Opposition Brief — Sewell-Allen Big Star, Inc. v. National Labor Relations Board

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No. 91-1263

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

SEWELL-ALLEN BIG STAR, INC., ET AL.,

PETITIONERS

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

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

JERRY M. HUNTER

General Counsel

D. RANDALL FRYE

Acting Deputy General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether the National Labor Relations Board

reasonably exercised its discretion in ordering peti-

tioners to bargain with the union despite the passage

of time and employee turnover that occurred while

petitioners were litigating their obligation to bargain.

2. Whether the Board correctly ruled that peti-

tioners violated Section 8(a)(5) and (1) of the

National Labor Relations Act, 29 U.S.C. 158(a) (5)

and (1), by withdrawing recognition from and refus-

ing to bargain with a successor union after its merger

with the incumbent union.

3. Whether the Board properly attributed to peti-

tioner Baker Bros. the antiunion conduct of its super-

visors in finding that Baker Bros. violated Section

8(a) (1) of the Act.

TABLE OF CONTENTS

EE EO Re DOD CTC

RSE aI Tel eee Oe ORR REC I

ESE EST a ee ea eC ON a a DT Cee

Argument ...... ar Seen adi abilia stab nlichedunsailpmapienbiseeoinie

EN ETS Ee EERE aE OE ED TN ED OE OE CL EEO

TABLE OF AUTHORITIES

Cases:

Continental Web Press, Inc. v. NLRB, 742 F.2d

I PO acre nwccamemiaaneenunes

El Torito-La Fiesta Restaurants, 284 N.L.R.B. 518

(1987), enforced mem., 852 F.2d 571 (9th Cir.

ee id a aa i silane ea vances ganmbaniabinionon

Fall River Dyeing & Finishing Corp. Vv. NLRB, 482

Neen ee a slehabin

Franks Bros. v. NLRB, 321 U.S. 702 (1944) Seba

International Ladies’ Garment Workers’ Union v.

Quality Mfg. Co., 420 U.S. 276 (1975) .....000000....

Knapp-Sherrill Co. :

SE is ME OED ona vcavscennneqncnenenewnenaes

OO nas eck bcwccancsnanncenness

Local Lodge No. 1424 Vv. NLRB (Bryan Mfg. Co.),

saan sarisdisinsaeahienbneinnaen

Montgomery Ward & Co., 115 N.L.R.B. 645

(1956), enforced, 242 F.2d 497 (2d Cir.), cert.

denied, 355 U.S. 829 (1967) ..................................

NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.

Eng nes ee Lt A

NLRB vy. District 30, United Mine Workers, 422

F.2d 115 (6th Cir. 1969), cert. denied, 398 U.S.

ER EE SS RR le Ee

NLRB Vv. Katz, 369 U.S. 786 (1962) ........................

NLRB v. Schroeder, 726 F.2d 967 (3d Cir. 1984)..

NLRB Vv. Tragniew, Inc., 470 F.2d 669 (9th Cir.

io) — Cie cane

Cases—Continued : Page

Texas Petrochemicals Corp. V. NLRB, 923 F.2d

398 (Sth Cir. 1991) wads 7

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

(1951) sesindinstedaaasiibaiias Sas 12

Ventura County Star-Free Press, 279 N.L.R.B. 412

(1986) ae 4

Woelke & Romero Framing, Inc. V. NLRB, 456

U.S. 645 (1982) a 6

Statutes and regulation:

National Labor Relations Act, 29 U.S.C. 151 ef

seq.:

§ 8(a) (1), 29 U.S.C. 158 (a) (1) -... 3,5

§ 8(a) (5), 29 U.S.C. 158 (a) (5) 3

$ 10(b), 29 U.S.C. 160 (b) 4,5, 8,9, 10,11

§ 10(e), 29 U.S.C. 160(e) 6

29 C.F.R. 102.48 (d) (1) 6

Miscellaneous :

Department of Labor, Health and Human Services,

Education, and Related Agencies Appropriations

for 1992: Hearings Before a Subcomm. of the

House Con m. on Appropriations, 102d Cong.,

Ist Sess. Pt. 7 (1991) re)

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1263

SEWELL-ALLEN BIG STAR, INC., ET AL.,

PETITIONERS

Uv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTd CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

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

A229-A242) is unreported, but the judgment is

at 943 F.2d 52 (Table). The decision and

order of the National Labor Relations Board (Board)

(Pet. App. A180-A228), including the recommended

decision of the administrative law judge (ALJ) (Pet.

