"[w]here, as here, there is an intervening change of agency policy, the central question is 'whether giving the change retrospective effect will best effectuate the policies underlying the agency's governing act,' and that question is committed, in the first instance, to the agency's sound discretion"
How later courts described this case
- "[w]here, as here, there is an intervening change of agency policy, the central question is 'whether giving the change retrospective effect will best effectuate the policies underlying the agency's governing act,' and that question is committed, in the first instance, to the agency's sound discretion"
- “[wjhere, as here, there is an intervening change of agency policy, the central question is ‘whether giving the change retrospective effect will best effectuate the policies underlying the agency’s governing act,’ and that question is committed, in the first instance, to the agency’s sound discretion”
- "National Posters I "
Written by the judges who cited it.
The opinion
SPROUSE, Circuit Judge,
dissenting:
I respectfully dissent.
I disagree with the pivotal point of the majority decision — that National Posters raised substantial issues of fact about Samuel John’s employment status requiring a hearing by the Regional Director,
A post-election hearing undoubtedly must be conducted when the objecting party raises a “substantial and material issue of fact relating to the validity of a representation election.” Methodist Home v. NLRB, supra. One cannot, however, raise a substantial issue of merely by questioning the interpretation of the Regional Director s findings. Macomb Pottery Co. v. NLRB, 376 F.2d 450, 453 (7th Cir.1967); NLRB v. Sun Drug Co., 359 F.2d 408, 414 (3d Cir. 1966).
The Director carefully considered all the objective evidence before reaching a decision on John’s employment status. He correctly credited John with working at least some hours in each month from June through December, 1981. He found that *1365 John was paid slightly less and received fewer benefits than his co-workers because he had only recently been employed. He found, however, that John worked shoulder to shoulder with full-time employees, performing the same job assignments and reporting to the same supervisors.
National Posters relies on the affidavit of Earl Seth, its president and sole owner, as sufficient to raise a substantial and material issue of fact as to whether John was a “part-time” or “seasonal” employee. Seth’s affidavit essentially stated his subjective view that he had hired John in anticipation of increased seasonal work. The Regional Director, in rejecting this bare assertion, based his findings on uncontested documented evidence. In my mind, the entirely subjective intent of the employer under these circumstances is entitled to little weight. Specific and objective facts from company records were introduced into evidence and fully considered by the Regional Director. A single self-serving, and entirely subjective, impression simply does not have the probative force to create an issue of fact when measured against that evidence.
I have, moreover, a more fundamental difference with the majority opinion. It states: “the critical legal conclusion drawn by the Regional Director was that John was a part-time, and not a seasonal employee .... The conclusion is based on the Regional Director’s factual finding that Employer’s need for John’s services was based on the periodic availability of work rather than on peak season demand. That finding, however, is a resolution of the material factual issue raised by Employer.”
I suggest that my respected colleagues have not separately stated a legal conclusion and a factual finding upon which it was based; rather, they have simply taken the legal conclusion — that John was a part-time employee and recategorized it as a finding of fact under the cloak of factual terminology. The Director’s findings of fact were that John worked a stated number of hours in each month, received a certain level of pay and benefits, and worked “shoulder to shoulder” with regular employees. The Director concluded from these facts that John’s service was based on the periodic availability of work. This was, at least, an ultimate conclusion of fact from which only one conclusion of law was possible — that John was a part-time employee. To create an issue of fact under the circumstances of this case, National Posters must offer evidence, by affidavit or otherwise, contradicting the Director’s factual findings as to hours worked, job assignments, and the conditions of his employment. Instead, it by affidavit merely disputed the inferences and conclusions drawn by the Regional Director from record facts. I feel the Board correctly rejected the contention that such a subjective impression created a substantial and material issue of fact. Macomb Pottery Co. v. NLRB, 376 F.2d 450, 453 (7th Cir.1967); NLRB v. Sun Drug Co., 359 F.2d 408, 414 (3d Cir.1966).
I agree with the majority that the standard announced by the Board in Midland controls the misrepresentation issues, but since National Posters raised no Midland issues, I do not feel a remand is necessary.
I would enforce the Board’s order.