Opposition Brief — Honeyville Grain, Inc. v. National Labor Relations Board (No. 06-482)

(2-)

No. 06-482

Jn the Supreme Court of the Anited States

HONEYVILLE GRAIN, INC., PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

JOHN E. HIGGINS, JR. Washington, D.C. 20530-0001

Deputy General Counsel (202) 514-2217

JOHN H. FERGUSON

Associate General Connsel

LINDA DREEREN

Assistant General Counsel

DAVID HABENSTREIT

Supervisory Attorney

JEFF BARHAM

Attorney

National Labor Relations

Board

Washington, D.C. 20570

RONALD MEISBURG

General Counsel

QUESTION PRESENTED

Whether the National Labor Relations Board has

reasonably concluded that it will not invalidate a repre-

sentation election based on isolated religious remarks

made during the election campaign unless the party

challenging the election proves that the remarks were

either inflammatory or a central theme of the campaign.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Arlington Hotel Co. v. NLRB, 712 F.2d 333 (8th Cir.

DE cbvchvctinsscedl beens sdubewaseueneceuaenes 2

Case Farms of N. C., Inc. v. NLRB, 128 F.3d 841

(4th Cir. 1997), cert. denied, 523 U.S. 1077

CREE veers devceedsoecssdacecianenadesoeneeue 2,10

Catherine’s, Inc., 316 N.L.R.B. 186 (1995) ............ 11

KI (USA) Corp. v. NLRB, 35 F.3d 256 (6th Cir.

DED k006 donké Cecdendtunceeseunsriededasuerin 7,8

M & M Supermkts., Inc. v. NLRB, 818 F.2d 1567

(11th Cir. 1987) ...... jeeeusea eau ienemeeenaee 8,9

NLRB v. A. J. Tower Coe., 329 U.S. 324 (1946) ......... 11

NLRB v. Bancroft Mfg. Co., 516 F.2d 436 (5th Cir.

1975), cert. denied, 424 tS. 914 (1976) .......... ro

NLRB vy. Dixon Indus., {x¢., 700 F.2d 595 (10th Cir.

ee nue écenbseevccescaenlereess eee S

NLRB vy. Flambeau Airmold Corp., 178 F.3d 705

CG Ga RED <vcivdduteceseuedsiscsneuseeinees 8

NLRB vy. Katz, 701 F.2d 703 (7th Cir. 1983) ......... 9, 10

NLRB v. Mattison Mach. Works, 365 U.S. 123 (1961) ...8

(III)

IV

Cases—-Continued Page

NLRB v. Schapiro & Whitehouse, Inc., 356 F.2d 675

SUE: Vecatick ox teseles ce teuk core woken 10

NLRB v. Silverman’s Men’s Wear, Inc., 656 F.2d 53

I oo ee Boe eae eee ee 8,9

NLRB v. Sumter Plywood Corp., 535 F.2d 917

(5th Cir. 1976), cert. denied, 429 U.S. 1092 (1977) ... 7,8

Peerless of Am., Inc. v. NLRB, 576 F.2d 119 (7th Cir.

1978), overruled in part on other grounds, Mosey

Mfg. Co. v. NLRB, 701 F.2d 610 (7th Cir. 1983) ...... 7

Sewell Mfg. Co., 1388 N.L.R.B. 66 (1962) ....... 2,4, 10,12

State Bank of India v. NLRB, 808 F.2d 526 (7th Cir.

1986), cert. denied, 483 U.S. 1005 (1987) ........... 2,9

Uniroyal Tech. Corp. v. NLRB, 98 F.3d 993 (7th Cir.

DEE b4tes cuba keene Sans nd ehna thease tee eeeeine 8

YKK (U.S.A.), Inc., 269 N.L.R.B. 82 (1984) ............ 2

Statutes:

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

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In the Supreme Court of the Cnited States

No. 06-482

HONEYVILLE GRAIN, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-25a)

is reported at 444 F.3d 1269. The decision and order of

the National Labor Relations Board (Pet. App. 26a-35a)

is reported at 342 N.L.R.B. No. 61. The Board’s under-

lying decision and certification of representative (Pet.

