Amicus Curiae Brief — Willmar Electric Service, Inc. v. National Labor Relations Board

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No. 92-687 | YAN 217 1993

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IN THE

Suprenve Court of the United States

OCTOBER TERM, 1992

WILLMAR ELECTRIC SERVICE, INC.,

¥ Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICI CURIAE OF THE

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AND

NATIONAL ASSOCIATION OF MANUFACTURERS

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE PETITIONER

Of Counsel: PETER G. NASH *

STEPHEN A. BOKAT MARSHALL B. BABSON

ROBIN S. CONRAD ELIZABETH I. ToRPI!TY-DONZELLA

Mona C. ZEIBERG OGLETREE, DEAKINS, NASH,

NATIONAL CHAMBER SMOAK & STEWART

LITIGATION CENTER, INC. 2400 N Street, N.W.

1615 H Street, N.W. Fifth Floor

Washington, D.C. 20062 Washington, D.C. 20037

(202) 463-5337 (202) 887-0855

Counsel for the Chamber of

Commerce of the

United States of America and

MANUFACTURERS OF THE for the National Association of

UNITED STATES Manufacturers of the United

1331 Pennsylvania Ave., N.W. States of America

Suite 1500-North Lobby Amici Curine

Washington, D.C. 20004

(202) 637-3000 * Counsel of Record

JAN AMUNDSON

QUENTIN RIEGEL

NATIONAL ASSOCIATION OF

iain

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

INTERESTS OF THE AMICI CURIAE ........................ 1

ith | 6} 4 et oie y | | ee ee 4

REASONS FOR GRANTING THE PETITION FOR

Of ie ee yy) 2) | GR eenenennre , 6

I. PAID UNION ORGANIZERS ARE NOT “EM-

PLOYEES” UNDER THE LANGUAGE OF

SECTION 2(3) OF THE ACT ............... nee 6

Il. THE D.C. CIRCUIT FAILED TO EXAMINE

THE STRUCTURE OF THE NATIONAL

LABOR RELATIONS ACT AND ITS ANIMAT-

ING POLICIES AND THUS FAILED TO AP-

PREHEND THAT THE BOARD’S INCLU-

SION OF PAID UNION ORGANIZERS IN

THE DEFINITION OF “EMPLOYEE” WAS

AN UNREASONABLE INTERPRETATION

OF THE ACT .......... reel Mee 13

CONCLUSION ........... . Ni feananacaoant 20)

ii

TABLE OF AUTHORITIES

CASES Page

Allied Chemical Workers v. Pittsburgh Plate Glass,

GOG UL. BE CRG ES sccnceeesneanneeetbion 13

Allis-Chalmers Corp. v. Lueck, 471 US. 202

CII snncsnsersninsoxnesceriecsetiniosholiipdssteauiaee haa eae Deitel 2

Anthony Forest Products, 231 NLRB 976 (1977)... 7

Betra Mfg. Co., 233 NLRB 1126 (1977), enf’d, 624

F.2d 192 (9th Cir. 1980), cert. denied sub nom.

Thomas v. NLRB, 450 U.S. 996 (1981) .............. 16

Blassie v Kroger Co., 345 F.2d 58 (8th Cir. 1965) .. 14

Canonie Transportation Co., 289 NLRB 299

CRIED cicssscnicneenennicnceeseieeccas nang emaiaaniiaeeadaaaeae 16

Chevron U.S.A., Inc. v. Natural Resources Defense

Cooenmnanl, GOW SED. TE CD wisni essen srccssctiecncsecsncs 7,8

Dee Knitting Mills, Inc., 214 NLRB 1041 (1974),

enf’d, 588 F.2d 312 (2d Cir. 1975) ..............00...... 7

Dubuque Packing Co., Inc., 303 NLRB No. 66

OD ysssxcdacandweccccoeas cisions deena 16

E.I. DuPont de Nemours & Co., Inc., 210 NLRB

Ek. | IMRT Selman Em TERA N SIAR NY UIE TENE 16-17

Escada (USA), Inc., 304 NLRB No. 109 (1991),

enf’d without opinion, 970 F.2d 898 (3d Cir.

| + OLD SNP LSC Ie Pi PMR ty Ce a ne 7

Escada, Inc. v. NLRB, 970 F.2d 898 (3d Cir.

PU wicniccese can ccesscapdiparmcticcaneeplia ua teann ae ie eare 3

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

Seek ee EE wavieiacoceancnceinacnae Maeaeeaenres: 2

First National Maintenance Corp. v. NLRB, 452

U.S. 666 (1981) ..... LON RAS oe UE A RC 16

Fort Smith Chair Co., 148 NLRB 514 (1968), aff’d

on other grounds, 336 F.2d 738 (D.C. Cir. 1964) .. 11

Gateway Coal Co. v. United Mine Workers of

America, 414 U.S. 368 (1974) _......02000--cceeee cee. 3

General Electric Co. v. NLRB, 412 F.2d 5612 (D.C.

5; RRA um I OT Mee lor El Sis 48 Ta tin ee 15

General Motors Corp. v. Romein, 112 S.Ct. 1105

2; et ie a ae 3

Gilmer v. Interstate/Johnson Lane Corp., 111

ies, SIE MMPS | viessocassacsakeccceanautesenone etanaiieton 2

Golden State Transit Corp. v. Los Angeles, 476 U.S.

SORE CNMI és <kccusihccasscassaenceanendetnueieaneaasieamomaaties 2

ili

TABLE OF AUTHORITIES—Continued

Page

H.B. Zachry Co., 289 NLRB 838 (1988) enf.

denied 886 F.2d 70 (4th Cir. 1989) 7

H.B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir.

ee Aaa tal naa preZ Sl OC OD mee Ae

H.J. Heinz Co. v. NLRB, 311 U.S. 614 (1940) ...... 15

Henlopen Mfg. Co., 235 NLRB 188 (1978), enf.

denied on other grounds, 599 F.2d 26 (2d Cir.

