Petition — Valley Mold Co. v. National Labor Relations Board

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

no. & > To 1 6§ 6 l : te

——_—.

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

VALLEY MOLD COMPANY, INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

CHESTER E. FINN, ESQ.

Attorney for Petitioner

VALLEY MOLD COMPANY,

INC,

2100 First National Bank Building

Dayton, Ohio 45402

Telephone: 513/228-2411

ON THE PETITION:

JOHN O. HENRY, ESQ.

THOMAS A. HOLTON, ESQ.

R. BRUCE SNYDER, ESQ.

ESTABROOK, FINN & McKEE

Of Counsel

OOO

COURT INDEX PRESS, INC. — 809 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450

ray

INDEX

OPINIONS BELOW | soto antl

ST ARE

QUESTIONS PRESENTED....................

STATUTES INVOLVED... ee eee

STATEMENT OF THECASE..................

I. HISTORY OF THE CASE

Il. THE BACKPAY SPECIFICATION

Ill. MOTION FOR THE TAKING OF

I «db Weht ges Akers ave dee 4 8

IV. THE BACKPAY HEARING ............

REASONS FOR GRANTING WRIT —

I. ‘The decision of the Court of Appeals below

is in conflict with the decision of the Fifth

Circuit Court of Appeals with respect to

whether Section 10(b) of the National

Labor Relations Act, 29 U.S.C. Section 160

(b) , requires the Board to provide for pre-

hearing discovery in its administrative pro-

ceedings as far as practicable. ...

II. ‘The decision of the Court of Appeals below

is in conflict with the decision of the Fifth

Circuit Court of Appeals with respect to

whether Section 102.30 (a) of the Board's

Rules and Regulations is properly inter-

preted as meaning that depositions may be

taken prior to a Board hearing only if there

is reason to believe that the witness whose

deposition is sought may be unavailable to

testify at the hearing.

Ill. A respondent in an NLRB backpay proceed-

ing is denied a meaningful hearing and the

right to the effective assistance of counsel

in preparing a defense to an alleged backpay

charge when the respondent has the burden

of proving that a backpay claimant incurred

willful loss of earnings, but the respondent

is denied any means even of discovering in

advance of the hearing what factual allega-

tions will be made by the backpay claimant

as well as any means to prepare a defense

thereto.

CONCLUSION

APPENDIX A Supplemental Decision and Order

of NLRB and the rulings, findings

and conclusions of the Administra-

tive Law Judge adopted thereby.

APPENDIX B Judgment of USCA 6

APPENDIX C Complete texts of statutes involved

APPENDIX D Relevant portions of opinion in

N.L.R.B. v. Interboro Contractors,

Inc., 432 F. 2d 854 (2d Cir., 1970),

cert. denied, 402 U.S. 915 (1971)

Page

3la

Sha

43a

TABLE OF AUTHORITIES CITED

Cases: Page

Armstrong v. Manzo,

380 U.S. 545, 552 (1965); accord, citing Arm-

strong, Goldberg v. Kelly, 397 U.S. 254, 267 (1970) 23

Deering Milliken, Inc. v. Nash,

90 LRRM $138, 3149 (S.C. D.C., 1975) 27-28

Firestone Synthetic Fibers Co. v. N.L.R.B.,

374 F. 2d 311, 214 (4th Cir., 1967) 27

Ilorence Printing Co. v. N.L.R.B.,

376 F. 2d 216 (4th Cir., 1967) cert. denied 389

US. 840 (1968) 16

McClain Industries, Inc. v. N.L.R.B.,

381 F. Supp. 187, 189-190 (Mich. D.C., 1974)

revd, on other gnds., 54 F. 2d 596 (6th Cir., 1975) 28

Morgan, et al. v. Wallace,

304 U.S. 1, 18-19, 21, 22 (1938) 24

Nabors v. N.L.R.B.,

323 F. 2d 686 (5th Cir., 1963), cert. denied, 3/6

U.S. 911 (1964) 16

N.L.R.B. vy. Bradford Dyeing Association,

310 U.S, 318, 343 (1940) 26

N.L.R.B. v. Brown & Root, Inc.,

311 F. 2d 447 (8th Cir., 1963) 16

N.L.R.B. v. Globe Wireless,

193 F. 2d 748, 751 (9th Cir., 1951) se)

N.L.R.B. v. Indiana & M.E. Co.,

318 U.S. 9 (1943) 25

IV.