App. 36a-46a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 27, 2006. A petition for rehearing was denied on

July 6, 2006 (Pet. App. 47a). The petition for a writ of

certiorari was filed on October 4, 2006. The jurisdiction

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

STATEMENT

1. In Sewell Mfg. Co., 1388 N.L.R.B. 66 (1962), the

National Labor Relations Board (Board or NLRB) an-

nounced that it would set aside representation elections

where a party “deliberately seek|s] to overstress and

exacerbate racial feelings by irrelevant, inflammatory

appeals.” Jd. at 71-72. Pursuant to that policy, the

Board has set aside elections because of inflammatory

appeals to racial, religious, or ethnic bigotry. See, e.g.,

YKK (U.S.A.), Inc., 269 N.L.R.B. 82, 84 (1984) (union

mounted virulent and sustained anti-Japanese cam-

paign).

In the Board’s view, however, not all references to

racial or religious issues warrant invalidation of election

results, because election standards cannot be set “so

high that for practical purposes elections could not ef-

fectively be conducted.” Sewell, 138 N.L.R.B. at 70.

The Board therefore does not set aside elections on the

basis of remarks that are not inflammatory or do not

represent a central theme of the election campaign. See,

e.g., id. at 70-71 (distinguishing a “deliberate, sustained

appeal to racial prejudice” from a “single, casual” refer-

ence); Case Farms of N.C., Inc. v. NLRB, 128 F.3d 841,

845 (4th Cir. 1997) (racial or ethnic appeals violate

Sewell only if they are inflammatory or form the core of

the campaign), cert. denied, 523 U.S. 1077 (1998); State

Bank of India v. NLRB, 808 F.2d 526, 542 (7th Cir.

1986) (racial remark did not invalidate election because

it was “isolated” and not “sufficiently close to the core

theme of the campaign”), cert. denied, 483 U.S. 1005

(1987); Arlington Hotel Co. v. NLRB, 712 F.2d 333, 337-

338 (8th Cir. 1983) (isolated comparisons of a manager

to Hitler and of the workplace to a slave ship were not

3

inflammatory); NLRB v. Bancroft Mfg. Co., 516 F.2d

436, 443 (5th Cir. 1975) (campaign was oriented around

economic issues despite racial remarks), cert. denied,

424 U.S. 914 (1976).

2. Petitioner Honeyville Grain, Inc., processes and

distributes food products. Petitioner operates a fleet of

trucks from its facility in Rancho Cucamonga, Califor-

nia. In February 2002, the International Brotherhood

of Teamsters, AF L-C10 (Union) filed a petition to rep-

resent all full-time and regular part-time drivers em-

ployed by petitioner at that facility. Pursuant to a deci-

sion and direction of election, the Board conducted a

secret batlot election among eligible employees. The

Unien won the election by a vote of 23 to 7, with 2 chal-

lenged ballots. Pet. App. 2a.

Petitioner filed objections to the election. As rele-

vant here, petitioner contended that the election should

be invalidated because the Union made impermissible

appeals to religious prejudice during the election cam-

paign. At a hearing to review the objection, evidence

was adduced that, at one meeting shortly before the

election, two union agents stated that petitioner was run

by Mormons; that petitioner gave money to the Mormon

Church; that companies have tax incentives to give prof-

its to churches, when those profits should instead be

shared with the workers; that petitioner’s Mormon own-

ers also gave money to Mormon missionaries: and that

Mormons are missionaries, and missionaries speak good

Spanish. Pet. App. 3a, 38a. The Board’s hearing officer

recommended that the Board overrule petitioner’s ob-

jection and certify the Union as the employees’ bargain-

ing representative. /d. at 36a-37a.

The Board adopted the hearing officer’s findings and

recommendations and certified the Union as the exclu-

1

sive collective-bargaining representative of the employ-

ees. Pet. App. 6a, 36a-46a. Quoting Sewell, the Board

stated that the “ultimate consideration is whether the

challenged propaganda has lowered the standards of

campaigning to the point where it may be said that the

uninhibited desires of the employees cannot be deter-

mined in an election.” /d. at 39a (quoting 138 N.L.R.B.

at 71). The Board rejected petitioner’s argument that

an election should be set aside unless the party making

the religious reference shows that the remarks were

germane and truthful. Noting that Sewell distinguished

between “sustained deliberate, calculated appeals to

racial prejudice (as in that case) and isolated, casual

remarks appealing to prejudice,” the Board stated that

it “has consistently refused to overturn elections on the

basis of comments with racial or religious overtones,

even when they were inaccurate or gratuitous, when the

comments were not inflammatory or part of a sustained,

persistent attempt to appeal to the racial or religious| |

prejudices of eligible voters.” /d. at 40a.

