Honeyville Grain, Inc. v. NLRB - Opposition

Docket number: 
No. 06-482
Supreme Court Term: 
2006 Term
Court Level: 
Supreme Court

No. 06-482

In the Supreme Court of the United 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
Washington, D.C. 20530-0001
(202) 514-2217

RONALD MEISBURG
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
Washington, D.C. 20570

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.

In the Supreme Court of the United States

No. 06-482

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

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-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., 138 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." Id. 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 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, AFL-CIO (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 ballot election among eligible employees. The Union 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. Id. at 36a-37a.

The Board adopted the hearing officer's findings and recommendations and certified the Union as the exclu 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." Id. 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." Id. 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, reli gion was "neither the core nor the theme of the cam paign." Ibid. Further, the Board found, the evidence did not demonstrate the existence of a "calculated at tempt to so inflame religious prejudice that the employ ees would vote against [petitioner] on religious grounds alone." Ibid. 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. Id. 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. Id. at 26a-35a.

3. The court of appeals enforced the Board's order. Pet. App. 1a-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. Id. 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 that have explicitly discussed a party's initial burden when challenging pre-election racial and religious re marks." Id. at 11a.

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. 11a. 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." Id. 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. 21a- 24a. The dissent did not disagree, however, with the general burden-shifting approach adopted by the major ity. See ibid.

The court of appeals denied petitioner's petition for rehearing en banc. 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. Ibid.

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); KI (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 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 v. Dixon Indus., Inc., 700 F.2d 595, 599 (10th Cir. 1983); see NLRB v. 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 NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 707-708 (4th Cir. 1999); Uniroyal Tech. Corp. v. NLRB, 98 F.3d 993, 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. 11a; 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 tensions."). Only at that point did the court in Silverman's conclude that "the burden of establishing the legitimacy of the remark shifted to the Union." Ibid. (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. Ibid.

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, Katz 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), cert. denied, 483 U.S. 1005 (1987). 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.

c. 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 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 [a]re 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. Ibid. 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 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, 138 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
Solicitor General

RONALD MEISBURG
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

Type: 
Petition Stage Response
Updated October 21, 2014