SELIGMAN & ASSOCIATES, INC., PETITIONER V. NATIONAL LABOR RELATIONS BOARD No. 87-742 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the Respondent in Opposition TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-26) is reported at 808 F.2d 1155. The supplemental decision and order of the National Labor Relations Board (Pet. App. 27-38), including the decision and recommended order of the administrative law judge (Pet. App. 39-59), is reported at 273 N.L.R.B. 1216. A prior opinion of the court of appeals, enforcing the Board's order in the underlying unfair labor practice proceeding, is reported at 639 F.2d 307, cert. denied, 454 U.S. 838 (1981). The Board's decision and order in the unfair labor practice proceeding is reported at 240 N.L.R.B. 110 (1979). JURISDICTION The judgment of the court of appeals (Pet. App. 61-62) was entered on December 30, 1986. An order denying a petition for rehearing was entered on July 28, 1987 (Pet. App. 65). The petition for a writ of certiorari was filed on October 26, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the National Labor Relations Board properly found that petitioner failed to make an unconditional offer of reinstatement to employees whom it had previously discharged unlawfully, and that its backpay liability therefore should not be tolled. STATEMENT 1. Petitioner, Seligman & Associates, Inc., operates a number of apartment complexes in the Detroit, Michigan area (Pet. App. 1). Prior to October 7, 1976, it employed Susan and David Younce as the caretakers of its Eureka Apartments complex (id. at 2). As compensation, it provided the Younces with both salaries and an apartment in the comples (ibid.). On October 7, 1976, petitioner discharged the Younces and, approximately two weeks after that, sent the Younces a notice to quit the apartment (Pet. App. 2, 43). Susan Younce, however, filed an unfair labor practice charge with the National Labor Relations Board (Board) and, on the advice of its counsel, Irwin Alterman, petitioner decided to offer a settlement to the Younces consisting of (a) reinstatement at its Utica Green apartment complex, which is some 30 to 50 miles away from the Eureka Apartments, and (b) full backpay, less interim earnings (id. at 2, 43-44). Alterman contacted Board agent Whiteman, who had been asigned to the case, and asked him to convey petitioner's settlement offer to the Younces (id. at 2). Whiteman telephoned Susan Younce and asked her, "If (petitioner) offered you your job back with backpay, would you take it?" (ibid.). Younce replied that she would not do so (ibid.). Whiteman, in turn, telephoned Alterman and advised that the Younces did not want their jobs back (id. at 3). In early November 1976, while her husband and three children were ill with the flu, Susan Younce contacted Scott Seligman, the son of petitioner's owner, and asked whether she and her family could remain in the apartment as paying tenants (Pet. App. 3). Scott Seligman replied that they could do so, provided that she dropped her unfair labor practice charge (ibid.). Accordingly, on November 8, 1976, Susan Younce told Board agent Whiteman that she wanted to drop the charge (ibid.). Whiteman advised against doing so, but informed her that, is she wanted to relinquish the claim, she would have to do so in writing (ibid.). Younce relayed this information to Scott Seligman, who instructed her to obtain a withdrawal request form from the Board and to go to Alterman's office to sign a lease (ibid.). Before Younce could meet with Alterman, however, the Younces received another eviction notice (Pet. App. 3). Accordingly, Susan Younce was quite nervous and upset when she met with Alterman the next day (id. at 3-4). Alterman informed her that, in order to obtain a lease, she would have to sign an affidavit describing her attempts to withdraw her unfair labor practice charge (ibid.). He then dictated an affidavit and a letter withdrawing the charge, both of which Susan Younce agreed to sign (ibid.). In addition, she indicated that she was not interested in reinstatement (id. at 30). 2. The General Counsel of the Board subsequently filed an unfair labor practice complaint against petitioner based on a later unfair labor practice charge filed by David Younce (Pet. App. 30, 47). On the basis of this complaint, the Board found that petitioner had discharged the Younces in retaliation for activity protected by Section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. 