Opposition Brief — J. R. Simplot Co. v. National Labor Relations Board

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| JAN 18 1995 (

No. 94-908 |

4 OAGE OF THE OLENA |

a In the Supreme Court of the United Se

# OcTOBER TERM, 1994

J. R. SIMPLOT COMPANY, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

DREw S. Days, III

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

4 FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether substantial evidence supports the finding of

the National Labor Relations Board that there was a

sufficient continuity of operations and of employees

between petitioner’s old plant and its new plant to

warrant requiring petitioner to continue to recognize

the union which represented the employees at the old

plant as the representative of the workforce at the new

plant.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

American Fluorescent Corp., 275 N.L.R.B. 1097 (1985)... 14, 15

Harte & Co., 278 N.L.R.B. 947 (1986) oooceccccccccccceece. 5, 9, 10, 12

Hudson Berlind Corp., 203 N.L.R.B. 421 (1973),

enforced, 494 F.2d 1200 (2d Cir.), cert. denied,

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Lammert Industries v. NLRB, 578 F.2d 1223 (7th Cir.

a a aia diads aa bcnddpseciuensidevseuneradensaseoees 9

NLRB vy. Hudson Berlind Corp., 494 F.2d 1200 (2d Cir.),

cert. denied, 419 U.S. 897 (1974) wu... cecccccccccescesee. 12

NLRB v. Marine Optical, Inc., 671 F.2d 11 (1st Cir.

Eat tall cide Sicananadassbspavedexateiacteinrsessadereceocene 9

NLRB vy. Massachusetts Machine & Stamping, Inc.,

kp i 26 as). 14,15

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

| | EA Md edt dhchikattahontintioncteioddenivainkenaetin 10, 14

Statutes:

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

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(III)

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1994

No. 94-908

J. R. SIMPLOT COMPANY, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-5) is

unpublished, but the decision is noted at 33 F.3d 58

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

Relations Board (Pet. App. 6-8), including the decision of

the administrative law judge (Pet. App. 9-84), is reported

at 311 N.L.R.B. 572.

JURISDICTION

The judgment of the court of appeals was entered on

August 24, 1994. The petition for a writ of certiorari was

filed on November 17, 1994. The jurisdiction of this

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

(1)

¢

Ee

STATEMENT

1. Petitioner operates food processing plants and

related trucking businesses in several States, including

the State of Washington. Pet. App. 23. In May 1989,

petitioner was operating two plants in Washington: One,

located in Wenatchee, was a year-round facility, which

“prime packed” and “repacked” vegetables; the other,

located in Ferndale, was a seasonal facility, which

“prime packed” vegetables. Jd. at 24.’ At the Wenatchee

plant, petitioner employed a core group of production and

maintenance workers on a year-round basis, and hired

additional seasonal employees for the harvest season,

which generally ran from June 1 through September 30.

Id. at 24, 26-27. At the Ferndale plant, petitioner

maintained only a seasonal workforce, as its operations

there were limited to the harvest season. /d. at 30 n.34,

35. Petitioner had historically recognized Local 760 of

the International Brotherhood of Teamsters (the Union)

as the collective-bargaining representative of the Wen-

atchee employees, and had executed a labor contract with

the Union effective through April 30, 1990. Jd. at 10, 24.

The Ferndale employees were represented by a different

Teamsters local. /bid.

In May 1989, petitioner decided that, beginning with

the 1990 harvest season, its Wenatchee and Ferndale

operations would be centralized at a new facility, to be

built in Quincey, Washington, some 30 miles from

1

“Prime packing” involves processing, freezing, and ware-

housing fresh produce in bulk storage containers during the

harvest season. “Repacking” involves removing “prime packed”

produce from bulk warehouse storage and repackaging it for

shipment in customer-specified containers. “Repacking” opera-

tions are performed primarily outside of the harvest season. Pet.

App. 24-26.

