NATIONAL LABOR RELATIONS BOARD, PETITIONER V. UNITED PARCEL SERVICE, INC. No. 83-453 In the Supreme Court of the United States October Term, 1983 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 Third Circuit in this case. Petition for a writ of Certiorari to the United States Court of Appeals for the Third 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-29a) is reported at 706 F.2d 972. The decision and order of the National Labor Relations Board (App. C, infra, 34a-40a) and the decision of the administrative law judge (App. C, infra, 41a-87a) are reported at 261 N.L.R.B. 1012. JURISDICTION The judgment of the court of appeals (App. B, infra, 30a-33a) was entered on May 17, 1983. On August 5, 1983, Justice White extended the time for filing a petition for a writ of certiorari to and including September 17, 1983. 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 (Act); * * * * * (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 * * *. * * * * * (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this (Act); * * * * * QUESTION PRESENTED Whether the National Labor Relations Board properly concluded that an employer violates Section 8(a)(1), (3), and (4) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), (3), and (4), if its hostility to certain employees' protected concerted activities is shown, by a preponderance of the evidence, to be a motivating factor in its decision to discharge 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' protected activities. STATEMENT 1. a. Robert Bowlds began work in 1965 at respondent's Owensboro, Kentucky terminal as a feeder driver transporting packages to and from respondent's Nashville, Tennessee terminal. Bowlds was active in various efforts to improve working conditions at respondent's terminals. He served as a Teamsters steward at the Owensboro terminal, /1/ filed numerous grievances, and participated in many grievance hearings. Beginning in 1976 and 1977, respectively, Bowlds distributed literature from two organizations, UPSurge and PROD, /2/ on a regular basis at the Owensboro terminal. In March 1977, Bowlds initiated a class action suit against respondent, alleging that it had violated a Kentucky statute requiring certain rest breaks. In connection with the suit, Bowlds solicited drivers to join as plaintiffs and to contribute funds for attorney's fees. App. C, infra, 43a, 46a-47a. On April 24, 1978, respondent discharged Bowlds, allegedly because he had taken excessive breaks from his work and falsified his timecards. Following a contractual grievance proceeding, a grievance panel ordered respondent to reduce Bowlds' discharge to a suspension and to reinstate him. On May 24, 1978, respondent gave Bowlds a final warning, allegedly for taking excessive breaks. App. A, infra, 3a-4a; App. C, infra, 45a-46a. Following another grievance proceeding, respondent was required to rescind the warning. On August 4, 1978, respondent dscharged Bowlds for a second time, again claiming that he had overextended his breaks and falsified his timecards. A grievance panel later reduced the discharge to a suspension and final warning. App. A, infra, 3a-4a; App. C, infra, 46a. Bowlds filed a charge with the National Labor Relations Board concerning the May 24 warning and the August 4 discharge, and the Board's General Counsel filed a complaint based on the charge. The Board, upheld by the Sixth Circuit, found that the warning and discharge were motivated by Bowlds' exercise of protected activity and thus violated Section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. 158(a)(3) and (1). The Board awarded back pay to Bowlds and ordered respondent, inter alia, to rescind the warning notice. United Parcel Service, Inc., 252 N.L.R.B. 1015 (1980), enforced, 677 F.2d 421 (6th Cir. 1982). In August 1979, while the 1978 unfair labor practice proceedings were pending before the Board, respondent again discharged Bowlds. In July and August of 1979, respondent allegedly became concerned again about Bowlds' late arrivals and had him followed during a run on August 27-28. Respondent claimed that Bowlds had overextended his rest breaks on that trip by 43 minutes and had falsified his timecard. It suspended Bowlds on August 28 and discharged him on August 31. A grievance panel eventually upheld the discharge. App. C, infra, 49a-56a. b. David Perkins began work at respondent's Campbellsville, Kentucky terminal in 