1979) ..... a oedtbees AA Nacll Isa OLDS a A 7

Lechmere, Inc. v. NLRB, 112 S.Ct. 841 (1992)... 9, 14,

15, 17

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

EES ARNE NE pec Es a ee 2

Machinists v. NLRB, 311 U.S. 72 (1940) _............ 15

Margaret Anzalone, Inc., 242 NLRB 879 (1979) .... 7

Multimatic Products, 288 NLRB 1279 (1988)... 17

Nationwide Mutual Insurance Co. v. Darden, 112

I I coca cig loci sconce caceuoacss 8,14

NLRB v. Amaz Coal Co., 453 U.S. 322 (1981)... 15

NLEB v. Bell Aerospace, 416 U.S. 267 (1974)... 13, 19

NLRB v. Burns Int’l Security Services, 466 U.S.

GHAI AOI ne ROI Aa Sn 2

NLRB v. Corsicana Cotton Mills, 178 F.2d 344 (5th

ee ee ec 16

NLRB v. Electrical Workers, 481 U.S. 573 (1987 = 15

NLRB v. Elias Bros. Big Boy, Inc., 327 F.2d 421

RE a Nr NO NALS 4

NLRB v. Henlopen Mfa. Co., Inc., 599 F.2d 26

EERE LE Aa Eine Oe SO 4

NLRB v. News Syndicate Co., 365 U.S. 696 (1961) .. 16

NLRB v. Superior Fireproof Door & Sash Co., 289

fe A se : | mene 16

Oak Apparel, Inc., 218 NLRB 701 (1975) ............... 7

Office Employees Int’l Union, Local 11 v. NLRB,

Sr 10

Palby Lingerie, 252 NLRB 176 (1980) ................... 7

Parker-Robb Chevrolet, 262 NLRB 402 (1982),

review denied sub nom. Auto Salesmen’s Local

1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983).. 11, 16

Phelps Dodge Corp. v. NLRB, 313 U.S. 717

LURE HE RSE RUS, al on re 7

Pilliod of Mississippi, Inc., 275 NLRB 799 (1985) .. 7

iv

TABLE OF AUTHORITIES—Continued

Page

Regents of the University of California v. Bakke,

ne ne aeaasesmenomiannd 2

Sakrete of N. Cal., Inc. v. NLRB, 382 F.2d 902

(9th Cir. 1964), cert. denied, 379 U.S. 961

IEE seiiiseresgh sie sauauha a halal eiabatahaindeacnininesiinaconioas 16

Scofield v. NLRB, 394 U.S. 423 (1969) .................... 16

Sears, Roebuck and Co., 170 NLRB 533 (1968).... 7

Star Tribune, 295 NLRB 548 (1989) _............0000..... 16

Sunland Construction Co., Inc., 309 N.L.R.B. No.

RU hcl ea re ee ea 2%, 33

Teamsters v. Daniel, 439 U.S. 551 (1979) .............. 3

Town & Country Electric, Inc., 309 NLRB No.

gE gia aA I ORR ae Soe Rae RS Ee eae 2, 7,10

Trans World Airlines v. Thurston, 469 U.S. 111

SC AIT A RA ERS oS SERN Ch ACES TE 2

299 Lincoln Street, Inc., 292 NLRB 172 (1988) .. 17

United Technologies Corp., 274 NLRB 1069 (1985) :

enf’d, 789 F.2d 121 (3d Cir. 1986) 16

Willmar Electric Service, Inc. v. NLRB, 968 F.2d

5 a ea. | Seen 6, 12-13, 18, 19

Windemuller Electric, Inc., 306 NLRB No. 125

se RRR TAR TC EAE Ei EI 7

Zayre Dep’t Stores, 289 NLRB 1183 (1988) ......... 16

STATUTES

Labor Management Relations Act,

29 USC. § 106................ siaegheatiaseia vesealineaalastae 7

Ee I inc csusicodtcdyiauniscansinaxnccacsens 13

vc anenciawenncneaninceavnceen 13

National Labor Relations Act,

| ee 8, 9, 12, 14

ne hassles cnaichlcn ddesmataewaeesiens passim

39 U.S. & iee (6) ..................... Sis cubbsiiescatbceiaee seine 9

EE cS a 14,17

alee alr ecucains aosetane 5,12

S| | >: mae ee 5, 15,17

er iiss cecaiccwnctecccaaesecs 5,12

is So | 0) Le 2 ee an ee 15-16

29 U.S.C. § 168 (b) (1) (B) ....................... TE 15

Vv

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIAL Page

S. Rep. No. 578, 74th Cong., Ist Sess. (1934),

reprinted in 2 Legislative History of the National

Labor Relations Act, 1986 .................................... 10

S. Rep. No. 1184, 74th Cong., 2d Sess. (19%4),

reprinted in 1 Legislative History of the National

Labor Relations Act, 1935 ......00000.000002 ee... ae 9-10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-687

WILLMAR ELECTRIC SERVICE, INC.,

i Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF AMICI CURIAE OF THE

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AND

NATIONAL ASSOCIATION OF MANUFACTURERS

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE PETITIONER

INTERESTS OF THE AMICI CURIAE?

The Chamber of Commerce of the United States of

America (“the Chamber’) is a federation consisting of

approximately 215,000 companies and several thousand

other organizations such as state and local chambers of

commerce and trade and professional organizations in the

United States. A significant aspect of the Chamber’s ac-

1This brief is filed with the written consent of the parties pur-

suant to Supreme Court Rule 37.2. Letters of consent are being

filed simultaneously with the Clerk of Court.

2

tivities is the representation of the interests of its member-

employers in employment and labor relations matters be-

fore the courts, the United States Congress, the Executive

Branch and independent regulatory agencies of the fed-

eral government.” The Chamber has sought to advance

the interests of its members by filing amicus curiae briefs

in a wide spectrum of labor relations litigation before

this Court.*

The National Association of Manufacturers of the

United States of America (“the NAM”) is a voluntary

business association of over 12,000 companies, employing

eighty-five percent of all manufacturing workers and

producing over eighty percent of the nation’s manufac-

tured goods. The NAM is affiliated with 158,000 addi-

tional businesses through its Associations Council and the

National Industrial Council. The NAM and these councils

provide information and other educational services and

publications to employers regarding employer-employee

relations and the laws and legislative proposals that per-

tain to them. Like the Chamber, the NAM actively rep-

resents the interests of its member employers in a wide

variety of labor and employment matters before the

2'The Chamber participated as an amicus curiae in oral argument

before the National Labor Relations Board in that body’s consider-

ation of the same issue presented in this case—whether paid union

organizers are protected emj >»yees under Section 2(3) of the Na-

ticnal Labor Relations Act. See Town & Country Electric, Inc., 309

NLRB No. 181 (1992); Sunland Construction Co., Inc., 309 NLRB

No. 180 (1992), both argued March 18, 1992.

