Opposition Brief — Geske & Sons, Inc. v. National Labor Relations Board

2

No. 96-1740

Jn the Supreme Court of the

OCTOBER TERM, 1996

GESKE AND SONS, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

FREDERICK L. FEINSTEIN Department of Justice

General Counsel Washington, D.C. 20530-0001

LINDA SHER (202) 514-2217

Associate General Counsel

NORTON J. COME

Deputy Associate General

Counsel

JOHN EMAD ARBAB

Attorney

National Labor Relations

Board

Washington, D.C. 20570

QUESTIONS PRESENTED

1. Whether the National Labor Relations Board

reasonably concluded that petitioner violated Section

8(a)(1) of the National Labor Relations Act, 29 U.S.C.

158(a)(1), by bringing a baseless lawsuit against the

unions to retaliate against their lawful picketing.

2. Whether the National Labor Relations Board

properly exercised its remedial power by ordering

petitioner to reimburse the unions for the attorneys’

fees incurred in defending against the retaliatory

lawsuit.

(I)

TABLE OF CONTENTS

Page

Opinions below ................secccsesessesssrsscesensscesssereesonens 1

III, on rath sunpibenebeotinnepepesomicenepecsgees 1

I a. wlhdvngenmmmetinonaqaniipousocbecsnsanpernes 2

Argument ...........cccccccssscrrrrccsssserecesessssessscscssscsseesoees 6

I ai critical cccinanbndnhbinndipdinndipeeaessceenacsonmseqeqcanecs 13

TABLE OF AUTHORITIES

Cases:

ABF FreightSys., Inc. v. NLRB, 510 U.S. 317

IN icici cihesnernkhabchnnininatiihdiecinoneedsiagatniioetessbes 11

Bill Johnson’s Restaurants, Inc. v. NLRB, 461

FR SD daiciecntevisevcesesctensesuninnnosowmnage 3-4, 6, 7, 9, 10

Diamond Walnut Growers, Inc., 312 N.L.R.B.

61 (1993), enforced, 53 F.3d 1085 (9th Cir. 1995)... 11

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215

TE Saisie ncenncieeacenieanecectcnebiiiieeeiinsbeniesecenececoese 10

Fibreboard Paper Prods. Corp. v. NLRB,

Se, SE ED ivckeiccienidhblendiavandvaeevedoccorescccsseee 11

Gibson Greetings, Inc. v. NLRB, 53 F.3d 385

Cs BIE a ncrcccissnsénsnnentnesadeunenecosanctsoccecsosees 11

Heck’s, Inc., 215 N.L.R.B. 765 (1974) .......ccceeeeeeeeee 12

Johnson & Hardin Co., 305 N.L.R.B. 690

(1991), enforced in part and order vacated in

part, 49 F.3d 237 (6th Cir. 1995) ............cseeeeees 13

BFE FI Be Gs TIDE) oavactscccccccivscccccesccecesceeee 12

Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) ...... 11

Montgomery Ward & Co., 288 N.L.R.B. 126

(1988), remanded, 904 F.2d 1156 (7th Cir. 1990),

modified, 307 N.L.R.B. 764 (1992) .........ccccsceeeeeeees 12

NLRB v. Babcock & Wilcox Co., 351 U.S. 105

IE diac ictidicidiniliaptinhiashiachnesntninshecrejyrimocereeescenense 11

Professional Real Estate Investors, Inc. v.

Columbia Pictures Indus., Inc., 508 U.S.

ea ssicigcapindabbesesonancesenconces 8

Cases—Continued: Page

Sears, Roebuck & Co. v. San Diego County

Dist. Council of Carpenters, 436 U.S. 180

ROTI: sacoccsccccsccciccsiantesttsiaccokapnteteniidisenabitadicicesderss 11

Taylor v. Freeland & Kronz, 503 U.S. 638

(REID <cxssniicseviinsgissunnbiniinnadavennseliatanihaiasaanntinanicnes 10

Tiidee Prods., Inc., 194 N.L.R.B. 1234

(1972) enforced as modified, 502 F.2d 349 (D.C.