3

Wenatchee and 210 miles from Ferndale. Pet. App. 8, 19

n.17, 24, 28. Petitioner closed the Ferndale plant at the

end of the 1989 harvest season. Z/d. at 35. Then, in

January 1990, having determined that a substantial

number of Wenatchee employees (the only nearby, large-

scale source of experienced personnel) would transfer to

the Quincy plant, petitioner informed the Wenatchee

employees that, when the Quincy plant opened for

business, it would be run on a non-union basis. /d. at 38,

40. Petitioner thereupon unilaterally established pay

classifications and benefit programs for the Quincy plant

without bargaining with the Union. /d. at 18, 38. On

February 138, 1990, petitioner refused the Union’s

request for recognition as the representative of the

employees to be hired at the Quincy plant. Jd. at 37 &

n.42.

In mid-April 1990, petitioner recruited Wenatchee

employees to fill the 150 to 200 year-round positions that

petitioner projected it would need to staff the Quincy

facility. Pet. App. 40-41. Of the Wenatchee plant’s

approximately 177 year-round employees, between 150

and 160 applied for work at the Quincy plant, virtually all

of whom were hired. /d. at 42-43. Because of the distance

between the Ferndale plant and the Quincy plant (210

miles), petitioner did not regard the pool of former

Ferndale employees as a likely source of personnel for

the Quincy plant, and, in fact, former Ferndale em-

ployees ultimately constituted an insubstantial per-

centage of the Quincy workforce. /d. at 41 n.46, 69 n.82.

Petitioner closed the Wenatchee plant on April 30,

1990, the date on which the labor contract covering that

facility expired. Pet. App. 18. Petitioner commenced

operations at the Quincy plant on or about May 1,

gradually phasing in former Wenatchee employees, along

A

with new hires. /d. at 51. Former Wenatchee employees

at all times constituted a majority of the employees at

the Quincy plant, except during the peak of the harvest

season, which lasted from August 1 to September 30. /d.

at 51-52, 70.° After the peak of the harvest season, the

Quiney workforce shrunk to a core complement of 170 to

180 year-round employees, the majority of whom had

transferred from Wenatchee. /d. at 52.

2. The General Counsel of the National Labor

Relations Board (Board) issued an unfair labor practice

complaint against petitioner. He alleged, inter alia, that

petitioner violated Section 8(a)(5) and (1) of the National

Labor Relations Act (Act), 29 U.S.C. 158(a)(5) and (1), by

refusing to recognize the Union as the bargaining repre-

sentative of the Quincy employees, and by refusing to

apply the terms of the expired Wenatchee labor contract

to cover the Quincy plant. Pet. App. 12 & n.8.

a. After a hearing, the administrative law judge (ALJ)

found that petitioner had violated the Act as alleged.

Pet. App. 77. Initially, the ALJ noted that petitioner and

ihe General Counsel were in disagreement as to the

proper “label[]” to describe the relationship among the

plants. Jd. at 63. But, whether the Quincy plant was

2 On May 1, 1990, the Quincy workforce consisted of 55

Wenatchee transferees and 12 new hires (Pet. App. 45); by May 15,

the workforce had grown to 113 employees, 81 of whom were

Wenatchee transferees, and 32 of whom were new hires. Jdid. On

May 25, petitioner held a “grand opening” ceremony at the Quincy

plant; six days later, on May 31, the workforce consisted of 139

employees, 84 of whom were Wenatchee transferees, and 55 of

whom were new hires. /d. at 45, 47. During the peak of the

harvest season (August 1 through September 30) the number of

Wenatchee transferees fluctuated from between 33 and 40% of the

Quincy workforce, the majority of the workforce then temporarily

consisting of seasonal new hires. 7d. at 51-52 & nn.63-64.

5

regarded as “a product of a merger or consolidation” of

Ferndale and Wenatchee (as urged by petitioner) or as

“merely a relocated version of Wenatchee” (as urged by

the General Counsel), the ALJ concluded that such

labels were “useful only insofar as they illuminate the

more basic inquiry,” ibid. (internal quotation marks

omitted), set forth by the Board in Harte & Co., 278

N.L.R.B. 947 (1986), of determining “whether or not

there exists ‘sufficient continuity’ between the old and

new operations,” so as to make it appropriate “to extend

the old bargaining relationship to the new location.”

Pet. App. 64.”

