.3d at

1140 (holding protected an employer’s

prediction that unionization would increase

costs, risking the loss of cost-sensitive projects

and consequent layoffs, notwithstanding

employer’s failure to emphasize that the loss of

such projects was only a risk and not an absolute

certainty).

(/d. at 7).

The US Airways decision recognizes that an employer’s

First Amendment rights are protected by Section 8(c) and

1]

an employer has a right to predict the impact of a union

election. The Sixth Circuit decision in this case says the

opposite. This issue needs to be resolved by this Court.

Perhaps sensing the confusion and potentially disastrous

effects of its sweeping ruling, the Sixth Circuit attempted

to justify the ruling by stating that it would have reached

the same result even if Section 8(c) applied, holding:

Furthermore, even if we were to apply Section

8(c)’s language to the election context, we note

that the employer’s expression of its views is

protected only “if such expression contains no

threat of reprisal... .” Where Contech crossed

the line in the present case is not its use of the

handouts, posters, and newspaper articles

showing job losses elsewhere that Contech

attributed to union representation, but in the

linking of such literature to its own intimidating

conduct in transferring production of the Ford

part to another Contech plant without

explanation, in its timing of the quality —

inspection tour by TRW officials, in its selective

removal of union literature from the plant |

lunchrooms, and in the misleading content of

certain pre-election statements made by its own

officials. The Board in effect concluded that

Contech’s overall conduct contained the threat

of reprisal, thus denying the employees a free

and fair election choice.

Contech Division, SPX Corporation v. NLRB, 164 F.3d 297

(6" Cir. 1998) (Pet. App. at 18a-19a).

12

There are two flaws with this rationalization. First, it

does not change the fact that the Sixth Circuit has adopted

a sweeping rule for that Circuit which chills an employer’s

first amendment right to express its opinion. If the panel

believed Section 8(c) was violated, it did not need to make

the sweeping ruling that Section 8(c) does not apply to

objections to election.

Second, in analyzing that the NLRB “in effect”

concluded that Contech violated 8(c), the Sixth Circuit

ignored the fact that there was no evidence in the record to

support that conclusion.

The Sixth Circuit acknowledged that Contech’s handout

of newspaper articles describing job losses elsewhere in the

face of unionization was acceptable. It nevertheless

concluded that the Board found the conduct unacceptable

because of the transfer of the production of a Ford part to

another Contech plant. However, record evidence

concerning the transfer does not support the conclusion.

Joe Barry testified that the Ford part work was initially

“kicked off in our Auburn, Indiana facility.” (Joseph Barry,

Tr. 300) (Pet. App. at 121a). Auburn is primarily focused

on Ford and Ford is very comfortable with “the quality and

delivery coming out of Auburn.” (Joseph Barry, Tr. 300)

(Pet. App. at 121a-122a). However, around March of 1994,

the Auburn facility did not have the capacity to do all of

Ford’s work. Accordingly, Contech asked Ford if it would

move the part to Dowagiac. Ford was “very reluctant to

have the NM-12 work job sent out of Auburn and sent to

Dowagiac.” (Joseph Barry, Tr. 300) (Pet. App. at 122a).

To ease Ford’s reluctance, Barry promised Ford that

the part job would be returned to Auburn “by the end of

13

1994.” (Joseph Barry, Tr. 301) (Pet. App. at 122a). This

commitment was made in March, 1994 — more than 8

months before the petition for election was filed. Contech

lived up to its commitment and the Ford part job was moved

from Dowagiac to the Auburn plant in approximately

December of 1994. (Joseph Barry, Tr. 301) (Pet. App. at

123a). There was absolutely no record evidence to conclude

that this was a “threat or refusal” in violation of Section

8(c). The Sixth Circuit could not have enforced the Board’s

decision, except for its conclusion that the Board could

overturn the election even if Contech did not violate Section

8(c).

Similarly, there was no evidence for the Sixth Circuit’s

interpretation that a “threat or reprisal” could be inferred

from Contech’s “timing of an inspection tour by TRW

officials.”

In fact, TRW, not Contech, chose the date for the

inspection, but both Contech and the panel are limited by

the Hearing Examiner finding that it was “not clear who

was responsible for the timing of the visit. . . .” (Hearing

Officer’s Report at 11) (Pet. App. at 91a). In any event,

there is no support in the record for the Sixth Circuit’s

conclusion that it was Contech’s timing.