App. Al-A150), is reported at 294 N.L.R.B. 312.

The decision of the court of appeals was filed on

August 23, 1991. A petition for rehearing and re-

hearing en bane was denied on November 1, 1991.

JURISDICTION

(1)

Pet. App. A243-A244. The petition for a writ of

certiorari was filed on January 29, 1992. The juris-

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

1254(1).

STATEMENT

1. Petitioners Sewell-Allen Big Star, Inc., Baker

Bros., Inc., Gilbert Allen Big Star, Inc., and SMF

Management, Inc., each operate one or more retail

grocery stores in the Memphis, Tennessee, area.

Prior to 1982, petitioners’ meat department employ-

ees were represented by United Food and Commercial

Workers International Union Local 452 (Local 452).

Each bargaining unit was covered by a collective bar-

gaining agreement which was to expire on October

30, 1982. Pet. App. A230.

In January 1982, officials of incumbent Local 452

agreed to merge Local 452 into United Food and

Commercial Workers International Union Local 1529

(Local 1529 or Union). Pet. App. A231. The mem-

bership of Local 452 voted to approve the merger,

which became effective on April 1, 1982. bid. Non-

members were excluded from voting on the merger.

Id. at A182.

On April 7, 1982, Local 1529 notified each peti-

tioner in writing that the Local 452 membership had

approved the merger, and that Local 1529 would

function as the representative of bargaining-unit em-

ployees. Pet. App. A182-A183. Following this noti-

fication, petitioners voluntarily recognized Local 1529

as the successor to Local 452. Jd. at A194. Petition-

ers continued to process grievances, to make employee

benefit fund contributions, and to remit union dues.

Id. at A183.

During the summer of 1982, however, three super-

visors employed by Baker Bros. began circulating a

decertification petition against the Union. As part

of their campaign to oust the Union, these super-

visors, who were members of the bargaining unit,

told employees that Al Baker, owner and president

of Baker Bros., would not sign a new contract with

Local 1529, that management would reward them

with better wages and benefits if they ousted Local

1529, and that those employees who supported the

Union would lose their jobs. Jd. at A191. After the

decertification petition was filed with the Board, Al

Baker thanked the employees for their support and

stated that the company would run more smoothly

once he had gotten rid of all the “interruptions.”

Ibid.

Petitioners and Local 1529 conducted initial bar-

gaining sessions for new labor contracts in early Oc-

tober 1982. On November 8, 1982, however, after the

collective-bargaining agreements had expired, peti-

tioners notified Local 1529 that they no longer recog-

nized it as the lawful bargaining representative of

their employees, claiming that the ‘April 1982 merger

was invalid because nonmembers of Local 452 had not

been permitted to vote. Jd. at A183-A184. Petition-

ers refused to bargain further with the Union, and

proceeded to implement unilateral changes in terms

and conditions of employment. Jd. at A200-A201.

2. The ALJ found (Pet. App. Al-A144) that pe-

titioners’ withdrawal of recognition from and refusal

to bargain with Local 1529 violated Section 8(a) (5)

and (1) of the National Labor Relations Act, 29

U.S.C. 158(a) (5) and (1). The ALJ also found that

Baker Bros.’ anti-union tactics constituted independ-

ent violations of Section 8(a)(1) of the Act.