158(a)(1). See Seligman & Associates, Inc., 240 N.L.R.B. 110, 114-116 (1979). The Board ordered petitioner to offer the Younces "reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs," and to make them whole for losses they suffered as a result of their discriminatory discharges (id. at 123). This order was enforced on appeal (639 F.2d 307, cert. denied, 454 U.S. 838 (1981)). In the related compliance proceeding, the Board, with one member dissenting, rejected petitioner's contention that it had made a valid reinstatement offer to the Younces which they had rejected, thus tolling further backpay liability (Pet. App. 27-38). The Board agreed with the finding of an administrative law judge that "there is no credible evidence that (petitioner) ever made a legitimate reinstatement offer to the Younces" (id. at 31), noting that "the reinstatement offer received by Susan Younce from Board agent Whiteman was hypothetical, and therefore did not provide her with the opportunity to make a considered choice whether to accept reinstatement" (id. at 30), that "the Younces were offered similar but not equivalent jobs at the (petitioner's) Utica Green apartment complex, not the Eureka complex where they had worked prior to their unlawful discharge, and such offers of work at a different location and for different management are not sufficient to toll backpay" (ibid. (footnote omitted)), and that petitioner, "by electing to convey its restatement offer through (the) Board agent instead of proffering it directly, is bound by any resulting confusion" (ibid.). The Board also rejected the view of its dissenting member that Susan Younce had renounced any interest in reinstatement during her meeting with attorney Alterman (id. at 31); it found that her "statement that she did not want to be reinstated was made under coercive circumstances" (id. at 32) and that she therefore "did not voluntarily reject * * * a proper offer" (ibid.). The Board ordered petitioner to pay $27,557.96 in backpay to the Younces (id. at 53-56). 3. The court of appeals enforced the Board's order in pertinent part (Pet. App. 1-26). /1/ Initially, it noted that petitioner's offer to the Younces of reinstatement at the Utica Green complex, instead of employment at the Eureka Apartments, did not satisfy the terms of the Board's prior order that petitioner offer the Younces reinstatement to their former jobs, unless those jobs were no longer in existence; the court concluded that "(t)he conditional offer of alternative employment, therefore, could not have tolled (petitioner's) backpay obilgation" (id. at 8). The court also noted that "Whiteman's comments in relaying (petitioner's) offer did not 'establish() unequivocally that * * * there (was) a position (and) that the job was immediately available'" (id. at 10 (citation omitted)); moreover, citing this Court's decision in NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969), it said that "the burden of Board errors" must be borne by the employer (Pet. App. 11). Finally, it agreed that neither "Susan Younce's refusal of the offer as conveyed by Board agent Whiteman (n)or her subsequent repudiation of any desire to seek reinstatement" constituted an effective waiver of reinstatement rights (id. at 12), reasoning, with respect to the first point, that "an employee is under no obligation to decide whether to accept reinstatement until an unconditional offer of reinstatement is made" (id. at 14), and, with respect to the second point, that "substantial evidence supports the Board's findings that Susan Younce's conduct at that period did not amount to a waiver of the parties' right to reinstatement" (id. at 16). ARGUMENT The decision below is correct. It does not conflict with any decision of this Court or of any other court of appeals. Accordingly, review by this Court is not warranted. 1. Section 10(c) of the Act vests the Board with remedial authority to expunge the effects of unfair labor practices, including the power to order "such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of (the Act)" (29 U.S.C. 160 (c)). "Reinstatement is the conventional correction for discriminatory discharges" (Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187 (1941)). The Board, therefore, with approval of the courts, has long held that, unless and until a discriminatee receives an unequivocal offer of reinstatement to his or her former job (assuming that it is available), any attempt by the discriminatee to waive reinstatement will be deemed ineffective and backpay will continue to accrue until a valid offer is made. See Don Pizzolato, Inc., 249 N.L.R.B. 953, 956 (1980); Heinrich Motors, Inc., 166 N.L.R.B. 783, 785-786 (1967), enforced, 403 F.2d 145, 150 (2d Cir. 1968); W. C. McQuaide, Inc., 239 N.L.R.B. 671 (1978), enforced, 617 F.2d 349 (3d Cir. 1980); Lyman Steel Co., 246 N.L.R.B. 712, 714 (1979); Dobbs Houses, 182 N.L.R.B. 675, 681-682 (1970); Lipman Bros., 164 N.L.R.B. 850, 853 (1967). The decision below follows directly from these well settled principles. The Board found, and the court below agreed, that petitioner's offer of reinstatement to Susan Younce through Board agent Whiteman was hypothetical in nature, that the offer of reinstatement involved a different position at a location some 30 to 50 miles from the Younces' previous place of employment (even though their former jobs were still available), and that petitioner coerced Susan Younce into expressing disinterest in reinstatement by threatening to evict her family from its apartment and by insisting that withdrawal of her unfair labor practice charge was the price for obtaining a rental apartment. In these circumstances, it was clearly within the discretion of the Board to hold that petitioner's backpay liability was not tolled. 