1971. Perkins transported packages from Campbellsville to the Nashville, Tennessee terminal. On return trips he drove from Nashville to an intermediate stop at respondent's Bowling Green, Kentucky terminal and then returned to the Campbellsville terminal. App. C, infra, 56a. Beginning in October 1976, Perkins solicited employee contributions and signatures in support of Bowlds' class action regarding rest breaks. In 1979, Perkins testified in support of Bowlds at the unfair labor practice hearing before the Board (see page 4, supra). On several occasions Perkins distributed UPSurge or PROD literature at the Campbellsville terminal. App. C, infra, 59a. Terminal Manager Mouser warned Perkins not to distribute such literature (ibid.). On February 14, 1979, Perkins filed a grievance alleging that respondent had failed to assign him sufficient work; the grievance was resolved against Perkins (App. A, infra, 5a). Later that month, Perkins asked Terminal Manager Mouser for additional trousers to complete his company-issued uniform. Mouser refused, stating: "Perkins, we're trying to figure out a way to fire your ass anyway. We won't have to get you any (trousers)." Ibid. Respondent suspended Perkins on August 28 and discharged him on August 30, 1979. Respondent claimed that on the night shift of August 27-28, 1979, Perkins overextended his rest breaks and falsified his timecard while driving between the Campbellsville and Nashville terminals. A grievance panel later ordered Perkins reinstated without backpay. App. C, infra, 58a, 61a-62a. 2. The Board, affirming the decision of the administrative law judge ("ALJ"), found that protected activity by Bowlds and Perkins was the motivating cause of their discharges and that respondent therefore violated Section 8(a)(1), (3) and (4) of the Act, 29 U.S.C. 158(a)(1), (3) and (4). /3/ App. C, infra, 34a-87a. The ALJ found that the General Counsel had established that protected activity was the motivating factor in the discharges of Bowlds and Perkins and that respondent had "failed to demonstrate that such actions would have taken place in the absence of the protected conduct" (id. at 81a). In rejecting respondent's contention that Bowlds and Perkins were discharged because of alleged excessive breaks and falsified timecards, the ALJ noted that the two employees were subjected to extraordinary surveillance at a time when they were known to have been engaged in protected concerted activity and that both employees appeared to have satisfactory records of punctuality (App. C, infra, 74a-81a). He further found that respondent's allegation that Bowlds and Perkins had overstayed rest stops and falsified their timecards was contradicted by the record evidence and that Perkins' late arrival at the conclusion of his run was the result of delayed departures that were not his fault (id. at 77a, 80a-81a). 3. The court of appeals affirmed (App. A, infra, 1a-29a). It concluded that the General Counsel had presented sufficient evidence to support the inference that protected conduct was a motivating factor in respondent's decision to discharge Bowlds and Perkins. The court stated (id. at 23a; footnote omitted): The General Counsel produced evidence that UPS knew that Bowlds and Perkins were involved in widespread protected activity, including organizing efforts for UPSurge. The General Counsel also presented evidence that Bowlds and Perkins, at the time of their discharges, were involved in another unfair labor practice proceeding concerning alleged discrimination for union activity. Bowlds and Perkins both testified that, contrary to reports by UPS's supervisors, they did not overextend their breaks on the night of August 27-28. Evidence corroborating their testimony was introduced by the General Counsel. However, the court of appeals refused to enforce the Board's order, relying on its earlier decisions in Behring International, Inc. v. NLRB, 675 F.2d 83, 90 (3d Cir. 1982), vacated and remanded, No. 82-438 (June 20, 1983), enforced after remand, No. 81-1937 (3d Cir. Aug. 17, 1983), and NLRB v. Blackstone Co., 685 F.2d 102, 104-106 (3d Cir. 1982), vacated and remanded, No. 81-1105 (June 20, 1983), enforced after remand, No. 81-3132 (3d Cir. Sept. 7, 1983). In Behring and Blackstone, the court of appeals had rejected the Board's Wright Line allocation of the burden of proof in dual motive cases. 