3 See, e.g., Gilmer v. Interstate/Johnson Lane Corp., 111 S.Ct.

1647 (1991); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988); Fall River Dyeing & Finishing Corp. v. NLRB, 482

U.S. 27 (1987) ; Golden State Transit Corp. v. Los Angeles, 475 U.S.

608 (1986); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985);

Trans World Airlines v. Thurston, 469 U.S. 111 (1985); Regents of

the University of California v. Bakke, 438 U.S. 265 (1978); NLRB

v. Burns Int'l Security Services, 406 U.S. 272 (1972).

3

courts,* the United States Congress, the Executive Branch

and independent regulatory agencies of the federal gov-

ernment.

This case raises the important issue of whether an em-

ployer violates the National Labor Relations Act (“NLRA”

or the “Act”) by rejecting the employment application of

a full-time paid union organizer who applies for a job

with a company for the purpose of organizing that com-

pany’s employees on behalf of his union. The issue turns

on whether such an organizer is an “employee” as defined

by the NLRA, 29 U.S.C. § 152(3) (1988). If paid union

organizers are “employees” under the NLRA, then they

enjoy all of the protections of the Act, and the members

of the Chamber and the NAM must treat them as legiti-

mate job applicants and make the decision on whether to

hire them without regard to their status as union or-

ganizers. On the other hand, if such applicants are not

“employees” protected by the NLRA, then employers are

free to refuse to hire them.

A resolution of this issue is of vital concern to the

Chamber, the NAM, and their members, many of whom

are non-unionized companies that are receiving employ-

ment applications from paid union organizers whose pri-

mary interest in gaining employment is not to work for

the companies, but to organize their workforce for the

benefit of a union. These employers need to know whether

they must consider these paid union organizers as legiti-

mate job applicants or whether they may rightfully refuse

to hire these individuals.

Moreover, review by this Court is particularly neces-

sary to resolve a conflict among the circuit courts of ap-

peals on this issue. Compare Escada, Inc. v. NLRB, 970

F.2d 898 (3d Cir. 1992) (enforcing without opinion

* See, e.g., General Motors Corp. v. Romein, 112 S.Ct. 1105 (1992) ;

Teamsters v. Daniel, 439 U.S. 551 (1979); Gateway Coal Co. v.

United Mine Workers of America, 414 U.S. 368 (1974).

4

Board’s conclusion that paid union organizer is employee

under NLRA) and NLRB v. Henlopen Mfg. Co., Inc., 599

F.2d 26 (2d Cir. 1979) (holding paid union organizer to

be statutory employee) with H.B. Zachry Co. v. NLRB,

886 F.2d 70 (4th Cir. 1989) (holding paid union or-

ganizer is not statutory employee) and NLRB v. Elias

Bros. Big Boy, Inc., 327 F.2d 421 (6th Cir. 1964)

(same).

SUMMARY OF THE CASE

Petitioner, Willmar Electric Service, Inc. (“Willmar’’),

is an electrical contracting company that was awarded

a contract in the early summer of 1988 to perform elec-

trical work on a store under construction in Silverdale,

Washington. Pet. App. A17.° Michael Hendrix is a jour-

neyman electrician who took a leave of absence from an

electrical contractor in June of 1988 to become a full-

time paid union organizer for Local 46 of the Interna-

tional Brotherhood of Electrical Workers (“IBEW” or

“union’”’). 7d. at A18.

In late June, Hendrix asked Willmar officials to enter

into a collective bargaining agreement with the IBEW

for the project and, in July, sent Willmar a draft of one

of the union’s recently ratified contracts. Willmar re-

sponded that it was not interested in signing a contract

with the union, but was willing to receive applications

from IBEW electricians. 7d. at Al8. Throughout the re-

mainder of the year, and in his capacity as a paid union

organizer, Hendrix continued to press Willmar officials

to enter into a contract with the IBEW. Willmar con-

tinued to respond that it would not enter into such a

contract, but would accept applications from IBEW elec-

tricians. Jd. at Al0. On October 14, Hendrix hand de-

livered his completed job application to Willmar’s project

© Throughout this brief “Pet. App.” will be used to refer to the

Petitioner’s Appendix and “Pet. Br.” will be used to refer to the

Petitioner’s Brief.

5

foreman, Douglas Rose.* Hendrix’s application stated that

his present employer was the IBEW. Hendrix told Rose

that, if hired, Hendrix intended to continue his organiz-

ing efforts on behalf of the IBEW at Willmar.’ Jd. at

A3.

After submitting his application, Hendrix continued

his organizing activities at Willmar. As part of his

IBEW duties, Hendrix organized and participated di-

rectly in a picket line in front of the Willmar job site.®

Id. at A22-23. On December 30, 1992, Hendrix called Rose

to inquire about his job application. Rose admitted that

he had not taken Hendrix’s application seriously, and that

Willmar was not interested in hiring a full-time union

organizer. As Rose observed, “it’s kind of hard to hire

you when you’re out there on the other side, picketing.”

Id. at A25.

Hendrix responded by filing unfair labor practice

charges with the NLRB against Willmar, claiming that

Willmar’s refusal to hire him because of his union organ-

izing activities violated Sections 8(a)(1) and 8(a) (3)

of the NLRA, 29 U.S.C. §§ 158(a) (1) and (3) (1988).

Id. at A9. The Board found in favor of Hendrix. In

doing so, the Board adhered to its view from prior cases

that full-time paid union organizers are “employees” pro-

tected by the NLRA and that an employer who refused

* Hendrix’s application contained two dates: September 28, the

date on which he began filling out the employment application, and

October” 10, the date he completed the application. Pet. App. A21

n.b.