The Board affirmed. Pet. App. A180-A228. The

Board found that petitioners had “continued to deal

with Local 1529 over a 7-month period in the iden-

tical manner with which they had dealt with Local

452.” Pet. App. A184. This course of conduct, in the

Board’s view, “constituted an acceptance of the rep-

resentative status of Local 1529.” Ibid. Additionaliy,

the Board found that Local 1529 relied to its detri-

ment on petitioners’ recognition of its status as bar-

gaining representative “because it took no action to

reestablish its status during the 7-month period be-

tween the notice of the merger and [petitioners’ j

withdrawal of recognition.” Jbid. Relying on well-

settled law,’ the Board concluded that petitioners

were estopped from raising the validity of the merger

as a defense to the Section 8(a) (5) and (1) charges.

Ibid. The Board also agreed with the ALJ that the

policies underlying Section 10(b) of the Act’ barred

petitioners from challenging the majority status of

Local 1529 because their challenge came more than

six months after they had accepted Local 1529 as the

successor to Local 452. Jd. at A185.

The Board also affirmed the ALJ’s determination

that Baker Bros. committed independent unfair labor

practices. In particular, the Board found that the

anti-union conduct of the Baker Bros. supervisors in

fostering decertification efforts was properly attrib-

utable to Baker Bros., because Al Baker “furthered

1El Torito-La Fiesta Restaurcnts, 284 N.L.R.B. 518, 519-

520 (1987), enforced mem. in relevant part, 852 F.2d 571

(9th Cir. 1988); Ventura County Star-Free Press, 279

N.L.R.B. 412, 419 (1986) ; Knapp-Sherrill Co., 263 N.L.R.B.

396, 398 (1982), and 268 N.L.R.B. 800, 801 n.3 (1984).

2 Section 10(b), 29 U.S.C. 160(b), provides that “‘no com-

plaint shall issue based upon any unfair labor practice occur-

ring more than six months prior to the filing of the charge

with the Board and the service of a copy thereof upon the

person against whom such charge is made.”

he '

the reasonable perception that [the supervisors] were

acting for and on behalf of management when they

circulated the [decertification] petition * * *, solic-

ited signatures, and made repeated coercive state-

ments to the employees concerning the likely favor-

able management reaction.” Jd. at A192.°

The Board ordered petitioners to “bargain[], on

request, with the Union as the collective-bargaining

representative of their employees in the appropriate

units.” Pet. App. A202.

3. The court of appeals affirmed in an unpublished

opinion. Pet. App. A229-A242. The court agreed

with the Board that Section 10(b) barred petitioners’

challenge to the validity of the merger because peti-

tioners had failed to challenge the merger within six

months after they reczived “unambiguous” notice

thereof. Pet. App. A235-A237. The court also agreed

that petitioners were estopped from challenging the

merger because they had recognized and dealt nor-

mally with the Union until after the contracts ex-

pired, thus causing the Union to rely on petitioners’

recognition of its status. Jd. at A237-A238.

The court also upheld the Board’s finding that the

conduct of the Baker Bros. supervisors was properly

attributable to Baker Bros. for purposes of Section

8(a)(1). Pet. App. A240-A242. The court found

3The Board also found that Al Baker violated Section

8(a)(1) by promising employees improved working condi-

tions if they would decertify Local 1529 (Pet. App. A190 n.10,

A200), and by interrogating an employee concerning his

union activities (id. at A240 n.2, A199), and that Baker Bros.

also committed other Section 8(a) (1) violations (Pet. App.

A198-A200). In addition, the Board found that petitioner

Sewell-Allen Big Star, Inc. committed various acts of anti-

union conduct in violation of Section 8(a) (1). 7d. at A195-

A198. Petitioners do not seek review of those rulings.

both that Al Baker ratified the supervisors’ activities

and that other evidence “supports the inference that

[the supervisors] acted with Baker’s approval.” Jd.

at A242.