Applying that test, the ALJ found that “Quiney is

substantially the same from an operational standpoint as

Wenatchee.” Pet. App. 70. The ALJ explained that

“Quincy’s repack operation is, essentially, the

Wenatchee repack operation ‘relocated’; that “[t]he

> In Harte & Co., 278 N.L.R.B. 947 (1986), the employer

relocated its operation to a new facility, and it transferred a

sufficient number of its employees, who were covered by a union

contract, to the new facility such that they comprised 40% of the

workforce there; the remainder of the employees at the new

facility were not represented by a union. Jd. at 947-948. The

Board held that the employer lawfully applied the union contract

to its entire workforce, explaining: “[A]n existing contract will

remain in effect after a relocation if the operations at the new

facility are substantially the same as those at the old and if

transferees from the old plant constitute a substantial percentage—

approximately 40 percent or more—of the new plant employee

complement.” Jd. at 948.

4 The ALJ pointed out that: (1) although the Quincy plant was

capable of processing a larger volume of produce than the

Wenatchee plant, petitioner continued to prime pack and repack

principally the same varieties of vegetables at both facilities (Pet.

App. 58-54, 63); (2) to the extent that the Quincy plant handled

different vegetable varieties, they did not require the creation of

6

employees used at Quincy when it started operations

‘ame mostly from Wenatchee”; that “[t]hose Wenatchee

transferees were intended to and did comprise a majority

of the compiement used by Quincy during the largest

part of its annual operations”; and that “ijt was during ,

only two months in Quincy’s first year of operations that

new hires temporarily outnumbered Wenatchee trans-

ferees.” bid. The ALJ acknowledged that the Quincy

plant did, to some extent, reflect a “consolidation” of

operations formerly performed at Wenatchee and

Ferndale, but only “in the limited sense that Quincy now

prime packs a few produce varieties which only Ferndale

had processed in the recent past and others which only

Wenatchee had processed formerly.” Jd. at 67. However,

the ALJ found that these limited indicia of “con-

solidation” were not a sufficient basis for finding that

the Quincy plant was a “new” operation privileging

petitioner’s refusal to recognize the Union there. Jd. at

68.

That was so, the ALJ concluded, for two reasons.

First, the Quincy plant’s prime pack operation did not

“significantly change|| the nature of the historical

operation at Wenatchee.” Quincy “merely reflects a

‘replacement’ and ‘expansion’ of Wenatchee’s operation,”

which had been too small to “allow it to prime pack ail of

any job classifications that had not existed at Wenatchee, or cause

any change from the basic way produce had been handled at

Wenatchee (id. at 57); (3) petitioner “relied heavily” on former

Wenatchee managers to staff the Quincy plant (7d. at 54); (4)

virtually all of the Wenatchee repack equipment, and some of its

prime pack equipment, was moved to the Quincy plant (id. at 44,

58); and (5) although petitioner installed some new equipment and

a new quality control system at the Quincy plant, these changes

did not significantly alter the basic manner in which employees

had been performing their jobs at Wenatchee (id. at 55, 60-62).

7

the vegetable varieties flowing in during the Northwest

harvest season.” Pet. App. 68 (internal quotation marks

omitted). Second, the Quincy plant’s prime pack

operation “did not involve the merger at a new location of

transferees from two formerly distinct plant comple-

ments”; rather, the group of employees who transferred

to the Quincy plant was composed “almost entirely” of

Wenatchee employees, and only an “insubstantial”

number of that group were Ferndale employees. Jd. at

69 & n.82. Accordingly, the ALJ concluded that there did

not exist at Quincy a “real question concerning repre-

sentation” requiring petitioner to abstain from rec-

ognizing any union at the Quincy plant, pending a Board

election. Jd. at 69-70, 76-77.

The ALJ rejected petitioner’s contention that, even if

there were substantial continuity between the Quincy

plant and the Wenatchee and Ferndale plants, it had a

reasonable “good faith doubt” as to the Union’s majority

status at the Quincy plant, and thus was justified in

refusing the Union’s February 1990 request for

recognition, since it anticipated that, during the peak of

the harvest season from August 1 to September 30,

seasonal hires would temporarily outnumber the

Wenatchee transferees. Pet. App. 19-20, 70-71. The ALJ

concluded that the relevant date for assessing the ratio

of Wenatchee transferees to new hires under Harte &

Co. was May 25, 1990, the date on which petitioner

conducted a “grand opening” ceremony at the Quincy

plant, because that was the date upon which the transfer

of operations to Quincy was substantially completed.