The panel cited Contech’s “selective removal of union

literature from the plant lunchrooms.” However, the record

established that the removal was not selective. Three

supervisors engaged in this practice: Jim Rank, Ila Aurand

and Jim Humphrie. Mr. Rank testified that, consistent with

his job description, he cleaned the break area before, during

and after the union organizing campaign. (James Rank, Tr.

195-196) (Pet. App. at 127a).

14

Ms. Aurand threw away both union and company

literature. Any materials that were scattered about and

unattended she discarded. (Ila Aurand, Tr. 230) (Pet. App.

at 131a). Like all the other supervisors, Ms. Aurand’s job

description listed housekeeping as a duty and this is a duty

she carried out. (Ila Aurand, Tr. 222-223) (Pet. App. at 128a-

130a).

Mr. Humphrie picked up everything that was laying on

the tables and threw it in the trash, except for the magazines.

(Danny A. Truelove, Tr. 140) (Pet. App. at 132a-133a).

Humphrie also testified, uncontroverted, that the mess that

he picked up included “company literature, union literature

[and] candy wrappers.” (James Humphrie, Tr. 319) (Pet.

App. at 134a-135a). Truelove testified that after Humphrie

threw the union literature in the trash, Truelove went over

to the trash can, removed the material from the trash and

placed it back on the tables in the break area. (Brad Farver,

Tr. 348) (Pet. App. at 139a-140a).

Humphrie testified without contradiction, that

housekeeping is part of his job duties and that he cleaned

the break areas, before, during and after the union organizing

campaign. (James Humphrie, Tr. 319) (Pet. App. at 134a-

135a).

Finally, the Sixth Circuit’s reference to “the misleading

content of certain pre-election statements made by its

[Contech’s] officials” was not supported by record. TRW

is a parts supplier to the big three automobile companies

and a customer of Contech. Contech obtained TRW’s work

as a result of a union strike at another company. (Memo, J-

4 WwW (Pet. App. at 149a-150a); Gary Walker, Tr. 337 (Pet.

App. at 143a); Paul Brancaleon, Tr. 256-257) (Pet. App. at

144a-145a). Contech is now the sole source supplier of rack

and pinion steering housings for TRW. (Joseph Barry, Tr.

279, 292) (Pet. App. at 112a; 118a-119a). In 1994, TRW

15

represented approximately 90% of the work in Contech

Plant 3 and approximately 15% in Plant 1. (Robert K. Davis,

Tr. 266) (Pet. App. at 110a-111a).

TRW and Contech’s relationship is governed by a long-

term agreement. (LTA) (J-4ZZ) (Pet. App. at 151a-160a).

The long term agreement is dated July 15, 1991 and was

due to expire on December 31, 1995. It is customary within

the industry to renegotiate these long-term agreements far

enough in advance (around one year) so that there is

sufficient time for the supplier, such as Contech, to have

the engineering completed and the proper tools in place to

make the parts for the new car models. (Robert K. Davis,

Tr. 266) (Pet. App. at 146a).

Joe Barry, Contech Director of Manufacturing,

explained that a series of quality and delivery problems had

originated in the summer and fali of 1994. (Joseph Barry,

Tr. 282, 293-294) (Pet. App. at 113a; 119a-121a). During

the months of September, October and November, TRW

issued 46 “IRS/PRRS” which are inspection rejects or

problem reports. These documents identify parts which left

the Dowagiac plant certified as good parts, but which TRW

discovered to be defective. Mr. Barry explained that this is

a very serious problem. (Joseph Barry, Tr. 293-294)

(Pet. App. at 119a-120a).

TRW also considered the union election to be a serious

concern. On November 21, 1994, TRW’s General Manager,

Walt Kneuer telephoned Gary Walker, Contech’s Division

President, to express his concerns about the problems that

TRW was experiencing at the Dowagiac plant. Mr. Walker

memorialized this conversation in a memo and noted that

Mr. Kneuer had two concerns, one of which was the union

election:

16

His two major concerns are:

1. Why didn’t we inform him sooner of the

union problem in Dowagiac and the

potential threat to production of his parts;

and

2. We’re two days away from shutting down

his customer’s product lines in some cases

because of current production problems.

(Memo, J-4WW (Pet. App. at 149a); Gary Walker, Tr. 333-

334) (Pet. App. at 141a-142a).