Page

N.L.R.B. v. Interboro Contractors, Inc.,

482 F. 2d 854 (2d Cir., 1970), cert. denied 402

U.S. 915 (1971) 8, 9, 11, 12

N.L.R.B. v. J. & R. Boswell Co.,

136 F. 2d 585 (9th Cir., 1943) 16

N.L.R.B. v. Miami Coca-Cola Bottling Co.,

860 F. 2d 569, 575-576 (5th Cir., 1966) 16

N.L.R.B. v. Miami Coca-Cola Bottling Co.,

403 F. 2d 994, 996 (5th Cir, 1968) 10, 12

N.L.R.B. v. Ohio Hoist Manufacturing Co.,

496 F. 2d 14, 15 (6th Cir., 1974) 16

N.L.R.B. v. Rex Disposables,

494 F. 2d 588, 591-592 (5th Cir., 1974) [Citation

omitted] ) ooen ae

N.L.R.B. v. Safeway Steel Scaffolds, Inc.,

383 F. 2d 273, 277 (5th Cir., 1967) 10

N.L.R.B. v. Southern Materials Company, Inc.,

4 Cir. 1965, 345 F. 2d 240, 59 LRRM 2220 12

Southern Household Products Co., Inc.,

1973 CCH NLRB { 25,389 at p. 32, 719, 203

NLRB No. 138 (1973) 16

Virginia Electric and Power Co.,

319 U.S. 533, 544 (1943) 16

Statutes: Page

National Labor Relations Act, as amended,

Section 6, 29 U.S.C. Section 156 21

National Labor Relations Act, as amended,

Section 10 (b), 29 U.S.C. Section 160(b) 2, 3, 8, 9, 10

Rules and Regulations of the National Labor Rela-

tions Board, Series 8, as amended, 29 C.F.R.:

Section 102.15 14

Section 102.30 (a) 2, 3, 6, 8, 10, 13, 21, 22, 23

Section 102.53 17

Section 102.59 14, 16, 21, 22

Administrative Procedure Act

Section 5, 5 U.S.C. 554 22

Administrative Procedure Act

Section 7, 5 U.S.C. 556 22

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

VALLEY MOLD COMPANY, INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Sixth Circuit dated February 17, 1976.

OPINIONS BELOW

The backpay proceedings of the National Labor Rela-

tions Board which are the subject of this Application :e-

sulted from a reversai by the Board of its trial examiner's

decision in favor of Petitioner on unfair labor practice

charges The Board's decision, officially reported at 191

NLRB 498 (1971) , was affirmed by the Sixth Circuit Court

of Appeals in a decision officially reported at 467 F. 2d

482 (1972).

This application for certiorai relates to the supplemental

backpay proceedings initiated by the Board for the pur-

pose of determining entitlement to backpay of certain of

the employees involved in the Unfair Labor Practice case.

The Supplemental Decision and Order of the Board, offi-

cially reported at 215 NLRB No. 38 (1974) is printed

in Appendix A, infra. The opinion of the Court of Ap-

peals is printed in Appendix B, infra, and is reported of-

ficially at 529 F. 2d ——, 91 LRRM 2479; 78 L.C. § 11,259

(6th Cir., 1976) .

JURISDICTION

The judgment of the Court of Appeals was entered on

February 17, 1976. Petitioner invokes the jurisdiction of

this Court under Section 1254(1) of the Judicial Code,

28 U.S.C. Section 1254(1). Jurisdiction of the Court of

Appeals was based upon the Board application for en-

forcement of its supplemental order pursuant to Section

10 (e) of the National Labor Relations Act, 29 U.S.C.

Section 16? (e).