Cir.), cert. denied, 417 U.S. 921 (1974) ................ 12

Vee See Constr. Co. v. Jensen & Halstead, Ltd.,

399 N.E.2d 278 (Ill. App. Ct. 1979) ..........ccccsssseeees 6

Zipp v. Geske & Sons, Inc., 103 F.3d 1379 (7th

CA FIA) ccrniccncsisetansecessindenqssentiighingihiualibimiaptnte 5

Statutes:

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

§ 8(a)(1), 29 U.S.C.158(a)(1) .........cceceseeseeeeees 3, 4, 6, 7, 10

© BACT), BO UTR, WDD svssissiceccesqeccccoscesscanensecsaco 5

In the Supreme Court of the Giited wees

OCTOBER TERM, 1996

No. 96-1740

GESKE AND SONS, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

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

23a) is reported at 103 F.3d 1366. The decision and

order of the National Labor Relations Board (Pet.

App. 24a-31la), and the decision of the administrative

law judge (Pet. App. 32a-120a), are reported at 317

N.L.R.B. 28.

JURISDICTION

The court of appeals (Pet. App. 162a) entered its

judgment on January 9, 1997. On March 20, 1997,

Justice Stevens extended the time within which to

(1)

ee

2

file a petition for a writ of certiorari to April 30, 1997,

and the petition was filed on that date. The jurisdic-

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

STATEMENT

1. Petitioner is engaged in asphalt paving and

the manufacture of asphalt mix. Pet. App. 35a. On

August 19, 1991, Operating Engineers Local 150,

assisted by Teamsters Local 301 (the Unions), began

picketing petitioner’s facility, seeking recognition as

the representative of petitioner’s employees. Jd. at

2a, 42a, 48a. Six to twelve pickets patrolled along a

public roadway running in front of the plant, carrying

picket signs that read: “I.U.0.E. LOCAL 150 ON

STRIKE AGAINST GESKE FOR RECOGNITION

AS MAJORITY BARGAINING REPRESENTA-

TIVE OF COMPANY’S OPERATING’ ENGI-

NEERS.” Id. at 42a-48a.

2. In September 1991, petitioner filed suit in state

court against the Unions, alleging trade libel, tor-

tious interference with contractual relations, and

tortious interference with prospective advantage.

Pet. App. 3a, 63a-64a. The complaint requested in-

junctive relief and damages “incidental to [the] in-

junctive relief.” Id. at 117a; see also id. at 4a. Follow-

ing a nine-day hearing, during which petitioner

introduced the testimony of approximately 17 wit-

nesses, the state court granted the Unions’ motion

for a directed finding in their favor and denied peti-

tioner’s request for a preliminary injunction. Jd. at

4a, 80a, 131a. The court explained that the Unions’

picket signs did not “by any reasonable interpretation

indicate a trade libel against Geske, and I believe that

the likelihood of success on the merits as to that

count is small.” Jd. at 188a. The court also found that

3

petitioner had no likelihood of success on its claims of

tortious interference with contractual relationships

and prospective advantage, because any interference

in petitioner’s business was a lawful “part of” the

picketing and flowed from “the very nature of having

the picketers.” Jd. at 140a-141la. Petitioner presented

“no evidence” that the Unions “committed any unlaw-

ful trespasses” or made “threats of violence.” Jd. at

14la.

The Appellate Court of Illinois affirmed the trial

court’s denial of injunctive relief. Pet. App. 98a, 121a-

130a. The Illinois Supreme Court denied petitioner

leave to file an appeal. Jd. at 5a. This Court denied

petitioner’s petition for a writ of certiorari. Jd. at 5a

& n.4, 96a.

3. While petitioner’s case was pending before the

Appellate Court of Illinois, the Regional Director of

the National Labor Relations Board (Board) issued an

administrative complaint against petitioner. Pet.

App. 87a-88a. The complaint alleged that petitioner

had prosecuted a state-court lawsuit that lacked a

reasonable basis and was motivated by an intent to

retaliate against the Unions for engaging in pro-

tected concerted activity, in violation of Section

8(a)(1) of the National Labor Relations Act (Act), 29

U.S.C. 158(a)(1). Pet. App. 87a.

The administrative law judge (ALJ) sustained the

Regional Director’s complaint.. Pet. App. 32a-120a.