2. Petitioner does not deny that it never offered the Younces reinstatement to their former position at the Eureka Apartments or that the offer conveyed to the Younces by Board agent Whiteman was only hypothetical. Rather, petitioner's basic objection is (Pet. 6-8) that it should not be made to suffer the detrimental effects of Board agent Whiteman's erroneous transmission of the non-hypothetical offer that petitioner actually conveyed to him. As the court below recognized (Pet. App. 11), however, this Court's decision in NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969), is dispositive of that objection. In Rutter-Rex Mfg. Co., the Court faced the question whether the Board may be required to reduce backpay liability that is attributable to delay on the question whether the Board may be required to reduce backpay liability that is attributable to delay on the Board's part in issuing backpay specifications. The Court held that "the Board is not required to place the consequences of its own delay, even if inordinate, upon (the) wronged employees to the benefit of wrongdoing employers" (id. at 265). Similarly, the Board is not required to place the consequences of its agents' misstatements upon the wronged employees to the benefit of wrongdoing employers. Moreover, as both the Board (Pet. App. 30) and the court of appeals (id. at 11-12) noted, petitioner selected the Board's agent as its messenger and, as between petitioner and its wronged employees, petitioner is responsible for the fact that the message went partly astray. 3. There is no merit to petitioner's contention (Pet. 7-10) that the decision below conflicts with the decision of the District of Columbia Circuit in Consolidated Freightways v. NLRB, 669 F.2d 790 (1981). In that case, the Board refused to consider the employer's contention that, although its offer of reinstatement was invalidly conditioned, its backpay liability was nonetheless tolled because the discriminatee had rejected the offer for another reason (which he had no right to assert); the Board ruled that it would not consider the contention because the employer had not filed exceptions to the ALJ'S ruling on this issue. The court of appeals, however, found that the issue had indeed been raised before the Board and that Board precedent did not consistently resolve whether an employee's reasons for refusing an invalid offer of reinstatement are relevant to the determination of an employer's backpay liability (669 F.2d at 795). Accordingly, the court remanded the case to the Board to "explicate the circumstances, if any, under which an inquiry into whether an employee would have rejected a valid offer of reinstatement is proper" (id. at 798 (emphasis added; footnote omitted)). In this case, the Board has made clear that "only when a proper offer is made and unequivocally rejected by the employees is the employer's backpay obligation tolled"; the employee's reasons for rejecting an invalid offer are not relevant (Pet. App. 31 (footnote omitted)). Thus, the decision below merely answers the question posed by the court of appeals in Consolidated Freightways. /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General ROSEMARY M. COLLYER General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel CARMEL P. EBB Attorney National Labor Relations Board DECEMBER 1987 /1/ The Board had rejected petitioner's contention that the Younces failed to mitigate backpay liability by not seeking substantially equivalent employment which was readily available (Pet. App. 49-53). The court of appeals disagreed with this aspect of the Board's decision and remanded the case for recomputation of the backpay award (id. at 17-26). /2/ Petitioner similarly errs in suggesting (Pet. 8-10) that the decision in Heinrich Motors, Inc. v. NLRB, 403 F.2d 145 (2d Cir. 1968), makes an employee's reasons for rejecting an invalid offer relevant to the tolling question. The court in Heinrich Motors in fact enforced a Board order applying the same rule that was applied in this case. See 166 N.L.R.B. at 785-786, enforced, 403 F.2d at 150.