ARGUMENT

1. Petitioners assert (Pet. 5-10) that enforcement

of the Board’s order requiring them to bargain with

Local 1529 would be inappropriate because of what

petitioners characterize as the Board’s “gross delay”

in rendering its decision. This claim is not properly

presented, and in any event lacks merit.

a. Petitioners did not raise this claim before the

Board.* Since petitioners have pointed to no “extra-

ordinary circumstances” that would excuse their fail-

ure to exhaust their administrative remedies, the

courts lack jurisdiction to consider their claim. See

Section 10(e), 29 U.S.C. 160(e); Woelke & Romero

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

(1982); International Ladies’ Garment Workers’

Union v. Quality Mfg. Co., 420 U.S. 276, 281 n.3

(1975).

b. In any event, there is no merit to petitioners’

contention that the Board’s delay precludes enforce-

ment of its order. Petitioners assert (Pet. 6) that

“there is little or no reason to suppose the Union has

majority support after so great a length of time,”

but this Court has held that a union’s loss of majority

status during delays due to litigation does not ter-

minate an employer’s obligation to bargain. See

NLRB y. Katz, 369 U.S. 736, 748 n.16 (1962);

Franks Bros. v. NLRB, 321 U.S. 702, 703-706

4Such a claim could have been raised before the Board via

a motion for reconsideration, rehearing, or reopening of the

record. See 29 C.F.R. 102.48(d) (1).

(1944). While noting that “[i]nordinate delay in

any case is regrettable,” the Court has rejected the

contention that enforcement of a bargaining order

should be denied or conditioned on the holding of a

new election because of the Board’s delay in issuing

the order, even when the employees have subsequently

repudiated the union. Katz, 369 U.S. at 748 n.16.

Nor are petitioners correct in asserting (Pet. 5-7)

that the decision of the court below creates a conflict

among the circuits. In both Texas Petrochemicals

Corp. v. NLRB, 923 F.2d 398 (5th Cir. 1991), and

Continental Web Press, Inc. v. NLRB, 742 F.2d 1087

(7th Cir. 1984), the courts exercised their equitable

discretion to deny enforcement of the Board’s bar-

gaining orders based in part on the Board’s delay. In

both cases, however, the courts relied on factors in

addition to administrative delay to justify their deci-

sion, including in particular the existence of per-

suasive evidence that the unions involved had lost

majority status.° Petitioners presented no such evi-

>In Texas Petrochemicals, for example, the employees sub-

mitted unsolicited petitions showing that a majority of mem-

bers of the bargaining unit no longer wanted union represen-

tation; the court referred to the petitions as “significant facts

which must be considered by this court.” 923 F.2d at 405. In

denying enforcement of the bargaining order, moreover, the

court made clear that the mere fact of Board delay was not

the sole basis for its decision, which was instead based on

“all of the facts in th[e] record.” Jd. at 406. Similarly, in

Continental Web Press, an employee petition circulated during

the period of litigation delay showed that 59 of the 72 mem-

bers of the bargaining unit no longer wanted union represen-

tation. 742 F.2d at 1094. As the court stated, “[a]ll of these

things considered, the probability that the union still has the

support of a majority of the [employees] is small.” Jd. at

1095. The court accordingly indicated that it would not en-

force a bargaining order. /bid.

SoS

dence in this case, and thus Texas Petrochemicals and

Continental Web Press are inapposite.°®

Finally, there is no merit to petitioners’ contention

that review by this Court is warranted because

“gross Board delay * * * continues to be a recurrent

problem.” Pet. 9. The problem of Board delay has

recently been substantially mitigated and is unlikely

to recur.’ Accordingly, review is not warranted.

2. Petitioners assert (Pet. 10-11) that the Board

and the court of appeals erred in applying the policies

underlying Section 10(b) to bar their challenge to the

validity of the merger of Locals 1529 and 452. This

contention does not merit review.