The ALJ found that Local 150 was engaged in peaceful

recognitional picketing protected by the Act. Jd. at

102a-107a, 116a. Applying Bill Johnson’s Restau-

1 Petitioner subsequently filed a third and fourth amended

complaint, in which it added various new defendants and

allegations to the suit. Pet. App. 82a, 96a, 131a, 146a.

rants, Inc. v. NLRB, 461 U.S. 731 (1983), the ALJ

concluded that petitioner violated Section 8(a)(1) by

filing and prosecuting its state-court suit against the

Unions. Pet. App. 116a. First, relying “mostly on the

determination of the state judge who conducted the

state court trial that [petitioner] had failed to

establish likelihood of success on the merits, and on

the action of the state appellate and supreme courts in

denying [petitioner’s] interlocutory appeal,” the ALJ

concluded that the lawsuit was without basis. Id. at

110a. Although petitioner asserted that it had “lots of

other evidence” beyond what it presented to the state

courts in support of its preliminary injunction

motion, the ALJ observed that petitioner had “fail[ed]

to enlighten me as to the nature of this ‘lots of other

evidence.’” Id. at 34a n.4.”

Second, the ALJ found, based on the evidence pre-

sented to her, that petitioner had filed and prosecuted

the state-court lawsuit “to retaliate against the pro-

tected concerted activity of [the Unions].” Pet. App.

115a:

Based on the violation of Section 8(a)(1), the ALJ

recommended that the Board order petitioner, among

other things, to withdraw its state-court lawsuit “to

the extent that this lawsuit includes allegations in

the third amended complaint or its predecessors” and

to reimburse the Unions for all legal expenses “in-

curred in connection with such allegations.” Pet.

App. 118a.

2 The ALJ further found petitioner’s argument that the

ruling on the preliminary injunction motion did not substan-

tially dispose of its case to be inconsistent with representations

petitioner previously made to this Court and to the Illinois

Supreme Court. Pet. App. 111a.

veces

5

With certain modifications not relevant here, the

Board affirmed the ALJ’s findings and conclusions

and adopted the recommended order. Pet. App. 24a-

3la.

4, The court of appeals enforced the Board’s order.

Pet. App. la-23a. The court agreed with the Board

that, “under the Illinois standard for trade libel, [peti-

tioner’s] state lawsuit against Local 150 and the other

defendants was clearly baseless.” Jd. at 23a. The

court rejected petitioner’s contention that inclusion

of the phrase “On Strike” rendered the picket signs

false, agreeing with the state courts that “there is no

reasonable way to interpret the statements as

[petitioner] suggests.” Jd. at 13a. Furthermore,

even if the picket signs contained a false statement,

the court of appeals agreed with the state courts and

the Board that, under Illinois law, petitioner was not

defamed: “There is nothing about a company’s

employees being on strike that suggests that the

8 Despite the ALJ’s decision, petitioner continued to prose-

cute its state-court suit. The Board’s Regional Director filed a

petition in federal district court, seeking an injunction barring

petitioner from prosecuting its lawsuit until the Board issued a

final decision in the unfair labor practice proceeding. Pet.

App. 157a; see 29 U.S.C. 160(j). Petitioner filea a number of

counterclaims. Pet. App. 157a-158a. When the Board issued its

decision affirming the ALJ, the Regional Director voluntarily

dismissed his petition. The district court then dismissed peti-

tioner’s counterclaims for lack of jurisdiction. Jd. at 158a, 163a-

165a. The court of appeals affirmed. Zipp v. Geske & Sons,

Inc., 103 F.3d 1379 (7th Cir. 1997) (Pet. App. 154a-162a). Peti-

tioner has not sought further review of that decision.

4 The court noted that only the viability of the state libel

claim was at issue in the case, because petitioner had not

included its tortious interference claims in its statement of

issues presented for appellate review. Pet. App. lla.

6

company has engaged in fraud or mismanagement or

that necessarily assails the company’s financial

position or business methods.” Id. at 14a (citing Vee

See Constr. Co. v. Jensen & Halstead, Ltd., 399

N.E.2d 278 (Ill. App. Ct. 1979)). The court also ruled

that substantial evidence supported the Board’s

finding that petitioner filed the lawsuit for

retaliatory reasons. Pet. App. 15a, 23a. Petitioner’s

claim to the contrary was deemed “completely devoid

of merit.” Id. at 15a.

