NATIONAL LABOR RELATIONS BOARD, PETITIONER V. HEARTLAND FOOD WAREHOUSE, A DIVISION OF PURITY SUPREME SUPERMARKETS No. 82-736 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-9a) is reported at 685 F.2d 421. The decision and order of the National Labor Relations Board (App. C, infra, 11a-18a) and the decision of the administrative law judge (App. C, infra, 19a-34a) are reported at 256 N.L.R.B. 940. JURISDICTION The judgment of the court of appeals (App. B, infra, 10a) was entered on June 1, 1982. On August 19, 1982, Justice Brennan extended the time in which to file a petition for a writ of certiorari to and including October 29, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 7 of the National Labor Relations Act, 29 U.S.C. 157, provides in part: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *. Section 8(a) of the National Labor Relations Act, 29 U.S.C. 158(a), provides in part: It shall be an unfair labor practice for an employer -- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section (7) of this title; * * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *. Section 10(c) of the National Labor Relations Act, 29 U.S.C. 160(c), provides in part: * * * If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this (Act): * * * No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause * * *. QUESTION PRESENTED Whether the National Labor Relations Board properly concluded that an employer violates Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. 158(a)(3), if its hostility to certain employees' protected concerted activity is shown, by a preponderance of the evidence, to be a motivating factor in its decision to lay off those employees, and the employer cannot establish by a preponderance of the evidence that it would have taken the same action for legitimate reasons, absent the employees' concerted activities. STATEMENT 1. Respondent operates a number of retail grocery stores in New England, including stores at Newington and Vernon, Connecticut. When the Vernon store opened in October 1978, the union /1/ picketed both stores for two days, informing the public that the stores were non-union (App. C, infra, 20a-21a). Respondent's Vice President for Industrial Relations, Brown, testified that at approximately the same time he told the Vernon employees that he "hoped (the store) would remain nonunion" (Tr. 246, 244). The following summer of 1979, meatcutters Barile and Carroll sought to initiate a union organizational drive (App. C, infra, 21a). On September 14, 1979, Barile also approached Store Manager Boyle and asked that a meeting be held between Boyle and the employees in the meat department to air grievances. Carroll made a similar request. Boyle agreed to a meeting, and promptly informed his supervisor, District Manager DeLuca (id. at 21a-22a). The meeting was held the next day, a Saturday; Barile and Carroll were the most vociferous in complaining about managerial conduct, including certain of Boyle's practices concerning overtime (ibid.). After the meeting, Boyle reported to DeLuca what had occurred. The following Monday, September 17, DeLuca, in turn, reported the events to his supervisors, including Vice President Brown, noting that Boyle had violated company overtime policy and that this "was the kind of thing that * * * would probably end up in people asking other questions" (Tr. 498). DeLuca and Brown decided to go to Vernon and meet with the meat department employees, and they did so on October 4. At that meeting, Brown emphasized to the employees that they did not need a "third party" to speak for them. Although Brown did not use the word "union," it was clear -- and Brown subsequently acknowledged -- that he was referring to the union (App. C, infra, 13a, 22a-23a). Meanwhile, on September 6, DeLuca had sent a memorandum to Vice President O'Brien stating that because of low sales volume, it might be necessary to eliminate two full-time meatcutters at both the Newington store and the Vernon store (App. C, infra, 24a). Later that month, DeLuca asked his subordinate supervisors to rank the five Vernon meatcutters in anticipation of possible layoffs. Although none of the meatcutters was considered deficient -- and Boyle acknowledged that Barile and Carroll were "good" meatcutters -- Barile and Carroll were ranked fourth and fifth (id. at 24a). At no time did DeLuca request rankings of the ten Newington cutters in comparison either to the Vernon cutters or to each other (id. at 24a, 26a). On October 29, DeLuca reported in another memorandum to O'Brien that sales were up at both Newington and Vernon, and that it would be necessary to eliminate only 40 hours of cutter time at each store, rather than the 80 hours he had previously thought necessary. But instead of laying off one meatcutter from each store, DeLuca recommended that two Vernon cutters be laid off and one Newington cutter be transferred to Vernon. O'Brien agreed, and DeLuca ordered the layoffs of Barile and Carroll. DeLuca transferred Nasuti -- a newly-certified meatcutter who was less experienced than either Barile or Carroll, and who had failed the certification test earlier that year before passing it on his second attempt -- from Newington to Vernon (App. C, infra, 14a, 24a-25a). While part-time employees had previously been laid off at Vernon, no full-time employees had ever before been laid off; instead, respondent's policy was to give full-time employees an opportunity to transfer to other departments or to Newington (id. at 26a-27a). Barile and Carroll were not given such an opportunity (id. at 27a). 