And, the ALJ found, on May 25, the Wenatchee trans-

ferees constituted a majority of the Quincy workforce.

Id. at 45, 47, 72.

8

The ALJ further explained that, while the Board

“prefers to run representation elections in ‘seasonal’

industries at or near the peak of the season, so as to

enfranchise the largest number of employees” (Pet. App.

73), that general policy does not apply to a situation

where, as here, the seasonal hires “are not likely to be

around at next year’s seasonal peak.” Jd. at 75. The

ALJ added that the Board has never presumed that such

seasonal employees “do not wish to enjoy collective

representation, or the fruits of collective activity

harvested by their fellow workers at an earlier point.”

Id. at 73 (internal quotation marks omitted).

To remedy petitioner’s unfair labor practices, the ALJ

ordered it, inter alia, immediately to recognize and

bargain with the Union as the bargaining representative

of all employees at the Quincy plant, to rescind any

changes in terms and conditions of employment

unilaterally imposed upon the Quincy employees, and to

make those employees whole for any losses they may

have suffered as a result of those unilateral changes.

Pet. App. 80-81.

b. The Board affirmed the ALJ’s findings and

conclusions, and, with a clarification not relevant here,

adopted the ALJ’s remedial order. Pet. App. 6-8.

3. The court of appeals enforced the Board’s order in

an unpublished opinion. Pet. App. 1-5. The court found

that substantial evidence supported the Board’s finding

that there was “continuity of enterprise between the

Wenatchee and Quincy plants.” Jd. at 4. The court

observed that “(t]he year-round Quincy employee com-

plement is not significantly larger than that maintained

at Wenatchee, former Wenatchee employees perform the

same jobs under the same supervision at Quincy as they

had at Wenatchee, the Quincy plant is only 30 miles from

9

Wenatchee, and the addition of certain varieties of

produce at Quincy neither changed job duties and

classifications nor altered the nature of [petitioner’s]

operations.” Jbid. While the court disagreed with the

soard’s selection of May 25, 1990 as the relevant date for

assessing the ratio of Wenatchee transferees to new

hires at the Quincy plant, the court found that, “[e]ven in

late August 1990 * * * former Wenatchee employees

constituted at least 40 percent, or a substantial per-

centage, of the Quincy employee complement.” Jd. at 5.

ARGUMENT

As the court of appeals recognized, a change in the

locus of an employer’s operations does not necessarily

eliminate the empioyer’s obligation under Section 8(a)(5)

of the Act to recognize and bargain with the union

representing its employees. “|T|he question whether

the union representing the employees at the former

location should continue to represent the workers at the

new location involves balancing the newly hired

employees’ interest in choosing whether or not to have

union representation against the transferees’ interest in

retaining the fruits of their collective activity.” Harte

& Co., 278 N.L.R.B. 947, 950 (1986). Thus, where there

has been a change in the geographic location of the

enterprise, the employer must continue to recognize the

union if there is continuity in both the nature of the

employer’s operations and the bargaining unit. See

NLRB vy. Marine Optical, Inc., 671 F.2d 11, 17 (st Cir.

1982); Lammert Industries v. NLRB, 578 F.2d 1223, 1225

(7th Cir. 1978); Harte & Co., 278 N.L.R.B. at 949. Where,

on the other hand, there is a lack of such continuity—in

particular, where two separate bargaining units, each

represented by a different union, are merged into a

single unit, effectively creating a new unit—then a

10

“question concerning representation” arises, and the

employer must not recognize either union until the

Board has determined the employees’ representational

desires through an election. See Hudson Berlind Corp.,

203 N.L.R.B. 421, 423 (1978), enforced, 494 F.2d 1200 (2d

Cir.), cert. denied, 419 U.S. 897 (1974). In this case, the

Board’s finding that there was substantial continuity

between the Quincy plant and the Wenatchee plant, and

that the Ferndale plant bargaining unit had not been

merged with the Wenatchee bargaining unit, was upheld

by the court of appeals as supported by substantial

evidence. Accordingly, further review of that issue by

this Court is not warranted. See Universal Camera

Corp. v. NLRB, 340 U.S. 474, 491 (1951). Nor does the

Board’s decision raise any other issue meriting this

Court’s attention.