QUESTIONS PRESENTED

(1) Whether there is a conflict of authority in the

various United States Courts of Appeals with respect to

whether Section 10(b) of the National Labor Relations

Act, 29 U.S.C. Section 160 (b) , requires the Board to pro-

vide for pre-hearing discovery in its administrative pro-

ceedings as far as practicable.

(II) Whether there is a conflict of authority in the vari-

ous United States Court of Appeals with respect to whether

Section 102.30 (a) of the Rules and Regulations of the Na-

tional Labor Relations Board, Series 8, as amended, 29

C.F.R. 102.30 (a), is properly interpreted as meaning that

depositions may be taken prior to a Board hearing only if

there is reason to believe that the witness whose deposition

is sought may be unavailable to testify at the hearing.

(III) Whether a respondent employer in NLRB back-

pay proceedings is denied a meaningful hearing and the

effective assistance of counsel in preparing a defense to

the alleged backpay entitlement when the respondent em-

ployer has the burden of proving that a backpay claimant

incurred willful loss of earnings, but the respondent em-

ployer is denied any effective means either of discovering

in advance of the hearing what factual allegations, within

the exclusive knowledge of the claimant, will be made at

the hearing concerning the claimant’s unsuccessful diligent

efforts to procure suitable interim employment or of pre-

paring a defense thereto.

STATUTES INVOLVED

National Labor Relations Act, as amended, Section 10

(b), 29 U.S.C. Section 160 (b).

Section 102.30 (a) of the Rules and Regulations of the

National Labor Relations Board, Series 8, as amended,

29 C.F.R. 102.30 (a).

The complete text of these statuces, the interpretation

of which is central to the questions presented for review,

and of all other statutes cited herein are at Appendix

“C” hereof.

STATEMENT OF THE CASE

I. HISTORY OF THE CASE

Petitioner is engaged in the manufacture of plastic

products and the design of injection molding tools. The

plastic products are produced at a plant in Englewood,

(thames The Englewood plant provides jobs for 34 full-

time employees.

The backpay proceedings which gave rise to the issues

preseuted herein resulted from previous litigation regarding

certain unfair labor practices found to have been com-

mitted by Petitioner during the months of June through

August, 1970. At an unfair labor practice hearing held

in November, 1970, the Board’s trial examiner found

that, of the discharged employees, 4 of the employees were

discharged for refusing to sign a confidentiality agreement

and not because of union activity and that 17 of Petitioner’s

employees were laid off for the purpose of bona fide ma-

chinery repairs rather than because of union activity

Substituting its opinion of the credibility of the witnesses

and relative weight to be accorded their testimony for that

of its Trial Examiner before whom the witnesses testified,

the National Labor Relations Board reversed the Trial

Exaininer on these issues. The Board’s Decision was af-

firmed by the Sixth Circuit Court of Appeals.

Il. THE BACKPAY SPECIFICATION

In December, 1973 Petitioner received from the Board’s

\cting Regional Director a “Back Pay Specification and

Notice of Hearing” containing twenty-five (25) separate

claims of backpay entitlement with regard to nineteen (19)

diferent individuals. [A. 182-194]" The total backpay,

with interest, claimed to be owed by the small, locally-

owned and staffed business was approximately $47,000.

Of this amount, approximately $42,000 was claimed by

three (3) factory workers who had allegedly been unable

' “A” references are to the pages of the printed Appendix submitted

to the Sixth Circuit.

to secure suitable interim employment despite alleged

diligent effort to do so in order to mitigate their damages

for periods xanging from 134 to 244 years.

The specification contained the National Labor Rela-

tions Board’s computation of net backpay due based apon

its calculations of gross backpay due reduced by its in-

formation concerning what interim employment claimants

had succeeded in obtaining. The Specification contained

not one word about what information, if any, was dis-

covered by the National Labor Relations Board investl-

gation with regard to efforts by the claimants to obtain

suitable interim employment during those portions of the

backpay period in which claimants were not employed.

Petitioner's Answer to the backpay specification [A. 196-

200] expressly indicated, with regard to each backpay

claimant, “Respondent is without knowledge or information

sufficient to form a belief as to . . . the extent to which

the amounts claimed represent other than a willful failure

to minimize loss of earnings.” Petitioner's Answer con-

cluded by stating, “Respondent intends to examine a sub-

stantial number of employees in question by means of

deposition . . . as a means of determining the extent to

which said employees made diligent, timely and appropriate

effort to mitigate loss of earnings.”