7 Hendrix later stated that “obtain[ing] employment .. . to

carry out .. . field organizing responsibilities” is ‘normal activity

for field organizers.” Pet. App. All. Hendrix claimed that his

organizing activities would be limited to his “free time” during

lunch and after work. Pet. App. A8, A26.

® This picketing was preceded by a letter from Hendrix, signed

in his capacity as union field organizer and written on union sta-

tionery, warning Willmar that such picketing would commence due

to Willmar’s allegedly substandard wages. Pet. App. A23.

6

to hire such an “employee” because of his union position

violated the NLRA. 7d. at All-12. The D.C. Circuit en-

forced the Board’s decision, declaring the Board’s con-

struction of the definition of “employee” to be “reason-

able’ in light of common law principles of agency and

the apparent absence of a clear and contrary congres-

sional indication. Willmar Electric Service, Inc. v. NLRB,

968 F.2d 1327, 1330-31 (D.C. Cir. 1992).

REASONS FOR GRANTING THE PETITION

FOR A WRIT OF CERTIORARI

As explained by Willmar in its Petition, the D.C. Cir-

cuit’s construction of the term “employee” as including

paid union organizers who must be considered by an

employer for employment is in direct conflict with the

conclusions reached by both the Fourth and the Sixth

Circuits. See Pet. Br. 8-13. The amici submit that the

uncertainty created for employers and unions alike by

this split of opinions is, by itself, powerful reason for

this Court to grant the Petition.

We will not reiterate Petitioner’s other arguments to

support grant of the Petition. Rather, the amici demon-

strate below that the D.C. Circuit’s inclusion of paid

union operatives in the Act’s definition of the term “em-

ployee” is contrary to both (1) the plain meaning of the

NLRA and (2) to the policies underlying that Act. Ac-

cordingly, we respectfully submit that the Court should

grant the Petition and issue a writ of certiorari to re-

verse the decision below.

I. PAID UNION ORGANIZERS ARE NOT “EMPLOY-

EES” UNDER THE LANGUAGE OF SECTION 2(3)

OF THE ACT.

In approaching the question of whether paid union

organizers are protected employees * under Section 2(3)

®The Board announced its position on the employee status of

paid union organizers in a footnote that it candidly described as

7

of the NLRA, the D.C. Circuit correctly observed that its

analysis should begin with the question of whether Con-

gress had clearly resolved the issue so as to prohibit the

courts and the Board from concluding that they were

“employees.” Chevron U.S.A., Ine. v. Natural Resources

Defense Council, 467 U.S. 887, 842-43 (1984). Having

made this observation, however, the court ignored this in-

itial step by inexplicably failing to analyze the terms of

the NLRA itself. Instead, the court relied on an analy-

sis of § 302 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 186 (1988), and on common law

principles of agency, and erroneously concluded that the

Board’s interpretation of the NLRA definition of “em-

ployee” to include paid union organizers was a reasonable

one.*° As we show below, had the court considered the

dictum in Sears, Roebuck and Co., 170 NLRB 533, 535 n.3 (1968),

stating “[a]s long as the employee gives a full day’s work to his

‘regular’ employer, the fact that he renders services in other hours

to the Union does not affect his employee status, whether such

latter services are paid or not.” In Dee Knitting Mills, Inc., 214

NLRB 1041 (1974), enf’d, 588 F.2d 312 (2d Cir. 1975) (unpub-

lished opinion), and Oak Apparel, Inc., 218 NLRB 701 (1975),

the Board developed this dictum into a definitional imperative,

finding paid union organizers to be protected “employees” under

Section 2(3) even if they were working for an employer for the

express purpose of organizing that employer’s employees. The Board

has adhered to this interpretation, see Pilliod of Mississippi, Inc.,

275 NLRB 799 (1985); Palby Lingerie, 252 NLRB 176 (1980);

Margaret Anzalone, Inc., 242 NLRB 879 (1979); Henlopen Mfg.

Co., 235 NLRB 183 (1978), enf. denied on other grounds, 599 F.2d

26 (2d Cir. 1979) ; Anthony Forest Products, 231 NLRB 976 (1977),

and, in light of this Court’s decision in Phelps Dodge Corp. v.

NLRB, 313 U.S. 717 (1941), has extended it to include paid union

organizers who apply for work to organize an employer. H.B. Zachry

Co., 289 NLRB 838 (1988) enf. denied 886 F.2d 70 (4th Cir. 1989).

See also Town & Country Electric, Inc., 309 NLRB No. 181 (1992) ;

Sunland Construction Co., Inc., 309 NLRB No. 180 (1992); Winde-

muller Electric, Inc., 306 NLRB No. 125 (1992); Escada (USA),

Inc., 304 NLRB No. 109 (1991), enf’d without opinion, 970 F.2d

898 (3d Cir. 1992).

10 Chevron dictates that, in the absence of a clear resolution of an

issue by Congress, the reviewing court should defer to the agency’s

8

terms of the NLRA, it would have discovered that Con-

gress had clearly resolved this issue by expressly exclud-

ing paid union organizers from the definition of ‘“em-

ployee.” 29 U.S.C. § 152(3) (1988).

Section 2 of the NLRA defines, inter alia, the terms

“employer,” “employee” and “labor organization.” Each

entity is recognized as distinct and apart from the others

by the language of the definitions. In Section 2(2) of

the Act, the term “employer”

includes any person acting as an agent of an em-

ployer, directly or indirectly, but shall not include the

United States or any wholly owned Government cor-

poration, or any Federal Reserve Bank, or any State

or political subdivision thereof, or any person subject

to the Railway Labor Act, as amended from time to

time, or any labor organization (other than when

acting as an employer), or anyone acting in the

capacity of officer or agent of such organization.

29 U.S.C. § 152(2) (1988) (emphasis added).

The definition of “employee” is set out in Section 2(3)

and states

the term “employee” shall include any employee, and

shall not be limited to the employees of a par-

ticular employer, unless the Act explicitly states other-

wise ... but shall not include any individual employed

as an agricultural laborer, or in the domestic service

interpretation of the statute, if it constitutes a reasonable one.