Applying those principles, the Board found that peti-

tioner had “failed to demonstrate that the | Union’s] con-

duct amounted to a sustained inflammatory appeal or a

systematic attempt to inject religious issues into the

campaign.” Pet. App. 41a (internal quotation marks

omitted). In reaching that conclusion, the Board consid-

ered that the comments were made at only one of ap-

proximately 10 union meetings, and that there was no

evidence of any other injection of religious comment into

the campaign, or of any preexisting religious tension in

the workplace. Accordingly, the Board determined, reti-

gion was “neither the core nor the theme of the cam-

paign.” /bid. Further, the Board found, the evidence

did not demonstrate the existence of a “calculated at-

5

tempt to so inflame religious prejudice that the employ-

ees would vote against | petitioner] on religious grounds

alone.” /bid. Because petitioner “failed to demonstrate

that the [Union], through its preelection conduct, over-

stressed and exacerbated racial or religious feelings

through a deliberate appeal to prejudice,” the Board

declined to set aside the election. /d. at 42a.

Petitioner, citing its disagreement with the Board’s

refusal to set aside the election, refused the Union’s sub-

sequent request for bargaining. Pet. App. 6a-7a. The

Union filed an unfair labor practice charge, and the

Board’s General Counsel issued a complaint alleging

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

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

(1). Pet. App. 26a. Finding that all issues relevant to

the unfair labor practice complaint were or could have

been litigated in the representation proceeding, the

Board granted the General Counsel’s motion for sum-

mary judgment, found that petitioner’s refusal to bar-

gain with the Union violated the Act, and ordered peti-

tioner to bargain with the Union. /d. at 26a-35a.

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

Pet. App. la-25a. The court concluded that the Board,

in accordance with Sewell and its progeny, correctly

placed the initial burden on petitioner to show that the

remarks to which it objected were inflammatory or

formed the core of the Union’s campaign. The court

declined to adopt petitioner’s proposed “per se rule”

that an election should be set aside if the party making

the religious statement fails to prove, as an initial mat-

ter, that its statements were germane and not inflamma-

tory. /d. at 10a. The court noted that no Board or ap-

pellate authority supported petitioner’s argument and

that the Board’s “framework accords with other circuits

6

that have explicitly discussed a party’s initial burden

when challenging pre-election racial and religious re-

marks.” /d. at lla.

Having determined that the Board correctly placed

the initial burden of proof on petitioner, the court held

that substantial evidence supported the Board’s finding

that the religious remarks were neither inflammatory

nor the central theme of the Union’s campaign. Pet.

App. lla. The court found that the comments “did not

explicitly disparage Mormons or reference the owners’

religion in an overtly abusive or gratuitous manner;”

nor, in contrast to cases in which elections have been set

aside, did the speakers “employ vulgarity or profanity to

signal that | petitioner’s] owners deserved particular dis-

dain.” /d. at 16a. The court further agreed with the

Board that the references to Mormonism were outside

of the core issues of the campaign, that there was no

evidence of preelection religious tension, and that the

remarks were made at only one of approximately 10

meetings during the course of an extended campaign.

Id. at 18a-19a.

Judge Kelly, dissenting, disagreed with the Board’s

factual conclusion and would have found that the Union’s

religious remarks were inflammatory. Pet. App. 2la-

24a. The dissent did not disagree, however, with the

general burden-shifting approach adopted by the major-

ity. See vbrd.

The court of appeals denied petitioner’s petition for

rehearing en bane. Pet. App. 47a. Judge Kelly voted to

grant panel rehearing, to the extent that the petition for

rehearing en banc could be read to include such a re-

quest. /bid.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or an-

other court of appeals. This Court’s review is therefore

not warranted.

1. Petitioner contends (Pet. 2, 5-8) that this Court’s

review is needed to resolve a conflict between the deci-

sion below, which holds that the party challenging an

election has the burden of showing that preelection ra-

cial or religious remarks were inflammatory or formed

the core of the election campaign, and decisions of four

other courts of appeals. According to petitioner, those

other courts require the election to be set aside unless

the party that made the remarks initially establishes

that they were germane to legitimate election issues.

Petitioner is incorrect, and there is no conflict.

a. As the court below correctly observed, those

courts that have addressed the issue raised by petitioner

have “followed a general burden-shifting regime” that

requires “a party challenging a representative election

first to demonstrate that the religious remarks were in-

flammatory or formed the core of the campaign.” Pet.