Ill. MOTION FOR THE TAKING OF

DEPOSITIONS

Seven days after filing its Answer, Petitioner sent to

the Regional Director an “Application for the ‘Taking of

Depositions” [A. 206-207] of eight (8) of the backpay

claimants which recited, in pertinent part, that:

“The taking of depositions is necessary in this matter

in order chet VALLEY MOLD COMPANY, INC. may

i rr rr a

determine the extent to which the employees sought

to be deposed have made diligent, timely and appro-

priate effort to mitigate loss of earnings . . .

The persons sought to be deposed are expected to

testify with regard to what, if any, efforts were made

to seek and procure interim employment within a rea-

sonable time after discharge.”

The Regional Director's response was an “Order Deny-

ing Application to Take Depositions” [A. 204-205]. The

order set forth the standard Board position, maintained

throughout this litigation, that the inability of a witness

to appear at a hearing is the only circumstance under which

a regional director or trial examiner is authorized or re-

quired to find that there exists “good cause shown” for

an application for the taking of pre-hearing depositions

submitted in accordance with Rule 102.30 (a) of the

Board's Rules and Regulations.

Petitioner then submitted to the Regional Director its

“Objections of Employer to Order Denying Application

to Take Depositions” [A. 208], which contained the fol-

lowing statement:

“VALLEY MOLD COMPANY, INC. says that, as in-

dicated in its Application, said depositions constitute

the only effective means by which it could conduct in-

dependent investigation prior to hearing of the extent

to which the persons sought to be deposed had made

that reasonable effort to seek and procure interim em-

ployment within a reasonable time after discharge re-

quired as a condition precedent to recovery of back

pay.

As the action of the Acting Regional Director in de-

nying the Application effectively eliminated the abili-

ty of VALLEY MOLD COMPANY, INC. to defend

with regard to this critical issue, said action constitutes

such a denial of the fair hearing required by due

i i f the

rocess . . . as to constitute a Manifest Abuse 0

Bidiedon vested in the Acting Regional Director by

Section 102.30 of the Board’s Rules and Regulations,

Series 8, as amended.”

The NLRB General Counsel having filed his “Response”

to Petitioner's objections to the ruling [A. 209-210}, the

Regional Director issued an “Order Referring Respondent s

Objections and General Counsel's Opposition to Taking

Depositions to the Administrative Law Judge” [A. 211].

IV. THE BACKPAY HEARING

At the start of the hearing, counsel formally objected

to the proceeding going forward prior to giving Petitioner

an opportunity to take the depositions requested and re-

iterated the belief that the circumstances were such as to

result in a denial of due process of law. Noting that Pe-

titioner’s objection to the proceedings was preserved for

the record, the Administrative Law Judge sustained the

position taken by the Board's Regional Director [A. 70-71].

Upon cross-examination by Petitioner at the hearing,

those eight backpay claimants whom Petitioner had sought

to depose testified to making unsuccessful attempts to ob-

tain employment at twenty-nine (29) different businesses.

Twenty (20) of the twenty-nine (29) businesses were

named by the three backpay claimants whose claims equal

89% of the $47,000.00 total award.

After the General Counsel had rested his case-in-chief,

Petitioner moved that the Administrative Law Judge grant

a continuance with permission to depose those employers

and named individuals alleged to have knowledge bearing

upon claimants’ attempts to secure suitable interim em-

ployment. [A. 174-178] Petitioner's motion having been

denied by the Administrative Law Judge, Petitioner de-

clined to go forward on the ground that, under the cir-

cumstances, Petitioner had been denied access to the in-

formation concerning claimants’ alleged unsuccessful miti-

gation efforts vital to determining whether claimants’ will-

ful loss of earnings constituted an affirmative defense for

Petitioner to the backpay claims.