Chevron, 467 U.S. at 842-43. The D.C. Circuit also observed that

under this Court’s decision in Nationwide Mutual Insurance Co. v.

Darden, 112 S.Ct. 1344 (1992), absent a clear congressional indi-

cation to the contrary, the term “employee” should be taken to have

its common law meaning. As demonstrated in this Section, Con-

gress clearly excluded union organizers from the definition of ‘“em-

ployee” by the terms of the NLRA. Even had Congress not done

so, we show in Section II, infra, that the common law, interpreted

in light of the relationship of employers and unions codified in the

NLRA, does not support the conclusion that paid union organizers

are employees when they seek to organize another employer.

9

of any individual employed by his parent or spouse,

or any individual having the status of an independent

contractor, or any individual employed as a super-

visor, or any individual employed by an employer

subject to the Railway Labor Act, as amended from

time to time, or by any other person who is not an

employer as herein defined.

29 U.S.C. § 152(8) (1988) (emphasis added) .”

As the foregoing makes clear, the definitions of these

terms are interrelated and refer to each other. While the

term “employee” is defined broadly, the term expressly

excludes anyone who is employed “by any other person

who is not an employer” as defined by the Act. Similarly,

although the term “employer” is broad, it contains a

number of exclusions, including one for a “labor organiza-

tion.” Through these two interrelated exclusions, Congress

has spoken: individuals who are paid employees of a labor

organization—including paid union organizers—are not

“employees” under the NLRA.

In Section 2(2), Congress did add a parenthetical phrase

stating that a union is an employer when it is “acting

as an employer.” That phrase, however, confirms the con-

clusion that a union’s agents are not “employees” when

dealing with another employer, like Willmar. Indeed, this

parenthetical statement was added for the limited pur-

pose of subjecting labor organizations to the strictures of

the NLRA in their treatment of their own employees.

See S. Rep. No. 1184, 74th Cong., 2d Sess. 4 (1934),

11 Section 2(5) defines a “labor organization” as

any organization of any kind, or any agency or employee repre-

sentation committee or plan, in which employees participate and

which exists for the purpose, in whole or in part, of dealing

with employers concerning grievances, labor disputes, wages,

rates of pay, hours of employment, or conditions of work.

29 U.S.C. § 152(5) (1988). While the Act defines a labor organi-

zation as comprised of employee-members, as this Court has empha-

sized, a labor organization has an identity distinct from that of its

constituents. Lechmere, Inc. v. NLRB, 112 S.Ct. 841, 848 (1992).

10

reprinted in 1 Legislative History of the National Labor

Relations Act, 1935, 1099, 1102 (stating that “[i]n its

relations with its own employees, a labor organization

ought to be treated as an employer, and the bill so

provides.”). See also Office Employees Int’l Union, Local

11 v. NLRB, 358 U.S. 313, 316 (1957) (holding Team-

sters to be employer liable for unfair labor practices in

interferring with right of its clerical employees to or-

ganize themselves). Congress understood that any broad-

er application of “employer” status to labor organiza-

tions would “deprive unions of one of their normal func-

tions”, namely, organizing other employees. S. Rep. No.

578, 74th Cong., 1st Sess. 6 (1934), reprinted in 2 Legis-

lative History of the National Labor Relations Act, 1935,

2300, 2305. See also 8. Rep. No. 1184, 74th Cong., 2d

Sess. 4 (1934), reprinted in 1 Legislative History of the

National Labor Relations Act, 19385, 1099, 1102 (dis-

tinguishing between a union’s relation with its “clerks,

secretaries and the like” and its actions as an advocate

of unionization). Thus, Congress drew a sharp distinction

between the union in its relationship with its own em-

ployees regarding their own wages, hours, and terms and

conditions of employment and the union’s organizing

activities of other employers. The union, in short, was to

be an “employer” only in the limited context of its rela-

tions with its own employees. Paid agents of labor or-

ganizations were intended to be statutory “employees”

only when dealing with their own employer, the union,

not when dealing with some other employer.”

12 The NLRB, in its most recent statement on the “employee”

status of paid union organizers, asserted that it was “immaterial”

to its analysis whether a union is a statutory employer because the

paid union organizer draws his “employee” status from his at-

tempted employment with the targeted employer. Town & Country

Electric, Inc., supra note 2, 309 NLRB No. 181, slip op. at 18, n.36;

Sunland Construction Co., Inc., supra note 2, 309 NLRB No. 180,

slip op. at 15, n.387. The Board analogized the union organizer to

an agricultural or government worker (neither of whom is an “em-

ployee” under Section 2(3) of the Act) who seeks work with an

11

It is clear, in light of these definitions, that Hendrix

Was not a statutory employee when he sought a job with

Willmar to organize its workforce. When a paid union

organizer, like Hendrix, applies for work in order to

organize an employer, and is paid by his union to do So,

he is carrying out duties as a union agent that bring him

vutside the ambit of protections provided to “employees”

under the NLRA. Lacking “employee” status, Hendrix,

like any other non-employee, could be rejected or dismissed

by any employer without violating the NLRA." In this

respect, a paid union organizer like Hendrix is similar to

a company supervisor who is also excluded from the defini-

tion of “employee” under Section 2(3) of the Act, and

who may be discharged because of his union activities or

sympathies. See, e.g., Parker-Robb Chevrolet, 262 NLRB

402 (1982), review denied sub nom. Auto Salesmen’s

Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983).

“employer covered by the NLRA” and thus becomes an “employee”

vis-a-vis that new employer. The Board’s summary conclusion, how-

ever, simply does not take account of the policies underlying the

NLRA or of the facts of the cases under consideration. Thus, as

a matter of fact, and unlike the typical agricultural or federal

employee seeking a second job, a paid union organizer like Hendrix

applies for a job with a targeted employer like Willmar in further-

ance of his job as a union organizer. See supra note 7, and infra

note 18. Indeed the NLRB, itseif, recognized that paid union or-

ganizers (unlike agricultural or government employees) can be

presumed to owe their primary allegiance to the union. Sunland,

supra, slip op. at 17, n.41. Furthermore, as discussed in Section IT,

infra, as a matter of NLRA policy, Congress has struck a delicate

balance between employers, unions and employees. This balance is

destroyed when employees of labor organizations who apply for

work in order to further their union’s organizational objectives are

deemed indistinguishable from any employee who seeks a second

job.