First, Section 10(b) was only an alternative

ground for the rejection of petitioners’ challenge to

the merger. The Board also found, and the court of

appeals agreed, that petitioners were estopped from

6 Petitioners offered no evidence that the Union now lacks

majority support; instead they merely assert that “the vast

majority of the present meat market employees were not even

employed in 1982.” Pet. 5. The mere change in personnel does

not, of course, suffice to rebut the normal presumption of

majority union support. See, e.g., Fall River Dyeing & Finish-

ing Corp. Vv. NLRB, 482 U.S. 27, 37-39 (1987) ; see also NLRB

v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990) (em-

ployer not entitled to indulge presumption that striker replace-

ments for union members oppose the union).

7 The Board has implemented the recommendations of the

General Accounting Office that it put into place a time limit

for each decision stage as well as for final issuance of deci-

sions. Moreover, the Board has reduced its backlog from 1,679

unfair labor practice and representation cases in February

1984 to 523 cases in January 1991. See Statement of James

M. Stephens, Chairman of the National Labor Relations

Board, Department of Labor, Health and Human Services,

Education, and Related Agencies Appropriations for 1992:

Hearings Before a Subcomm. of the House Comm. on Appro-

priations, 102d Cong., Ist Sess. Pt. 7, at 593 (1991).

NN ee

questioning the validity of the merger by virtue of

their earlier conduct ratifying the merger and the

Union’s reliance thereon. Petitioners do not challenge

that finding, which is dispositive of their claim.

Thus, review of the Section 10(b) issue by this Court

could not change the outcome of the case.

Second, the Board’s ruling that the policies under-

lying Section 10(b) barred petitioners’ attack on the

merger was correct, and does not conflict with Local

Lodge No. 1424 v. NLRB (Bryan Mfg. Co.), 362 U.S.

411 (1960). In Bryan Mfg. this Court held that,

where “a collective bargaining agreement and its en-

forcement are both perfectly lawful on the face of

things, and an unfair labor practice cannot be made

out except by reliance on the fact of the agreement’s

original unlawful execution, an event which, because

of limitations, cannot itself be made the subject of an

unfair labor practice complaint,” the policies under-

lying the Section 10(b) limitations period preclude

converting “what is otherwise legal into something

illegal.” 362 U.S. at 419.8 Accordingly, the Court

held that a contract, lawful on its face, could not be

‘found to be unlawful because it was entered into with

a minority union, where the charge of illegality was

filed more than six months after the contract was

executed.

As the Board explained,-the policies identified in

Bryan Mfg. would clearly preclude an untimely un-

fair labor practice complaint challenging the validity

* According to the Court, the policies underlying Section

10(b) are “to bar litigation over past events ‘after records

have been destroyed, witnesses have gone elsewhere, and rec-

ollections of the events in question have become dim and con-

fused,’” and “‘to stabilize existing bargaining relationships.”

362 U.S. at 419.

of an employer’s recognition of a successor union.

Pet. App. A185. Those same policies would equally

be “offended by an indirect attack on the validity of

the merger process through a defense to a later with-

drawal of recognition.” Jd. at A186. Petitioners did

not contest the validity of the merger—and thereby

Local 1529’s majority status—until November 1982,

seven months after they were first notified of the

merger and had accepted Local 1529 as the represen-

tative of their employees. Under the principles of

Bryan Mfgq., petitioners’ challenge to Local 1529’s

status was barred by the policies underlying Section

10(b).

There is no merit to petitioners’ contention (Pet.

10) that the Board’s application of Section 10(b) is

erroneous because that provision is “simply a statute

of limitations regulating the General Counsel’s prose-

cution of unfair labor practice matters.’”’ In order to

fully effectuate the policies underlying Section 10(b),

the Board and the courts have applied it to bar the

assertion of stale unfair practice claims by employ-

ers and unions as a defense to other charges. See,

e.g., NLRB vy. Tragniew, Inc., 470 F.2d 669, 672-673

(9th Cir. 1972) (barring evidence of union’s loss of

certification election as defense to charge of refusal!

to bargain); NLRB vy. District 30, United Mine

Workers, 422 F.2d 115, 120-122 (6th Cir. 1969),

cert. denied, 398 U.S. 959 (1970). Petitioners point

to no contrary authority.