After Petitioner had filed its post-hearing brief directed

to, inter alia, the constitutional aspect of the procedural

issue, the Administrative Law Judge offered to reopen the

hearing under limited conditions not including the taking

of depositions. Petitioner acquiesced, under protest, to

the reopening of the hearing on the terms imposed by

the Administrative Law Judge, hired a private investigator,

and reported his preliminary findings to the Judge; how-

ever, the Administrative Law Judge summarily revoked

the reopening of the hearing and closed the record in re-

sponse to Petitioner's attempt to seek injunctive relief

from a Federal District Court with regard to the condi-

tions imposed on the reopened hearing. ‘The closing of the

record having created the administrative remedy of Board

review, the Federal Injunction action was dismissed.

Relying upon the interpretation of Section 10(b) of

the National Labor Relations Act and Section 102.30 (a)

of the Board's Rules and Regulations reached by the Sec-

ond Circuit Court of Appeals in N.L.R.B. v. Interboro

Contractors, Inc., 432 F. 2d 854 (2d Cir., 1970), cert. de-

nied, 402 U.S. 915 (1971), and finding no merit in Pe-

titioner’s insistence that it has been denied a meaningful

hearing, both the Board and the Sixth Circuit Court of

Appeals held against Petitioner. The Sixth Circuit Court

of Appeals had jurisdiction of the case by reason of the

Board's application for enforcement of its Supplemental

Decision and Order under 29 U.S.C. 160 (e).

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals below is in con-

flict with the decision of the Fifth Circuit Court of

Appeals with respect to whether Section 10(b) of the

National Labor Relations Act, 29 U.S.C. Section 160

(b), requires the Board to provide for pre-hearing dis-

covery in its administrative proceedings as far as

practicable.

Section 10(b) of the National Labor Relations Act, 29

U.S.C. 160 (b) , provides that unfair labor practice hearings:

“{Sjhall, so fav as practicable, be conducted in accord-

ance with the rules of evidence applicable to the dis-

trict courts of the United States under the rules of

civil procedure for the district courts of the United

States, adopted by the Supreme Court of the United

Seates. . 2. *

One of the bases for the Sixth Circuit's decision on the

due process issue in the instant case is its conclusion that

Section 10(b) of the Act does not indicate a congressional

intent that the Board should permit pre-hearing discovery

“so far as practicable.” [See Appendix B, p. 32a] The Sec-

ond Circuit and the Ninth Circuit have similarly held that

there is no specific provision in the Act for discovery pro-

cedures. N.L.R.B. v. Interboro Contractors, Inc., 432 F.

2d 854, 857-858 (2d Cir., 1970), cert. denied, 402 U.S.

915 (1971); N.L.R.B. v. Globe Wireless, 193 F. 2d 748,

751 (9th Cir., 1951).

In irreconcilable conflict with the foregoing decisions, the

Fifth Circuit has expressly held a trial examiner's ruling

2 The complete texts of all statutes involved herein are at Appendix

“C” hereof.

that the National Labor Relations Act does not contain

any provision for pretrial discovery to be error on the

ground that “Section 10(b) of the Act would appear to

give a trial examiner authority to permit the taking of

depositions in any case where such a procedure would be

practical.” N.L.R.B. v. Safeway Steel Scaffolds, Inc., 383

F. 2d 273, 277 (5th Cir., 1967) ; accord, citing and quoting

Safeway, N.L.R.B. v. Miami Coca-Cola Bottling Co., 403

F. 2d 994, 996 (5th Cir., 1968).

The decision of the Court of Appeals below is in con-

flict with the decision of the Fifth Circuit Court of

Appeals with respect to whether Section 102.30(a) of

the Board’s Rules and Regulations is properly inter-

preted as meaning that depositions may be taken prior

to a Board hearing only if there is reason to believe

that the witness whose deposition is sought may be

unavailable to testify at the hearing.

Section 102.30 (a) of the Rules and Regulations of the

National Labor Relations Board, Series 8, as amended,

29 C.F.R. 102.30(a), provides, in pertinent part:

“Witnesses shall be examined orally under oath, ex-

cept that for good cause shown after the issuance of

a complaint, testimony may be taken by deposition.

