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