App. 10a-12a (citing Case Farms of N.C., Inc. v. NLRB,

128 F.3d 841, 845 (4th Cir. 1997), cert. denied, 523 U.S.

1077 (1998); NLRB v. Sumter Plywood Corp., 535 F.2d

917, 925 (5th Cir. 1976), cert. denied, 429 U.S. 1092

(1977); Peerless of Am., Inc. v. NLRB, 576 F.2d 119, 125

(7th Cir. 1978), overruled in part on other grounds, Mo-

sey Mfg. Co. v. NLRB, 701 F.2d 610 (7th Cir. 1983); AJ

(USA) Corp. v. NLRB, 35 F.3d 256, 260 (6th Cir. 1994)).

Only then does the burden shift to the party that made

the remarks to establish that they were truthful and

8

germane. See Sumter Plywood Corp., 535 F.2d at 925;

KI (USA) Corp., 35 F.3d at 260.

That approach accords with the long-established

principle that the party challenging the results of a rep-

resentation election bears a heavy burden to demon-

strate that the election should be set aside, because

there is a “presumption that ballots cast under the safe-

guards provided by Board procedure reflect the true

desires of the participating employees.” NLRB vy. Dixon

Indus., Inc., 700 F.2d 595, 599 (10th Cir. 1983); see

NLRB vy. Mattison Mach. Works, 365 U.S. 123 (1961).

That “heavy burden” applies even when parties allege

election interference based on “racial or religious re-

marks.” M & M Supermkts., Inc. v. NLRB, 818 F.2d

1567, 1573 (11th Cir. 1987); accord NLAB v. Flambeau

Airmold Corp., 178 F.3d 705, 707-708 (4th Cir. 1999);

Uniroyal Tech. Corp. v. NLRB, 98 F.3d 9938, 997-998

(7th Cir. 1996).

b. The cases cited by petitioner (Pet. 2, 5-7) do not

conflict with the decision below. The court of appeals

expressly addressed the case on which petitioner princi-

pally relies, NLRB v. Silverman’s Men’s Wear, Inc.,

656 F.2d 53 (3d Cir. 1981), and correctly explained

that Silverman’s is consistent with the approach fol-

lowed below. Relying on the same passage quoted by

petitioner (Pet. 6), the court of appeals noted that the

Silverman’s court first concluded that the alleged im-

proper remark—which explicitly disparaged the em-

ployer’s religion—fell within the Sewell definition of an

inflammatory appeal to prejudice. Pet. App. 1la; see

Silverman's, 656 F.2d at 58 (“We can see no reason for

the remark except to inflame and incite religious or ra-

cial tensimms.”). Only at that point did the court in

Silverman s conclude that “the burden of establishing

9

the legitimacy of the remark shifted to the Union.” /bid.

(quoting Silverman’s, 656 F.2d at 58). See Pet. App.

16a-17a (explaining why the remark in Silverman's, un-

like the remark in this case, was inflammatory).

None of the other cases on which petitioner relies

addressed the burden-shifting issue. And none of those

cases held that an election must be set aside unless the

party that made religious or racial remarks carries an

initial burden of showing that the remarks were ger-

mane to the election. In M & M Supermarkets (cited at

Pet. 7), the court held that the relevant remarks—which

involved a repeated, explicit slur that disparaged the

employer because of his religion and an insinuation of

racial prejudice—were “so inflammatory and derogatory

that they inflamed racial and religious tensions” against

the employer’s owner. 818 F.2d at 1573. Nothing in the

court’s opinion suggests that it relieved the objecting

party of the burden of proving that the racial or reli-

gious remarks were inflammatory. Indeed, to the extent

that the court addressed the burden of proof at all, it

reaffirmed that, even in the context of claimed objection-

able religious or racial remarks, the party objecting to

the election bears the “heavy burden” of proving preju-

dice to the fairness of the election. /bid.

Petitioner’s reliance (Pet. 6-7) on the Seventh Cir-

cuit’s decision in NLRB v. Katz, 701 F.2d 703 (1983), is

also mistaken. Petitioner mischaracterizes the decision

as holding that the religious remarks were “impermissi-

ble, because they were not germane to any legitimate

issue in the campaign.” Pet. 6. As the Seventh Circuit

has subsequently explained, Aatz turned on the exis-

tence of multiple religious and racial “inflammatory ap-

peals,” which were “central to the union campaign.”