(a) .. . The regional director or the administrative

law judge, as the case may be, shall upon receipt of

the application, if in his discretion good cause has been

shown, serve upon the parties an order {granting the

application].”’

lhroughout the litigation below, Petitioner argued that

its desire to discover, in advance of the backpay hearing,

the backpay claimants’ contentions concerning their al-

leged unsuccessful efforts to obtain suitable interim em-

ployment constitutes exceptionally “good cause shown”

for the application to take depositions, since Petitioner

would have the burden of disproving such contentions at

the hearing and it is impossible to investigate the truth

or falsity of factual contentions within the exclusive knowl-

edge and control of a party opponent when such informa-

tion is first disclosed during the hearing itself. In spite

of the constitutional implications of such a holding, dis-

cussed in Section III hereof, the Board and the Court of

Appeals did not agree. The Supplemental Decision and

Order adopted by the Board® and the Court of Appeals’

decision enforcing same* were both heavily influenced by a

decision of the Second Circuit Court of Appeals holding

that the phrase “for good cause shown” in Section 102.30

(a) means only “when witnesses are unavailable to appear

at a hearing”:

The Board contends that its Rule 102.30 permitting

depositions for “good cause shown" means that depo-

sitions may be taken for use as evidence in an action

when there is reason to believe that the witness whose

deposition is sought may be unavailable at the hear-

ing, and that the Rule was never intended to provide

for the taking of depositions solely for discovery pur-

poses when the witnesses will be available for trial

We agree. N.L.R.B. v. Interboro Contractors, Inc., 452

F, 2d 854, 857 (2d Cir., 1970), cert. denied, 402 US.

915 (1971).

The Fifth Circuit Court of Appeals has held that such

a conclusion with regard to the scope of “good cause”

3See Appendix “A” hereof at page 6a and page 10a and footnotes

8, 9 and 11 thereto.

“See Appendix “B” hereof at page 33a, paragraph 3, and the cita-

tions to Interboro at pp. 32a-33a,

for granting an application for the taking of depositions un-

der Section 102.30 is error:

If he (the Regional Director] meant, as he seems to

say, that there is no pretrial discovery in labor proceed-

ings, the Director erred. The Board's regulations ex-

pressly provide for pretrial depositions “if in his dis-

cretion good cause has been shown". 29 C.F.R. { 102.-

40 (a). Ina similar case, N.L.R.B. v. Safeway Steel

Scaffolds Company of Georgia, 5 Cir. 1967, 383 F. 2d

273, 66 LRRM 2480, this Court pointed out that Sec-

tion 102.30(a) provides for the taking of pretrial

depositions . . . If discovery is practicable in the ctr-

cumstances of the case and if it is not used to harass or

coerce employees, ‘[t}he Board, ac''ng in a quast-ju-

dicial capacity as it does, should freely permit discovery

procedure in order that the rights of all parties _

be properly protected”. N.L.R.B. v. Southern Materials

Company, Inc., 4 Cir. 1965, 345 F. 2d 240, 59 LRRM

2220. N.L.R.B. v. Miami Coca-Cola Bottling Co.,

403 F. 2d 994, 996 (5th Cir., 1968). [Emphasis sup-

plied]

As indicated within the quotation from the Fifth Circuit

opinion, the Fourth Circuit also feels that the Board

policies and rules should reflect its obligation to grant

such pre-hearing discovery requests as are necessary to

sure all parties a fair hearing.

The Interboro decision of the Second Circuit is clearly

the central case relied upon by those Courts of Appeals

whe have construed Section 10 (b) of the Act and Section

102.30 (a) of the Board's Rules and Regulations as not

relevant to pre-hearing discovery in preparation for a hear-

ing. Accordingly, the full text of the lengthy discussion

of these points and of the Second Circuit's disagreement

with the Fifth Circuit which is contained in Interboro

is reproduced at Appendix ‘D"’ hereof.

Ill.