1. Petitioner contends (Pet. 11-12) that, because the

Quincy plant was a “consolidation” of the Wenatchee and

Ferndale plants, the Board erred in applying the

“continuity of enterprise” test of Harte & Co., supra, to

determine whether petitioner was obliged under the Act

to recognize the Union at the Quincy plant. According

to petitioner, the Board instead should have followed

Hudson Berlind Corp., supra, and concluded that the

Quincey “consolidation” raised a “question concerning

representation” which should be resolved through a

Board election. Pet. 13. There is no merit to petitioner’s

claim.

In Hudson Berlind Corp., the employer acquired two

facilities, the employees of each of which were

represented by different unions, and merged the two

operations at a third facility. 203 N.L.R.B. at 421. The

Board held that the employer violated Section 8(a)(2) of

the Act, 29 U.S.C. 158(a)(2), by, prior to the transfer of

11

any employees, recognizing the union which represented

the employees at the larger of the two acquired

operations as the representative of all of the employees

at the third facility. 203 N.L.R.B. at 422. The Board

explained that “the very circumstances of the merger

raised a question concerning representation,” since the

employer “was faced with conflicting claims of two

unions currently representing the employees to be

transferred.” Jd. at 423. In those circumstances, the

Board concluded, the employer was prohibited from

voluntarily extending recognition to one of the two

unions before a Board election had been conducted. Ibid.

Here, by contrast, the ALJ correctly found that no

such question concerning representation had arisen at

any time at the Quincy plant. Pet. App. 70. As the ALJ

explained (7d. at 69 n.83), there was “[an] absence in this

case of a real ‘merger’ of employee complements from the

two former plants,” for it was “obvious” that “[peti-

tioner] intended that employees from * * * Wenatchee

* * * would fill the majority of the projected 150-200

year-round positions available at Quincy.” Jd. at 42-43.

Petitioner did not consider former Ferndale employees

to be “a likely source” for staffing the Quincy plant

because of the large distance (210 miles) between the

plants (id. at 41 n.46); and, in fact, former Ferndale

employees comprised “only an insubstantial percentage

of Quincy’s new complement.” Jd. at 69 n.82.° Nor was

the fact that Quincy prime packed some of the vegetables

rc

» As the ALJ noted, petitioner’s personnel manager “hazarded

a guess” that 16 former Ferndale employees “eventually * * *

took jobs at Quincy.” Pet. App. 41 n.46 (internal quotation marks

omitted). Since the Quincy plant employed 170 to 180 year-round

workers (id. at 31 n.36, 52), former Ferndale employees con-

stituted, at most, less than 10% of the Quincy workforce.

12

that only Ferndale had previously packed sufficient to

make Quincy a “new” operation. For, as the ALJ noted,

“Wenatchee, too, was a prime pack plant,” and “Quincy

merely reflects a ‘replacement’ and ‘expansion’ of

Wenatchee’s operation.” Jd. at 68.

Thus, contrary to petitioner’s assertion (Pet. 13), the

decision below does not conflict with that of the Second

Circuit in NLRB v. Hudson Berlind Corp., 494 F.2d

1200, cert. denied, 419 U.S. 897 (1974). There, the Second

Circuit simply affirmed, as supported by substantial

evidence, the Board’s finding that, because a question

concerning representation existed as a result of the

merger of bargaining units in that case, the employer

violated the Act by recognizing one of the two unions

involved without a Board election. 494 F.2d at 1203.

Here, the Board correctly concluded that there was no

merger of bargaining units, and hence no such question

concerning representation existed, at the Quincy plant,

and the court of appeals implicitly sustained that

determination.

2. Petitioner contends (Pet. 13-15) that, even if the

principles of Harte & Co. apply to this case, the Board,

consistent with its policy respecting seasonal

industries, should have assessed the ratio of former

Wenatchee employees to new hires at the Quincy plant

as of September 30, 1990, when the harvest season was at

its peak, rather than as of May 25, 1990, the date of the

Quincy plant’s “grand opening.” There is no merit to

that factbound claim.