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), the Board had explained that, in determining whether an employer's action violated Section 8(a)(3) of the Act, 29 U.S.C. 158(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 that the employer nevertheless could avoid an unfair labor practice finding if it proved, by a preponderance of the evidence, that it would have taken the adverse action even if the employee had not engaged in protected activities. 251 N.L.R.B. at 1089. In the court's view, the Board "misallocated the burden of persuasion" by "shift(ing) to UPS the burden of proving that the discharges would have taken place in the absence of any protected conduct" (App. A, infra, 25a). Accordingly, the court remanded the case to the Board for application of an alternative burden-shifting test it had prescribed in Behring and Blackstone (App. A, infra, 25a-26a). REASONS FOR GRANTING THE PETITION The court of appeals concluded that this case should be remanded to the Board because the court disagreed with the Board's allocation of the burden of proof in dual motive cases, set out in Wright Line, a Division of Wright Line, Inc., supra. This Court recently upheld the Board's Wright Line allocation in NLRB v. Transportation Management Corp., No. 82-168 (June 15, 1983). Soon thereafter, the Court vacated the judgments in Behring International v. NLRB, supra, and NLRB v. Blackstone Co., supra, on which the court below relied in this case, and remanded for further consideration in light of the decision in Transportation Management. NLRB v. Behring International, Inc., No. 82-438 (June 20, 1983); NLRB v. Blackstone Co., No. 82-1105 (June 20, 1983). Because the court of appeals relied on a view of the law that this Court subsequently found to be erroneous, its judgment should be vacated and the case should be remanded to the court of appeals for further consideration in light of the Court's decision in Transportation Management. This disposition would be consistent with the Court's prior disposition of the petitions in Behring International and Blackstone Co. /4/ CONCLUSION The petition for a writ of certiorari should be granted, the judgment of the court of appeals should be vacated, and the case should be remanded to the court of appeals for further consideration in light of NLRB v. Transportation Management Corp., No. 82-168 (June 15, 1983). 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 JOSEPH A. OERTEL Attorney National Labor Relations Board SEPTEMBER 1983 /1/ During the relevant period, Teamsters Local 89, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America represented respondent's drivers (App. C, infra, 42a, 46a n.1). /2/ UPSurge is a nationwide organization of respondent's employees dedicated to improving working conditions. PROD is an organization of Teamsters members with a similar goal. App. A, infra, 2a-3a; App. C, infra, 47a. /3/ The ALJ rejected respondent's contention that the Board should defer to the grievance awards that had sustained Bowlds' discharge and had ordered Perkins reinstated without backpay. The ALJ concluded that deferral would be unwarranted because the unfair labor practice issue had not been presented to, or decided by, the grievance panels. App. C, infra, 67a-69a. The court of appeals concluded that the Board did not abuse its discretion in refusing to defer to the grievance panels (App. A, infra, 18a-21a). On July 15, 1983, respondent petitioned for a writ of certiorari on the issue of the Board's refusal to defer to the grievance panels (No. 83-71). We are addressing the issues raised in No. 83-71 in a separate filing. The Board also found that respondent violated Section 8(a)(1) of the Act, 29 U.S.C. 158(a)(1), by maintaining and enforcing a rule that prohibited distribution of UPSurge literature by employees during nonworking time (App. C, infra, 35a n.3). The court of appeals upheld this finding (App. A, infra, 11a-16a), and no issue concerning it is raised here. /4/ On June 24, 1983, the Board filed a motion to vacate judgment in light of Transportation Management in the court of appeals. The court of appeals has not yet acted on that motion, and it appears to be deferring consideration of the motion pending this Court's disposition of respondent's petition for a writ of certiorari in No. 83-71. If the court of appeals should afford appropriate relief in the meantime, we will notify the Court and withdraw this petition. Appendix Omitted