8 Cf. Fort Smith Chair Co., 143 NLRB 514, 518 (1963), aff’d on

other grounds, 336 F.2d 738 (D.C. Cir. 1964) (loss of “employee”

status under the NLRA means loss of the Act’s protection and an

employer’s motive for discharging those who have forfeited this

status—including its otherwise unlawful desire to rid itself of the

employees’ union—is immaterial).

iil

12

The D.C. Circuit failed to confront the clear statutory

exclusion of paid union operatives from “employee” status

by operation of Sections 2(2) and 2(8) of the NLRA.

In failing to comprehend the exclusion of labor organiza-

tions from the statutory definition of “employer,” the

circuit court ratified the NLRB’s mistaken focus on the

otherwise broad definition of “employee” in Section 2(3),

and its mistaken conclusion that the employment of such

individuals by the union to organize an employer is im-

material to his statutory “employee” status. See notes 9

and 12, supra, and cases discussed therein. Given that

mistaken analysis, the court improperly concluded that an

employer who flatly refused to hire a paid union orga-

nizer (a protected “employee” in the court’s view) vio-

lated Section 8(a)(1) and (3) of the NLRA. 29 U.S.C.

§ 158(a) (1) and (3).

In light of the foregoing, the D.C. Circuit’s analysis

and conclusions are simply at odds with the language of

the NLRA and this Court should grant the petition for a

Writ of Certiorari to correct the court’s error.

II. THE D.C. CIRCUIT FAILED TO EXAMINE THE

STRUCTURE OF THE NATIONAL LABOR RELA-

TIONS ACT AND ITS ANIMATING POLICIES AND

THUS FAILED TO APPREHEND THAT THE

BOARD’S INCLUSION OF PAID UNION ORGAN-

IZERS IN THE DEFINITION OF “EMPLOYEE”

WAS AN UNREASONABLE INTERPRETATION OF

THE ACT.

As demonstrated in Section I, the D.C. Circuit failed to

apprehend the express exclusion of paid union agents

from the NLRA definition of employee by the terms of

the Act itself. Even absent this express language, how-

ever, the D.C. Circuit understood that this exclusion

could be supported on the “grounds of some implication

from the structure of the Act.” '* Willmar, 968 F.2d at

14This Court has recognized that the failure of Congress to

expressly exclude a category of employees from § 2(3) is not, with-

18

1329. Having made this observation, the D.C. Circuit

proceeded to ignore the structure of the NLRA and its

policies and thus erroneously concluded that paid union

organizers were “employees” under the NLRA. Instead,

the court simply concluded that one person could work for

both a union and an employer at the same time and that,

to the extent that the individual worked for the employer,

that person was a protected “employee” as defined by the

Act. In support of this conclusion, the court relied upon

Section 302(c) (1) of the Labor Management Relations

Act, 29 U.S.C. § 186(c) (1), as evidence that Congress

had recognized that one could be employed concurrently

by both a union and a company." Since the court failed

to consider the underlying structure and policies of the .

NLRA, however, it failed to appreciate the difference be-

tween Section 302, which allows an employer to employ a

union official if it wishes to do so, and the NLRB decision

before it which required the employer to employ the paid

union organizer.'®

out more, determinative of their status under the Act. NLRB v.

Bell Aerospace, 416 U.S. 267, 283 n.13 (1974) (holding managers

to be excluded from the NLRA definition of “employee”’).

15 Section 302 restricts payments that can legally be made to

employee representatives. Section 302(c)(1) excludes from this

restriction

any money or thing of value payable by an employer to any of

his employees whose established duties include acting openly for

such employer in matters of labor relations or personnel ad-

ministration or to any representative of his employees, or to

any officer or employee of a labor organization, who is also an

employee .. . of such employer, as compensation for, or by

reason of his service as an employee of such employer.

29 U.S.C. § 186(c)(1) (1988) (emphasis added).

1©The court’s logic in this regard is no more persuasive than

that of the Board, rejected by this Court in Allied Chemical Workers

v. Pittsburgh Plate Glass, 404 U.S. 157, 170-171 (1971), that re-

tirees are “employees” under the NLRA because of their employee

status under § 802(c)(5) of the LMRA. 29 U.S.C. § 186(c) (5)

(1988). As stated in note 15, supra, Section 302 generally pro-

lsdeneteainenelieetiaeeiadinieeaiieenieaetniaaitiaciesilll

14

In concluding that paid union organizers were employees

under the NLRA, the D.C. Circuit also purported to apply

the presumption articulated in Nationwide Mutual In-

surance Co, v. Darden, 112 S.Ct. 1844 (1992), that the

term “employee” should be construed according to com-

mon law principles absent a clear Congressional indication

to the contrary. As amici have demonstrated, the D.C.

Circuit failed to recognize the clear exclusion of paid

union organizers from the definition of “employee” by the

operation of Sections 2(2) and 2(8) of the Act. Further-

more, as shown below, the structure of the NLRA and its

animating policies indicate that Congress meant to ex-

clude union organizers from the class of persons pro-

tected by the Act, a factor which renders the D.C. Cir-

cuit’s common law analysis irrelevant.

Even a cursory analysis of the structure of the NLRA

shows why the D.C. Circuit was wrong in this case. By

design, employers, unions, and employees constitute three

distinct groups under the NLRA. The major emphasis

of the Act is to protect the rights of employees by keeping

employee interests distinct from those of employers and

of unions. Lechmere, Inc. v. NLRB, 112 S.Ct. 841, 848

(1992). The paramount employee right under the NLRA

hibits payments by employers to unions or union officials. Section

302(c)(5) provides an exemption for payments to an employee

trust fund established for the sole and exclusive benefit of the em-

ployees of such employer. The Section had been construed to include

retirees in Blassie v. Kroger Co., 345 F.2d 58, 70 (8th Cir. 1965).