Lastly, the court of appeals held that the Board

acted within its broad remedial authority in ordering

petitioner to reimburse the Unions for the attorneys’

fees they incurred in defending against petitioner’s

lawsuit. Pet. App 20a-23a. The court noted that “the

Board may award attorneys’ fees to unions when they

are subjected to patently frivolous litigation before

the Board in the course of an unfair labor practice

proceeding,” and that “[tJhat situation is highly

analogous to the situation before us today.” Id. at 22a.

The award of fees, moreover, “effectuates the policies

underlying the [Act],” because “[t]he injured party,

the [uJnion that plays a necessary part in the organ-

izational activities of the employees, is compensated

for expenses that it would not have incurred in the

absence of the baseless state law suit.” bid.

ARGUMENT

1. Petitioner contends (Pet. 11-19) that the court

of appeals erred in applying the standard established

in Bill Johnson’s Restaurants, Inc. v. NLRB, 461

U.S. 731 (1983), for determining when an employer’s

state court action violates Section 8(a)(1) of the

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

158(a)(1). In Bill Johnson’s, this Court held that “it

7

is an enjoinable unfair labor practice to prosecute a

baseless lawsuit with the intent of retaliating

against” an exercise of rights protected by the Act.

461 U.S. at 744. A lawsuit is baseless if the employer

| cannot “present the Board with evidence that shows

his lawsuit raises genuine issues of material fact” or

“genuine state-law legal questions.” Id. at 745-746. If

a lawsuit is determined to be baseless, the Board may

then decide whether the suit was filed with the

subjective intention of retaliating against the exer-

cise of protected rights. Id. at 747.

a. Petitioner does not challenge the Board’s find-

ing that the Unions in this case were engaged in

peaceful recognitional picketing protected by the Act.

Nor does petitioner seek review of the Board’s factual

finding that petitioner filed and prosecuted its state-

court lawsuit in order to retaliate against the Unions

for engaging in such protected activity. Rather, peti-

tioner contends (Pet. 11) that the court of appeals

erred in holding that its lawsuit was baseless because

the suit was not “based on intentional falsehoods or

on knowingly false claims.” This claim does not

merit further review.

This Court recognized in Bill Johnson’s that, in

addition to suits based on “intentional falsehoods” and

“knowingly frivolous claims,” (461 U.S. at 743) law-

suits that “lack[] a reasonable basis in fact or law”

can provide the predicate for a Section 8(a)(1) viola-

tion. Id. at 748. The court of appeals correctly found

that petitioner’s trade libel claim lacked such a

reasonable basis. Both the state trial and appellate

courts held that petitioner was unlikely to succeed on

its trade libel claim. Pet. App. 125a-127a, 138a. Nor

did petitioner’s trade libel claim present a genuine

issue of material fact, because the content of the

8

picket signs was not in dispute. Furthermore, each

state court that reviewed the claim concluded that

there was no reasonable way to construe the signs as

constituting a trade libel. Jd. at 127a, 138a. Accord-

ingly, the court of appeals correctly concluded that

petitioner’s trade libel claim was baseless under the

standard set forth in Bill Johnson’s.

b. Contrary to petitioner’s assertion (Pet. 12), the

court of appeals’ decision is consistent with Profes-

sional Real Estate Investors, Inc. v. Columbia Pic-

tures Indus., Inc., 508 U.S. 49 (1993). Columbia held

that, under the antitrust laws, litigation is a “sham”

if the lawsuit is “objectively baseless in the sense

that no reasonable litigant could realistically expect

success on the merits.” 508 U.S. at 60. In the present

case, every court that has considered the question—

both state and federal—has concluded (as did the

NLRB) that petitioner’s trade libel claim had no

realistic chance of success on the merits. Those con-

sistent determinations are the equivalent of a finding

that the case is “objectively baseless.” This is espe-

cially true in light of petitioner’s inability or unwill-

ingness to identify any new or additional evidence to

buttress its claim, beyond what it presented to the

state courts at the preliminary injunction stage five

years ago.