State Bank of India v. NLRB, 808 F.2d 526, 542 (1986),

10

cert. denied, 483 U.S. 1005 (4987). Thus, the Seventh

Circuit found that the union’s religious and racial ap-

peals were both inflammatory and at the core of the

campaign, as well as irrelevant. And at no point did the

court discuss the burden-shifting issue. See Katz, 701

F.2d at 706-708.

The Fourth Circuit’s decision in NLRB v. Schapiro

& Whitehouse, Inc., 356 F.2d 675 (1966) (cited at Pet. 7),

is similarly inapposite. The court in that case held that

a union’s racial appeals were “highly inflammatory” and

irrelevant, and, like the Seventh and Eleventh Circuits,

it did not discuss the burden-shifting issue. 356 F.2d at

678-679. Moreover, the Fourth Circuit’s recent compre-

hensive discussion of the burden-shifting framework

shows that it follows the same approach as the court of

appeals here. See Case Farms of N.C., Inc., 128 F.3d at

845-846.

ec. Petitioner also incorrectly asserts (Pet. 2, 4-5, 8,

9, 11) that the court of appeals’ decision conflicts with

the Board’s decision in Sewell. Petitioner contends that

Sewell establishes a per se rule that “germaneness must

be considered” and that, “regardless of whether the reli-

gious message is inflammatory, if it is not germane it is

not permitted.” Pet. 5. Petitioner misreads Sewell.

Although Sewell stated that a party that has made an

inflammatory religious or racial remark bears the bur-

den of establishing that the message was germane,

Sewell did not go so far as to establish the per se rule

petitioner claims. Sewell does not require that all refer-

ences with racial or religious overtones be excluded

from campaigns, but prohibits only appeals to animosity

and prejudice that are inflammatory or form the core or

theme of a party’s campaign. See Sewell, 138 N.L.R.B.

at 70-71 (recognizing that some appeals to race are an

11

inevitable part of an election campaign and distinguish-

ing a “deliberate, sustained appeal to racial prejudice”

from a “single, casual” reference). As subsequent cases

have clarified, and as the Board explained here, the

Board will not overturn elections “on the basis of com-

ments with racial or religious|| overtones, even when

they were inaccurate or gratuitous, when the comments

[ajre not inflammatory or part of a sustained, persistent

attempt to appeal to the racial or religious prejudices of

eligible voters.” Pet. App. 40a. See, e.g., Catherine’s,

Inc., 316 N.L.R.B. 186, 186 (1995) (union’s “gratuitous

comments” about religion of company’s owner and its

law firm, while “not germane” to organizing campaign,

did not warrant setting aside election, because state-

ments “were isolated and lacked inflammatory appeal”).

2. Petitioner also contends that this Court should

grant certiorari to make clear that the “rule should be

that the burden is on the party making use of a racial or

religious message to establish that it was germane, and

that if that party cannot do so, the election will be set

aside.” Pet. 11 (emphasis altered). Such a rule would,

petitioner asserts, send the “strongest message” that

racial and religious statements in an election campaign

will not be tolerated. /bid. Petitioner’s policy-based

argument for a per se rule, which has not been accepted

by any court of appeals, does not warrant this Court’s

review.

Petitioner’s argument ignores this Court’s longstand-

ing recognition that Congress entrusted the Board “with

a wide degree of discretion in establishing the procedure

and safeguards necessary to insure the fair and free

choice of bargaining representatives by employees.”

NLRB v.A. J. Tower Co., 329 U.S. 324, 330 (1946). Ex-

ercising that broad discretion, the Board has eschewed

12

the rigid approach embodied in petitioner’s proposed

per se rule, instead applying a more flexible approach

that recognizes the practical realities of representation

campaigns and elections. The Board’s approach prohib-

its serious or sustained attempts to exacerbate racial

and religious tensions, but avoids setting standards “so

high that for practical purposes elections could not ef-

fectively be conducted.” Sewell, 188 N.L.R.B. at 70.

The court of appeals correctly determined that the

Board’s approach is a reasonable exercise of its broad

discretion. Petitioner identifies no reason for this Court

to review that determination.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

RONALD MEISBURG Solicitor General

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

JOHN H. FERGUSON

Associate General Counsel

LINDA DREEBEN

Assistant General Counsel

DAVID HABENSTREIT

Supervisory Attorney

JEFF BARHAM

Attorney

National Labor Relations

Board

JANUARY 2007