This Court found the Board’s Section 302 analysis wanting:

There is no anomaly in the conclusion that retired workers are

“employees” within § 302(c)(5) entitled to the benefits nego-

tiated while they were active employees, but not “employees”

whose ongoing benefits are embraced by the bargaining obliga-

tion of § 8(a) (5).

Id. at 170. In Pittsburgh Plate Glass, § 302 was no indication that

retirees were “employees” under the NLRA, and in this case LMRA

§ 302(c)(1) is no indication that Congress intended paid union

organizers to be “employees” that an employer was required to

consider for hire without regard for that status.

15

is the Section 7 right to form, join or assist labor organi-

zations or to refrain from doing so. 29 U.S.C. § 157

(1988). Unions and employers have the right to convince

employees legitimately that they either should or should

not support a union, but neither has the right to make

that decision for employees. Lechmere, 112 S.Ct. at 849.

Recognizing that employee interests are best served by

independent persuasion from labor and management, Con-

gress carefully separated unions and employers from each

other and designed the NLRA to keep either from inter-

fering with the independence of the other. There are

numerous examples of the independent, and at times ad-

versary, roles that are delineated for employers and

unions under the NLRA.

A first principle of the NLRA is that labor and manage-

ment may not dictate who shall be the collective bargain-

ing agents of the other. See generally, General Electric

Co. v. NLRB, 412 F.2d 512, 516-17 (D.C. Cir. 1969)

(discussing fundamental right of both employers and em-

ployees to choose their own bargaining representatives).

Consistent with this principle, the NLRA prohibits an

employer from interfering “with the formation or ad-

ministration of any labor organization.” 29 U.S.C.

§ 158(a) (2) (1988). An employer violates that section

of the Act if its managers and supervisors play a mean-

ingful role in the selection of a union as the employees’

bargaining representative. Machinists v. NLRB, 311 U.S.

72, 79-80 (1940); H.J. Heinz Co. v. NLRB, 811 U.S. 514,

519-20 (1940). Similarly, the Act prohibits a labor or-

ganization from restraining management in the selection

of its representatives. 29 U.S.C. § 158(b) (1) (B) (1988).

NLRB v. Electrical Workers, 481 U.S. 578 (1987); NLRB

v. Amax Coal Co., 458 U.S. 322, 384-385 (1981).

Further evidence of the independent and distinct roles

occupied by employers and unions under the Act is that

ne union is required to bargain with an employer about

the union’s rules of membership, 29 U.S.C. § 158(b) (1)

16

(A) (proviso); Betra Mfg. Co., 2833 NLRB 1126, 1135

(1977), enf’d, 624 F.2d 192 (9th Cir. 1980), cert. denied

sub nom. Thomas v. NLRB, 450 U.S. 996 (1981); NLRB

v. Corsicana Cotton Mills, 178 F.2d 344 (5th Cir. 1949),

or about how the union runs its affairs. NLRB v. Superior

Fireproof Door & Sash Co., 289 F.2d 713, 720 (2d Cir.

1961) ; Zayre Dep’t Stores, 289 NLRB 1183, 1186 (1988).

By the same token, management is not required to bargain

with a union about the individuals the employer hires,

Star Tribune, 295 NLRB 548, 547-48 (1989); United

Technologies Corp., 274 NLRB 1069, 1070 (1985), enf’d,

789 F.2d 121 (2d Cir. 1986), or about the employer’s

basic decisions on how it will run its business. First

National Maintenance Corp. v. NLRB, 452 U.S. 666

(1981). See also Dubuque Packing Co., Inc., 303 NLRB

No. 66 (1991).

The NLRA has been construed to allow an employer to

discharge its managers and supervisors who support union

representation. E.g., Parker-Robb Chevrolet, 262 NLRB

402 (1982), review denied sub nom. Auto Salesmen’s Local

1095 v. NLRB, 711 F.2d 3838 (D.C. Cir. 1983). Similarly,

a union may expel its members who aid management by

working during a strike. Scofield v. NLRB, 394 U.S. 423,

430 (1969).

Furthermore, an employer may permit its managers

and supervisors to join a union, but it is not required by

the Act to do so. NLRB v. News Syndicate Co., 365 U.S.

695, 699 n.2 (1961). By the same token, a union is not

required to accept any management representative into

it ranks, although it may do so voluntarily. Jd. See also

Sakrete of N. Cal., Inc. v. NLRB, 332 F.2d 902, 908 (9th

Cir. 1964), cert. denied, 379 U.S. 961 (1965).

Finally, by way of example, managers or supervisors

of an employer may not vote in an NLRB election to

determine whether employees will become represented by

a union. See, e.g., Canonie Transportation Co., 289 NLRB

299, 300 (1988); E.J. DuPont de Nemours & Co., Inc.,

17

210 NLRB 395, 396-97 (1974). And, the Board generally

excludes paid union organizers from voting as well. See,

€.g., 299 Lincoln Street, Inc., 292 NLRB 172, 180 (1988) ;

Multimatic Products, 288 NLRB 1279, 1816 (1988).

Given the foregoing examples, it is inconceivable that

Congress could have intended that employers would be

required to hire full-time union organizers. Indeed, it is

apparent that the contrary conclusion of the D.C. Circuit

in this case is in direct conflict with core principles of the

NLRA.

Just last term, this Court reiterated that union or-

ganizers could not use the Section 7 rights of the employees

they sought to organize to excuse their trespass onto an

employer’s property. Lechmere, 112 S.Ct. at 848. None-

theless, the D.C. Circuit has concluded that the union can

assume the rights of employees by the simple expedient

of directing its paid agents to apply for employment with

a non-unionized company. But this dispatch of its agents

to the employer’s work site, employment applications in

hand, no more changes the character of the union’s rights

than if an employer sent its supervisors to apply for a job

with a union and thereby attempted to vest them with

“employee” status for the purpose of advancing the em-

ployer’s opposition to unionization from within the union.

