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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1567%3A2. Public record. Not legal advice.