A respondent in an NLRB backpay proceeding is de-

nied a meaningful hearing and the right to the effec-

tive assistance of counsel in preparing a defense to an

alleged backpay charge when the respondent has the

burden of proving that a backpay claimant incurred

willful loss of earnings, but the respondent is denied

any means even of discovering in advance of the hear-

ing what factual allegations will be made by the back-

pay claimant as well as any means to prepare a defense

thereto.

The critical issue of constitutional import presented by

this case is whether the Board will be permitted to apply

its policy of absolute prohibition of the taking of pre-

hearing depositions for the purpose of preparing for a

hearing in the unique circumstances present in the con-

text of a backpay proceeding.

This grave constitutional question is an unfortunate

consequence of the fact that a deposition rule drafted as

part and parcel of the procedural provisions for an unfair

labor practice investigation and hearing was incorporated

whole into the procedural provisions dealing with backpay

proceedings — proceedings in which the difficulties involved

in adequately preparing to defend are totally different

from those characteristic of the unfair labor practice case.

Section 102.30(a) of the Board’s Rules and Regula-

tions, Series 8, as amended, {29 CFR 102.30 (a) ] is part

of the subpart of the Board’s Rules covering the unfair

labor practice proceeding. With » gard to Applications

to Take Depositions, it states, in pertinent part, that “The

regional director or the trial examiner, as the case may

be, shall upon receipt of the application, IF IN HIS

DISCRETION GOOD CAUSE HAS BEEN SHOWN,

make and serve upon the parties an order [granting the

application].” (Emphasis supplied)

The subpart of the Board’s Rules specifically addressed

to backpay proceedings contains Section 102.59:

Sec. 102.59 Hearing; posthearing procedure. After the

issuance of a notice of hearing with or without back-

pay specifications, the procedures provided in Sections

102.24 to 102.51, inclusive, shall be followed JNSO-

FAR AS APPLICABLE. (Emphasis supplied)

The fact is that the inherent differences between unfair

labor practice proceedings for which the discretionary depo-

sition rule was drafted and the procedural situation in

the case in which a respondent is defending at a hearing

for the purpose of determining backpay entitlement are

so great as to result in a denial of the right to a mean-

ingful hearing and the effective assistance of counsel guar-

anteed by the Fifth Amendment to the United States

Constitution.

Section 102.15 of the Board’s Rules requires that, when

an unfair labor practice claim is initiated, a complaint be

issued:

. . Stating the unfair labor practices . . . The com-

plaint shall contain . . . (b) a clear and concise de-

scription of the acts which are claimed to constitute

unfair labor practices, including, where known, the

approximate dates and places of such acts and the

names of respondent's agents or other representatives

by whom committed.”” (29 CFR 102.15)

When in possession of a complaint drafted in accordance

with the Rule, the respondent is in possession of all infor-

mation needed for the purpose of conducting a thorough

investigation of the specifically-described incident, inter-

viewing the management personnel alleged to have par-

ticipated, searching out independent witnesses to the al-

leged incident, and, in short, preparing to defend against

the charges. Given a properly drawn complaint, a respon-

dent employer is in as good a position as any other party

to investigate the truth or falsity of the charges.

In the context for which the rule was drafted, a provi-

sion for the taking of depositions might indeed be reason-

able when applied only to cover that rare case in which

a witness would, for some reason, be unavailable for cross-

examination at trial.5 Indeed, this is the position taken

by the Board throughout the litigation below:

“The rule permitting depositions for ‘good cause

shown’ means that depositions may be taken for use

as evidence in an action when there is reason to

believe that the witness whose deposition is sought

may be unavailable at the hearing, and the rule was

never intended to provide for taking of depositions

solely for discovery purposes when the witness will be

available for trial." (A. 209, See also N.L.R.B. Brief,

pp. 33-34)

This stance, although it misinterprets the clear language

of the rule, is perfectly logical in the context in which it

was originated, namely, the unfair labor practice hearing,

in which the factual allegations are set forth in the Com-

plaint and concern events within the knowledge of both

parties.