2. The Board, accepting the finding of the administrative law judge, concluded that respondent had selected Barile and Carroll for layoff "because of their participation in * * * concerted activities" protected by Section 7 of the National Labor Relations Act, 29 U.S.C. 157 (App. C, infra, 12a), and therefore had violated Sections 8(a)(3) and (1) of the Act, 29 U.S.C. 158(a)(3), and (1). The Board ordered that Barile and Carroll be reinstated with back pay (App. C, infra, 15a-16a). In reaching this conclusion, the Board explicitly relied (App. C, infra, at 12a) on its decision in Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). There the Board explained that, in determining whether an employer's action violated Section 8(a)(3), it would first require the General Counsel to show that the employee's protected activities were a "motivating factor" in the employer's decision to take adverse action against the employee. If the General Counsel made this showing, the Board ruled -- explicitly following this Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) -- that the employer could avoid an unfair labor practice finding only if it proved, by a preponderance of the evidence, that the adverse action would have been taken even if the employee had not engaged in protected activities. 251 N.L.R.B. at 1089. Here, the Board, after reviewing the evidence, found that respondent's "knowledge of the protected activities of Carroll and Barile as leaders in the presentation of employee grievances, and its fear that their activities might culminate in a union drive, were factors in their selection for discharge" (App. C, infra, 13a), and that the General Counsel had therefore met his burden under the Board's Wright Line test. The Board then turned to respondent's proffered reasons for discharging Barile and Carroll and concluded that those reasons were "incompatible with (respondent's) actions both prior to and following their termination" (App. C, infra, 14a). The Board noted, in particular, respondent's decision to transfer a less experienced and less able meatcutter from Newington to Vernon to replace Carroll and Barile, and its deviation from its policy of allowing full-time employees to transfer instead of being laid off (id. at 14a-15a). The Board also pointed out that although respondent "contends that it had economic problems in both its Vernon and Newington stores it made no attempt to rate the meatcutters in Newington," where, in contrast to Vernon, there was no "employee unrest" (id. at 14a). 3. The court of appeals, which had previously stated that it disagreed with the Board's Wright Line test, refused to enforce the Board's order. The court noted that it had previously ruled that even after the General Counsel proved that an improper purpose was a motivating factor, "the employer must only carry a burden of production" (App. A, infra, 3a; emphasis in original). The court therefore concluded that "the Board applied an incorrect legal standard to the facts" of this case (ibid.) and explained that "it has been our practice to remand cases decided under the Board's improper standard whenever it appears to us that the case was close enough that 'burdens of proof' may have affected the conclusion of the case" (id. at 4a). After examining the evidence, the court concluded that if the Board had applied the standard prescribed by the court, it might have reached a different conclusion, although it was not required to do so (id. at 8a). The court accordingly vacated the Board's decision and remanded the case for further proceedings (App. B, infra, 10a). REASONS FOR GRANTING THE PETITION In NLRB v. Transportation Management Corp., petition for cert. pending, No. 82-168 (filed July 30, 1982), we have sought review of another First Circuit decision rejecting the burden-shifting aspect of the Board's Wright Line test. /2/ We urge that the First Circuit's decisions conflict with the decisions of several other courts of appeals, and that the Board's Wright Line test is fully consistent with the National Labor Relations Act. Here, the court of appeals expressly reaffirmed its disapproval of the Board's Wright Line test (App. A, infra, 3a) /3/ in concluding that only the burden of production, not the burden of persuasion, could shift to respondent. Moreover, the court specifically concluded that the allocation of the burdens of proof was material to this case. This case therefore presents the same issue that we raise in our petition in Transportation Management. CONCLUSION The petition for a writ of certiorari should be held and disposed of in light of the disposition of NLRB v. Transportation Management Corp., No. 82-168. Respectfully submitted. REX E. LEE Solicitor General WILLIAM A. LUBBERS 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 DAVID S. FISHBACK Attorney National Labor Relations Board OCTOBER 1982 /1/ United Food & Commercial Workers Union, Local 371, AFL-CIO. /2/ A copy of our petition in Transportation Management has been sent to respondent. /3/ The First Circuit initially expressed its disapproval of the Board's Wright Line test in the proceedings to review the Wright Line order. 662 F.2d at 904-907. (Because the First Circuit believed that the shifting of the burden of proof was not material to the outcome of Wright Line itself, it enforced the Board's order in that case (id. at 907-909)). In both this case (see App. A, infra, 3a-4a) and Transportation Management (see 82-168 Pet. App. 3a), the First Circuit relied on its discussion in the Wright Line case. Appendix Omitted