Concerned about the quality problems, TRW called a

meeting with Contech at TRW headquarters. Mr. Barry, two

quality managers and the engineering manager represented

Contech in its meeting with TRW, held on November 14,

1994. (Joseph Barry, Tr. 283) (Pet. App. at 114a-115a).

TRW expressed its concerns about the poor quality of

product that it was receiving from Contech. TRW presented

a cracked casting and asked “how could this casting ever

get out of your plant?” (Joseph Barry, Tr. 283) (Pet. App.

at 114a). TRW demanded to know what Contech was doing

to correct those problems and wanted assurances that

Contech was putting procedures in effect to contain its

problems internally. (Joseph Barry, Tr. 283) (Pet. App. at

114a). Mr. Barry agreed to return on a monthly basis to

report what steps Contech was taking. (Joseph Barry, Tr.

285-286) (Pet. App. at 116a-117a).

Because of the critical nature of the quality problems,

Mr. Barry and the other members of management held a

series of meetings in late 1994, making everyone in the plant

17

aware of them. (Joseph Barry, Tr. 284) (Pet. App. at 1 15a).

As Mr. Barry explained:

We had specific plant meetings that, that people

came to, specifically in Plant 3 because that’s

where most of the TRW product was produced.

Specifically in that plant, we had those meetings

in the break room. We had one meeting per shift.

We talked about the critical nature of where we

were with TRW, what our concerns were.

We had actually brought home some of those

same castings that were presented in the TRW

meeting, and we had each of us touch and feel

those castings so we all had a good sense of what

were those problems, specifically.

(Joseph Barry, Tr. 284) (Pet. App. at 115a).

Despite the serious quality problems that TRW was

experiencing with Contech, in November of 1994, Gary

Mahon (TRW’s Director of Purchasing in America)

contacted Robert Davis (Contech’s Director of Sales and

Marketing) to begin negotiations on an extension of the

LTA. (Robert K. Davis, Tr. 263) (Pet. App. at 108a-109a).

Sometime between November 14 and November 18, Mr.

Davis met with Mr. Mahon. At the beginning of the meeting,

Mr. Davis explained to Mr. Mahon that the UAW had

petitioned Contech for a vote at the Dowagiac facility.

Shortly thereafter, Mr. Mahon informed Mr. Davis that

TRW would be postponing negotiations on the LTA until

after the election. (Robert K. Davis, Tr. 264) (Pet. App.

at 109a-110a).

18

Employee Shirley Stroud testified about statements

allegedly made by Mr. Barry and Contech Manufacturing

Manager Brad Farver concerning the negotiations of the

LTA. Ms. Stroud testified that “the main thing that I

remember what Joe [Barry] said about TRW is that they

wouldn’t sign any more contracts with us and that they

didn’t want any long-term contract signed until after our

election.” (Shirley L. Stroud, Tr. 108-109) (Pet. App. at

147a-148a).

Barry and Farver both consistently testified that they

made statements about the LTA at a meeting when they

introduced the Guardian Glass video. (Joseph Barry, Tr.

303-304 (Pet. App. at 123a-125a); Brad Farver, Tr. 343-

345) (Pet. App. at 136a-139a)). It was true that the

negotiations of the LTA were suspended because of the

union campaign, but Barry and Farver also referenced the

quality problems that existed with TRW. (/d.).

Quite simply, these statements were not “threats of

reprisal.” The statements did not violate Section 8(c) and

the panel’s only basis for enforcing the Board’s Order was

its decision that Section 8(c) does not protect as employer

where there are objections to an election. That sweeping

ruling adopts a rule which undermines the employer’s first

amendment rights. It should be reversed.

19

CONCLUSION

For the reasons set forth herein, Contech requests that

this Court grant its Petition for Writ of Certiorari and reverse

the decision of the United States Court of Appeals for the

Sixth Circuit enforcing the NLRB order.

Respectfully submitted,

CraiGc H. LUBBEN

Counsel of Record

David M. Buday

MILLER, JOHNSON, SNELL

& CuMMISKEY, P.L.C.

425 West Michigan Ave.

Kalamazoo, MI 49007

(616) 226-2950

PETER J. KOK

MILLER, JOHNSON, SNELL

& CumMISKEY, P.L.C.

800 Calder Plaza Bldg.

Grand Rapids, MI 49503

(616) 831-1700

Attorneys for Petitioner