As the Board made clear in Harte & Co., “the

appropriate point in time for measuring whether a

substantial percentage of the new work force is

composed of transferees from the old location * * * [is]

the date that the transfer process was substantially

13

completed.” 278 N.L.R.B. at 949 (emphasis omitted). The

ALJ reasonably concluded that the transfer process was

substantially completed by May 25, 1990, at which time a

majority of the employees at the Quincy plant were

Wenatchee transferees. Pet. App. 45, 72. Although the

court of appeals believed that the appropriate date for

assessing the composition of the Quincy workforce was

“late August,” the court found that, even at that time,

the Wenatchee transferees comprised a substantial per-

centage of the Quincy workforce. Jd. at 5.

Nothing in the Board’s policy regarding the holding of

representation elections in seasonal industries required

the Board to assess the composition of the Quincy work-

force on petitioner’s proposed date. Petitioner observes

(Pet. 13-14) that “the Board has consistently held that

seasonal employees who have a reasonable expectation of

re-employment for the next season should be included in

the unit for voting purposes.” But the ALJ correctly

found that principle inapposite here, because the workers

whom petitioner hired for the peak of the 1990 harvest

season “are not likely to be around at next year’s

seasonal peak.” Pet. App. 75. Moreover, as the ALJ also

noted, “the Board has never presumed that ‘new’

employees do not wish to enjoy collective representation,

or the ‘fruits of collective activity’ harvested by their

fellow workers at an earlier point.” Jd. at 73.

3. Petitioner finally contends (Pet. 16-20) that, even if

the Board’s decision in Harte & Co. is applicable to this

case, the Board ignored the first element of the Harte &

Co. test (whether operations at the new facility are

substantially the same as those at the old facility) and

instead relied solely upon the second element of that test

(whether transferees from the old plant constitute a

substantial percentage of the new plant employee

14

complement), in finding that it acted unlawfully by

refusing to recognize the Union at the Quincy plant.

There is no merit to that contention.

Petitioner’s argument mischaracterizes the decisions

of the Board and the court of appeals. Far from

overlooking the question of continuity of operations, the

Board specifically found that “Quincy is substantially

the same from an operational standpoint as Wenatchee”

(Pet. App. 70), and that, even though “Quincy now prime

packs a few produce varieties which only Ferndale had

processed in the recent past and others which only

Wenatchee had processed formerly” (id. at 67), such

changes at the Quincy plant did not “significantly

change[] the nature of the historical operation at

Wenatchee.” J/d. at 68 (internal quotation marks

omitted). The court of appeals sustained the Board’s

findings as supported by substantial evidence. /d. at 4.

The propriety of the court’s determination raises only a

factual issue that does not merit further review by this

Court. See Universal Camera Corp. v. NLRB, 340 U.S.

at 491.°

® Contrary to petitioner’s suggestion (Pet. 17), the Board was

not required “as a matter of law” to find that the Wenatchee and

Quincy plants were substantially different operations simply

because the Quincy plant handled some new kinds of products.

The Board decisions cited by petitioner (Pet. 17 n.2) establish no

such rigid rule; moreover, as the ALJ found, “the introduction of

new produce items or blends [at Quincy] was not shown to have

itself created any job classifications not in existence at Wenatchee,

nor any changes in the basic way prime pack and repack of a more

limited range of produce varieties was handled at Wenatchee.”

Pet. App. 57. Furthermore, neither American Fluorescent Corp.,

275 N.L.R.B. 1097 (1985) (Pet. 18) nor NLRB v. Massachusetts

Machine & Stamping, Inc., 578 F.2d 15 (1st Cir. 1978), upon which

petitioner relies (Pet. 19-20), supports petitioner’s refusal to

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. DAYS, II]

Solicitor General

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations Board

JANUARY 1995

bargain with the union, for those authorities are factually

distinguishable from this case. In American Fluorescent Corp., the

Board, in finding the employer’s refusal to bargain lawful, relied

on the fact that, of the 63 employees at the new facility, only 12

were transferees from the old facility. 275 N.L.R.B. at 1097 n.1,

1099, 1102. And in Massachusetts Machine & Stamping, the court

held that the employer had established a good-faith doubt as to the

union’s majority status at the new plant where, among other

factors, only 11 of 22 employees working at the new plant on its

first day of operations were transferees from the old facility, no

further employees from the old plant had elected to transfer to the

new plant, and the employer had a reasonable expectation that

additional new hires would be added to the workforce at the new

plant “within a very short period of time.” 578 F.2d at 18-19.