Likewise, petitioner’s contention (Pet. 12-13) that

the court of appeals’ decision conflicts with decisions

of the Third, Fifth, and Ninth Circuits is without

merit. Petitioner notes that those courts applied a

“no realistic chance of success on the merits” stan-

dard. Jbid. That is merely another way of articulat-

ing the standard applied by the Board and the court of

appeals here. See Pet. App. 12a-14a, 109a-113a (apply-

ing Bill Johnson’s standard and relying, inter alia,

9

upon state courts’ finding that petitioner is unlikely

to succeed on the merits).

c. Petitioner also argues (Pet. 14) that the Board

contravened Bill Johnson’s by “review[ing] all the

evidence” and “ma{king] numerous credibility and

demeanor based decisions in favor of one party

over another.” The Board’s determination that peti-

tioner’s suit was baseless, however, rested upon the

legal conclusions of the state courts and petitioner’s

own statements in its filings with the Illinois Su-

preme Court and this Court. Pet. App. 110a-113a.

The credibility determinations that were made (as

relevant here) pertained to the Board’s factual finding

that petitioner acted with a retaliatory motive, which

is fully within the Board’s province to adjudicate.

See, ¢.9., id. at 44a, 52a n.18, 6la n.21, 62a n.23, 66a

n.28.°

Nor is there merit to petitioner’s related conten-

tion (Pet. 13) that the court of appeals erred in fault-

ing petitioner for its refusal to proffer the addi-

tional evidence it claimed to possess. Bill Johnson’s

squarely places on the state-court plaintiff the burden

“to come forward with any evidence * * * or at least

with an acceptable explanation why he cannot present

such evidence” demonstrating that its state-law claim

has a reasonable basis or that genuine issues of

material fact remain. 461 U.S. at 746 n.12; see also id.

at 745-746.°

® Petitioner has not sought review of the aspect of the

court of appeals’ decision pertaining to the retaliatory motive

prong of the Bill Johnson’s test.

$ Petitioner criticizes (Pet. 17) the court of appeals for not

considering the libel per quod claim asserted in its fourth

amended complaint. Petitioner, however, did not argue that

theory below, and neither the Board nor the court of appeals

10

In any event, petitioner’s narrow challenge to how

the Board and court of appeals applied the correct

legal standard in this particular case presents no

issue of broad or recurring importance — this

Court’s review.

2. Petitioner contends (Pet. 19-25) that the Board’s

order requiring petitioner to reimburse the Unions

for the legal expenses they incurred in defense of the

state-court litigation conflicts with decisions of this

Court and of the Sixth Circuit. No conflict exists

meriting this Court’s review.

The award of fees is fully consistent with this

Court’s precedents. Bill Johnson’s provided that,

when an employer violates Section 8(a)(1) of the Act

by filing a baseless lawsuit for a retaliatory motive,

“the Board may order the employer to reimburse the

employees whom he had wrongfully sued for their

attorney’s fees and other expenses.” 461 U.S. at 747.

Petitioner contends (Pet. 19-22) that Bill Johnson’s

allows reimbursement only of “employees,” and not

the nonemployee union organizers named as defen-

dants in petitioner’s state suit. The reference to

employee awards in Bill Johnson’s, however, simply

reflected the facts of the case before the Court.

Petitioner cites nothing in the opinion’s language or

reasoning that mandates “a categorical inference by

negative implication” (Pet. App. 21a) that the Board is

precluded from awarding costs to a union under any

has addressed the claim. Pet. App. 13a n.12; see also id. at 116a,

118a (remedial action required by Board’s order confined to

allegations “in the third amended complaint or its predeces-

sors”). “It is this Court’s practice to decline to review those

issues neither pressed nor passed upon below.” FW/PBS, Inc.

v. City of Dallas, 498 U.S. 215, 224 (1990) (plurality opinion);

see also Taylor v. Freeland & Kronz, 503 U.S. 638, 646 (1992).