Neither the union nor the employer should be permitted

to gain “employee” status for its paid agents through

such stratagems.

Moreover, as the Fourth Circuit recognized in the

Zachry case, the requirement that an employer accept

into its ranks paid union organizers, particularly during

a representation campaign, effectively requires the em-

ployer to subsidize the organizational activities of the

union that, by statute, it may oppose. Zachry, 886 F.2d

at 75. Indeed, Congress, in Section 8(a) (2) of the Act,

29 U.S.C. § 158(a) (2), sought to maintain the inde-

pendence of unions for the benefit of employees by pro-

hibiting employers from funding their efforts. As the

Zachry court observed,

Ee

1s

Because the salary paid such “employees” by the com-

pany would partially relieve the union of its obliga-

tion to pay its own organizers, this tactic ironically

could be construed to compel employers to subsidize

labor organizations in violation of section 8(a) (2)

. . . It is difficult to imagine a scenario more slanted

to one side’s advantage.

Id. at 75. The D.C. Circuit cursorily dismissed this con-

cern, stating that Section 8(a) (2) was not violated “so

long as Willmar gets a day’s work for a day’s pay out of

Hendrix.” Willmar, 968 F.2d at 1829 n.l. Such an

assertion, however, ignores the fact, recognized by the

Fourth Circuit, that the employer’s payments to the

union’s professional organizer relieved the union of the

burden of paying him without any real loss of his serv-

ices.'" In the realm of organizing, most employers and

unions are adversaries—competitors for the sympathies

of the employees. No competitor should be required to

subsidize the competition. Yet, the decision of the D.C.

Circuit ignores logic and the very fabric of the NLRA

by requiring such an untoward result.

In sum, the definitions set forth in the Act and the

basic structure of the Act clearly support the conclusion

that paid union organizers are not protected “employ-

ees.” In light of this conclusion, there was no reason for

the D.C. Cireuit ever to consider the common law mean-

ing of the term “employee.” Furthermore, the court’s

common law analysis can be faulted because the court

defined the term “employee” without regard for the

NLRA’s policies and structure.

The D.C. Cireuit began by correctly observing that an

individual could be “ ‘the servant of two masters, not

17In this sense Hendrix is clearly different than the zealous

volunteer that the D.C. Circuit perceived as largely “indistinguish-

able” from the paid organizer. The services of the zealous volunteer

would always be available to the union without any monetary outlay.

By contrast, Hendrix’s presumably professional organizing services

were only available for a price.

19

joint employers, at one time as to one act if the service

to one does not involve abandonment of the service to the

other.’” Willmar, 968 F.2d at 1329-30 quoting, Restate-

ment (Second) of Agency § 226 (1958) (other citations

omitted). The court then declared that “[u]ntil such

time as an employee ‘abandons’ the non-union employer

for the union employer, it is hard to see why he should

be denied the protection of the Act.” Jd. at 1330. That

conclusion ignores the adversarial relationship between

employers and unions codified by the NLRA and dem-

onstrated in its underlying policies. As this Court has

recognized, the structure of the NLRA demonstrates that

unions and employers are essentially “separate factions

in warring camps.” NLRB v. Bell Aerospace Co., 416

U.S. 267, 278 (1974), quoting Packard Motor Car Co.

v. NLRB, 330 U.S. 485, 494 (1947). As such, a paid

union organizer’s organizing activities on behalf of the

union could be construed as nothing less than an “aban-

donment” of the non-union employer in favor of service

to the union. Thus, even under the D.C. Circuit’s state-

ment of the common law definition of the term, Hendrix

could not reasonably be deemed an “employee” of both

Willmar and the IBEW at the same time.

Finally, a determination that a paid union organizer

like Michael Hendrix is not an “employee” under the

NLRA will not chill the rights of bona fide employees to

form, join and assist labor organizations.’ Bona fide

employees, who have a stake in the employer’s enterprise,

and who will endure the consequences of whatever union

18 Indeed, Hendrix’s lack of interest in a true employment rela-

tionship with Willmar is apparent. Hendrix was on a leave of

absence from another employer in order to be a full-time paid union

organizer when he applied for a job with Willmar. He took over

two weeks to fill out and deliver his employment application to

Willmar’s foreman, Mr. Rose, and was fully employed as an IBEW

organizer when he submitted the application. Finally, prior to

applying for a position with Willmar, Hendrix had organized and

actively participated in picketing of Willmar’s job site in protest of

Willmar’s allegedly substandard wages.

20

choice is ultimately made by the employee group, will still

enjoy all of the rights afforded them under the NLRA.

Unions will still be able to appeal to employees within

the broad parameters permitted by the Act. Unions will

simply not be able to require employers to effectively sub-

sidize this appeal by the forced employment of profes-

sional organizers like Hendrix who have no interest in

being employed by the employer except as a vehicle to

serve the purposes of the union.

In sum, the conclusion of the D.C. Circuit that paid

union organizers are “employees” who must be employed

by employers without regard to their status as union

organizers is inconsistent with the language of the NLRA,

and is inconsistent with the policies and purposes which

the Act seeks to foster.

CONCLUSION

For the foregoing reasons, the Chamber and the NAM

urge the Court to grant the Petition for a Writ of Cer-

tiorari to the U.S. Court of Appeals for the District of

Columbia Circuit.

Respectfully submitted,

Of Counsel:

STEPHEN A. BOKAT

ROBIN S. CONRAD

MONA C. ZEIBERG

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

JAN AMUNDSON

QUENTIN RIEGEL

NATIONAL ASSOCIATION OF

MANUFACTURERS OF THE

UNITED STATES

1331 Pennsylvania Ave., N.W.

Suite 1500-North Lobby

Washington, D.C. 20004

(202) 637-3000

Date: January 21, 1993

PETER G. NASH *

MARSHALL B. BABSON

ELIZABETH I. TORPHY-DONZELLA

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART

2400 N Street, N.W.

Fifth Floor

Washington, D.C. 20037

(202) 887-0855

Counsel for the Chamber of

Commerce of the

United States of America and

for the National Association of

Manufacturers of the United

States of America

Amici Curiae

* Counsel of Record