Reply – Re: RAYMOND INTERIOR SYSTEMS
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Re: RAYMOND INTERIOR SYSTEMS
— by Ted Ted
Filed December 12, 2012

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
RAYMOND INTERIOR SYSTEMS, INC.; )
SOUTHWEST REGIONAL COUNCIL )
OF CARPENTERS )
)
Petitioners )
v. ) Nos. 12-1011
) 12-1012 ) 12-1013
) 12-1047
NATIONAL LABOR RELATIONS BOARD )
) Board Case Nos.
Respondent ) 21-CA-37649
) 21-CB-14259
and )
)
SOUTHERN CALIFORNIA PAINTERS AND )
ALLIED TRADES DISTRICT COUNCIL NO. 36, )
INTERNATIONAL UNION OF PAINTERS AND )
ALLIED TRADES, AFL-CIO, )
)
Intervenor for )
Respondent )
______________________________________________)
SOUTHERN CALIFORNIA PAINTERS AND )
ALLIED TRADES DISTRICT COUNCIL NO. 36, )
INTERNATIONAL UNION OF PAINTERS AND )
ALLIED TRADES, AFL-CIO, )
)
Petitioner )
v. )
)
NATIONAL LABOR RELATIONS BOARD )
)
Respondent )


______________________________________________)
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to Rule 28(a)(1) of this Court, counsel for the National Labor Relations Board (“the Board”) certify the following:

A. Parties and Amici: Raymond Interior Systems, Inc. (“Raymond”), the Southwest Regional Council of Carpenters (“the Carpenters”), and the Southern California Painters and Allied Trades District Council No. 36, International Union of Painters and Allied Trades, AFL-CIO (“the Painters”) are the petitioners before the Court. Raymond and the Carpenters were the respondents before the Board; the Painters were the charging party. The Board is the respondent before the Court; its General Counsel was a party before the Board. The Painters have also intervened in favor of the Board’s enforcement case against Raymond and the Carpenters; the Painters’ petition for review is limited to challenging the scope of the remedy the Board awarded against those parties.

B. Ruling Under Review: The case involves the parties’ petition to review, and the Board’s cross-application to enforce, a Decision and Order the Board issued against Raymond and the Carpenters on September 30, 2010 (355 NLRB No. 209); and the Board’s Order issued on December 30, 2011 (357 NLRB No. 166), granting in part and denying in part Raymond’s and the Carpenters’ motion to reconsider the September 2010 Order.
C. Related Cases: Raymond, the Carpenters, and the Painters filed, in the

3

United States Court of Appeals for the Ninth Circuit, petitions for review, and the Board filed a cross-application for enforcement, of the Decision and Order issued in the instant case by a two-member Board panel (9th Cir. Case Nos. 09-73210, 10-70208 &10-70209).

The parties had completed briefing and were awaiting oral argument. On June 17, 2010, the Supreme Court issued New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, holding that the two-member Board lacked authority to issue decisions when there were no other sitting Board members.

Accordingly, on August 25, 2010, the Ninth Circuit remanded its cases to the Board for further proceedings. On September 30, 2010, a three-member Board panel issued the Order now before the Court. The Board is not aware of any related cases pending in or about to be presented to this Court or any other court. s/Linda Dreeben_____________

Linda Dreeben
Deputy Associate General Counsel
National Labor Relations Board
1099 14th Street, NW
Washington, DC 20570
Dated at Washington, DC
this 11th day of December, 2012.

TABLE OF CONTENTS

Headings Page(s)
Statement of subject matter and appellate jurisdiction ..............................................2
Statement of the issues presented ..............................................................................3
Relevant statutory provisions.....................................................................................4
Statement of the case..................................................................................................4
Statement of facts.......................................................................................................7
I. The Board’s factual findings ..............................................................................7

A. Background; Raymond employs two distinct groups of employees— drywall-finishing employees and drywall-hanging employees—who perform different work and who have been historically represented by different unions in separate units .................................................................7

B. In May 2006, Raymond lawfully terminates its Section 8(f)
relationship with the Painters, effective September 30, 2006, the day the Painters’ Agreement expired by its terms ......................................10

C. Raymond calls the employees to a meeting on October 2, 2006................11

D. Company President Winsor and Superintendent Zorrero tell employees that they must sign up with the Carpenters “that day” or else they will have no more work......................................................................................12

E. The Carpenters presents employees with a single document containing membership, dues checkoff, and authorization forms, but does not at that time provide them with a Beck notice of their rights regarding union membership and the use and payment of union dues; most employees comply by signing and returning the document that day...........................14
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TABLE OF CONTENTS
Headings-Cont’d Page(s)

F. Later on October 2, Raymond recognizes the Carpenters as the employees’ Section 9(a) representative based on the authorization cards the employees signed that day......................................................16
II. The Board’s conclusions and order...............................................................16
III. The Board’s order on reconsideration ......................................................... 18

Summary of argument..............................................................................................20
Argument..................................................................................................................24

I. Substantial evidence supports the Board’s findings that Raymond unlawfully assisted the Carpenters in obtaining union-authorization cards, that Raymond unlawfully granted, and the Carpenters unlawfully accepted, Section 9(a) recognition, and that they unlawfully applied the Carpenters agreement and its union-security clause .......................................................................................24

A. Introduction .....................................................................................24

B. The Act requires that employees’ free choice of bargaining
representative be untainted by any employer compulsion or influence ......................................................................................25

C. Substantial evidence supports the Board’s findings that Raymond unlawfully assisted and recognized the Carpenters as Section 9(a) representative; that the Carpenters unlawfully accepted that assistance and recognition; and that they both violated the Act by applying the Carpenters 2006 master agreement to the drywall-finishing employees at a time when the Carpenters lacked uncoerced majority support ...............................30

D. The parties fail to meet their heavy burden in seeking to overturn the Board’s reasonable credibility determinations........34
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TABLE OF CONTENTS
Headings-Cont’d Page(s)
II. The Carpenters violated Section 8(b)(1)(A) of the Act by failing to timely inform employees of their Beck rights at the time it first sought to obligate them to become union members and pay union dues..............................41

A. The Carpenters failed to timely provide a Beck notice...................41

B. Raymond’s and Carpenters’ contentions lack merit .......................44

III. The Board acted within its broad discretion when it awarded the the traditional, court-approved remedy for the unlawful assistance and Section 9(a) recognition found here.................................................46

A. The Board is afforded broad discretion in formulating
remedies ........................................................................................47

B. The Board’s remedy appropriately prevents Raymond and the Carpenters from benefitting from the tainted union- authorization cards.........................................................................47

C. Raymond’s and the Carpenters’ contentions are without
merit ...............................................................................................48

D. The Painters’ challenge to the remedy must fail ...........................50

1. The Board reasonably declined to order Raymond to provide alternate-benefits coverage .......................................................51
a. The Painters’ claims lack merit..........................................52

2. The Board properly acknowledged Raymond’s statutory right to recognize a union as its employees Section 8(f) representative ............................................................................56
Conclusion .............................................................................................................