11

circumstances. Indeed, because the employees’ “right

of self-organization depends in some measure on

[their] ability * * * to learn the advantages of self-

organization from others,” Lechmere, Inc. v. NLRB,

502 U.S. 527, 532 (1992) (quoting NLRB v. Babcock &

Wilcox Co., 351 U.S. 105, 118 (1956)), unions possess

derivative rights to engage in organizational activi-

ties to protect the employees’ underlying right to

organize, Sears, Roebuck & Co. v. San Diego County

Dist. Council of Carpenters, 486 U.S. 180, 206 n.42

(1978). While the union’s derivative rights are not as

broad as the employees’ rights, they support a limited

award of fees that simply reimburses the union for

the costs it incurred in defending against a baseless

lawsuit that was intended to interfere with the

employees’ right to organize. Cf. Fibreboard Paper

Prods. Corp. v. NLRB, 379 U.S. 208, 216 (1964) (Board

enjoys “a broad discretionary” power to devise reme-

dies “subject to limited judicial review,” so that a

remedial order of the Board will be reversed only if it

“Is a patent attempt to achieve ends other than those

which can fairly be said to effectuate the policies of

the Act”) (citations and internal punctuation omit-

ted). See also ABF Freight Sys., Inc. v. NLRB, 510

U.S. 317, 324-825 (1994), and cases there cited.

Contrary to petitioner’s assertion (Pet. 20), the

court of appeals’ decision accords with those of other

circuits. See Gibson Greetings, Inc. v. NLRB, 53 F.3d

385, 394 (D.C. Cir. 1995) (“The NLRB can award a

Union the costs and fees it incurs in defending

against an employer’s baseless, retaliatory lawsuit

only if it determines that the filing or maintenance of

the lawsuit was an unfair labor practice.”); Diamond

Walnut Growers, Inc., 312 N.L.R.B. 61, 71 (1998),

enforced, 53 F.3d 1085 (9th Cir. 1995). Petitioner is

12

correct that the Sixth Circuit declined to enforce a

particular attorneys’ fee award to a union in Johnson

& Hardin Co. v. NLRB, 49 F.3d 237, 244 (1995). But

in that case, the Sixth Circuit had reversed the

Board’s determination that the employer’s state-

court lawsuit against the union was baseless and

retaliatory. Jd. at 243-244. The predicate for an

award of fees—compensation for the costs incurred by

the union in an unlawful lawsuit—was thus absent in

Johnson, and the Board failed to offer any alternative

support for its award.’ Accordingly, there is no

direct conflict between the decision reached in

Johnson and that in the present case, and any alleged

inconsistency in the reasoning of the two opinions

does not merit this Court’s review.

7 The court’s statement that the Board erred in finding

“no basis for distinguishing between employees and nonem-

ployee union representatives as recipients of reimbursement”

was thus dictum. Johnson, 49 F.3d at 244.

8 Petitioner errs in asserting (Pet. 20, 23) that the award of

fees is inconsistent with the Board’s policy of awarding costs

and fees in cases where a party asserts “patently frivolous”

defenses in a Board proceeding. See Tiidee Prods., Inc., 194

N.L.R.B. 1234 (1972), enforced as modified, 502 F.2d 349 (D.C.

Cir.), cert. denied, 417 U.S. 921 (1974); Heck’s, Inc., 215

N.L.R.B. 765 (1974) (supplemental decision on remand).

Attorneys’ fees and costs are awarded in the latter situation to

ensure “speedy access to uncrowded Board and court dockets”

by “discourag[ing] future frivolous litigation.” Tiidee, 194

N.L.R.B. at 1236. The fees in this case were awarded to com-

pensate a party that had been forced to defend against a base-

less and retaliatory court suit. Because the remedies serve dis-

tinct purposes, the Board could reasonably set different stan-

dards for the award of attorneys’ fees and costs in each situa-

tion. Petitioner’s reliance (Pet. 24) on Montgomery Ward &

Co., 288 N.L.R.B. 126 (1988), remanded, 904 F.2d 1156 (7th Cir.

1990), modified, 307 N.L.R.B. 764 (1992), is also misplaced.

13

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

FREDERICK L. FEINSTEIN

General Counsel

LINDA SHER

Associate General Counsel

NORTON J. COME

Deputy Associate General

Counsel

JOHN EMAD ARBAB

A

National Labor Relations

Board

JULY 1997

There, the Board upheld an ALJ recommendation not to award

a nonemployee union organizer legal expenses where the em-

ployer’s actions enjoyed “some debatable support.” Jd. at 194-

195. Further, the cases relied upon by the ALJ in that case for

the proposition that the Board can award legal expenses only to

employees were subsequently overruled by the Board. See

Johnson & Hardin Co., 305 N.L.R.B. 690, 698 (1991), enforced

in part & order vacated in part, 49 F.3d 237 (6th Cir. 1995).

EEO