Petitioners also suggest (Pet. 10) that the decision

below conflicts with Bryan Mfg.’s statement that Sec-

tion 10(b) does not bar the use of evidence of earlier

events “‘to shed light on the true character of matters

occurring within the [six month] limitations period.”

362 U.S. at 416-417. Petitioners did not seek to “‘shed

light” on anything that happened within six months

of their withdrawal of recognition, however. Instead,

they sought to justify their action by showing that

the merger election, which occurred outside the six-

month period, was unlawful. Thus, petitioners at-

tempted to use stale evidence to “cloak with illegal-

ity’ events that occurred outside the limitations

period and which could not, therefore, have been

made the subject of an unfair labor practice com-

plaint. 7d. at 417. The policy of Section 10(b) for-

bids such an indirect challenge to the validity of the

merger.

3. Baker Bros. claims (Pet. 11-12) that the Board

erred in attributing to it the anti-union conduct of

three supervisors who were also members of the bar-

gaining unit. This fact-bound claim does not merit

review.

Under Montgomery Ward & Co., 115 N.L.R.B. 645

(1956), enforced, 242 F.2d 497 (2d Cir.), cert. de-

nied, 355 U.S. 829 (1957), conduct engaged in by a

supervisor who is a member of the bargaining unit

is attributable to the employer where there is evi-

dence that the employer “encouraged, authorized, or

ratified the supervisor’s activities or acted in such a

manner as to lead employees reasonably to believe

that the supervisor was acting for or on behalf of

management.” 115 N.L.R.B. at 647. The central in-

quiry is whether the employee hearing a supervisor’s

threats would have just cause to believe that the super-

visor was acting for and on behalf of the employer.

NLRB v. Schroeder, 726 F.2d 967, 971 (3d Cir. 1984).

The Board found that the supervisors told employees

that Al Baker would not sign a new contract with the

Union, that management would not negotiate with

the Union, that management would reward employees

with better wages and benefits if they ousted the

Union, and that if employees supported the Union

they would lose their jobs. Pet. App. A191.° In

addition, the Board found that after the decertifica-

tion petition was filed Al Baker told employees that

he appreciated their support and that as soon as he

could “get rid of all the ‘interruptions’”’ the com-

pany would “operate a lot smoother.” /bid. On these

facts, it was entirely proper for the Board to con-

clude that “Al Baker furthered the reasonable per- —

ception that [the supervisors] were acting for and

on behalf of management when they circulated the

petition seeking ouster of the Union, solicited signa-

tures, and made repeated coercive statements to the

employees concerning the likely favorable manage-

ment reaction.” Jd. at A192.

Baker Bros. mischaracterizes the Board’s finding

as a determination that Al Baker “ratified” the su-

pervisors’ conduct after the decertification petition

had been filed and that this “ratification” retroac-

tively “tainted” the petition. Pet. 4, 12. As is plain

from the Board’s analysis, the Board actually found

that the bargaining unit employees reasonably be-

lieved the supervisors to be acting for and on behalf

of Baker Bros. at the time they circulated the de-

certification petition.” Al Baker’s comments after

the petition was filed served merely to bolster that

reasonable belief. The Board’s factual findings,

® These findings belie petitioners’ suggestion that the de-

certification petition was “lawfully circulated” and that em-

ployees “exercise[d] * * * free choice in signing the petition.”’

Pet. 12; sée also Pet. 2 n.2.

10 The court of appeals seems to have relied in part on a

ratification theory, see Pet. App. A241, but it also agreed with

the Board that the evidence “support[ed] the inference that

[the supervisors] acted with Baker’s approval.” Jd. at A242.

which were sustained by the court below (Pet. App.

A241-A242), are supported by substantial evidence,

and thus present no issue warranting further review.

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

490-491 (1951).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.