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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 909

## Text

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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 : 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1499%3A4. Public record. Not legal advice.