However, the Board applies this theory to a backpay

proceeding in which failure to mitigate is an issue in spite

of the fact that it also takes the position that no inference of

disentitlement to backpay may be drawn from unemploy-

5 As indicated in Section II hereof, this is the limited interpretaticn

of “good cause” which the Beard attempts to apply regardless of the

circumstances.

ment over a long period of time® and has taken ihe posi-

tion that the Company can meet its burden of proving

the affirmative defense only by established facts showing

there is no backpay liability or less than the amount claimed

— the Board has itself held that simply cross-examining

the claimant at the hearing about alleged efforts to find

work and arguing they were inadequate will not suffice

to meet the respondent’s burden of proof. Southern House-

hold Products Co., Inc., 1973 CCH NLRB { 25,389 at p-

32,719, 203 NLRB No. 138 (1973).

Unfortunately, those who drafted Rule 102.59 rendering

the provisions of Section 102.30(a) “applicable” to back-

pay proceedings failed to consider that thc major issue of

fact to be determined in a backpay proceeding is an af-

firmative defense? depending primarily upon information

within the exclusive control of the discharged employees.

In a backpay proceeding in which the extent to which

the claimants have made a diligent effort to obtain suitable

interim employment is raised as an affirmative defense in

the Respondent's answer, “good cause’’ for the taking of

claimants’ depositions is always shown.

Unlike the specificity required in the unfair labor prac-

tice complaint, the Board’s Rule setting forth the re-

6 See Appendix “A”, Pages 19a-20a citing N.L.R.B. v. Miami Coca-

Cola Bottling Co., 360 VF. 2d 569, 575-576 (5th Cir., 1966).

7 It is we'll settled that in a backpay proceeding willful loss of eam-

ings is an affirmative defense which the respondent has the burden of

proving. Virginia Electric and Power Co., 319 U.S. 533, 544 (1943);

N.L.R.B. v. Ohio Hoist Manufacturing Co., 496 F. 2d 14, 15 (6th Cir.,

1974); N.L.RB. v. Brown & Root, Inc., 311 F. 2d 447 (8th Cir., 1963);

Nabors v. N.L.R.B., 323 F. 2d 686 (5th Cir., 1963), cert. denied, 376

U.S. 911 (1964); N.L.R.B. v. J. G. Boswel Co., 136 F. 2d 585 (9th

Cir., 1943); Florence Printing Co. v. N.L.R.B., 376 F. 2d 216 (4th

Cir., 1967), cert. denied 389 U.S. 840 (1968).

quired contents of a backpay specification, 29 CFR 102.53,

does not provide for the inclusion therein of information

known to the Board concerning the claimants’ alleged

unsuccessful efforts to find suitable alternative employment

in an attempt to mitigate their damages. Due to the fact

that the General Counsel is not required to and does not

foresee and negate this affirmative defense to a Backpay

Specification, a respondent must depose the claimants in

order to obtain formal, verifiable declarations with regard

to those factual allegations, within the exclusive knowl-

edge of the claimants, which it will have the burden of

disproving at the hearing. One of the major criteria

utilized by the Courts in determining on which party the

burden of proving an issue should be placed is the eminent-

ly logical and practical orientation that the burden of

proof should be borne by the party having the greater

access to the information upon which proof or disproof

of the issue depends. However, the NLRB's backpay pro-

cedure features an affirmative defense, based entirely on

the activities of claimants unknown to respondent, but

which the respondent has the burden of proving.

Hence, proper resolution of a critical question of fact

must depend upon one of two alternatives: (1) the extent

to which counsel may render effective assistance to a back-

pay respondent in preparing his case by attempting to in-

vestigate, during the hearing, the factual accuracy of self-

serving declarations with regard to damage mitigation re-

vealed for the first time at the hearing; or (2) upon be-

ing granted a means of ascertaining and investigating,

prior to the hearing, the allegations of backpay claimants

with regard to their efforts to seek, procure and retain

suitable alternative employment.

It will not do to suggest that an informal investiga-

tion would resolve the respondent's dilemma. Even if one

assumes that such an attempt to interview claimants on

an informal basis with regard to their job-seeking efforts

would generate candid cooperation by claimants and escape

being itself held an unfair labor practice, absent a back-

pay specification addressed to such allegations, sworn tes-

timony is the sole means of ensuring access to those factual

allegations which will be asserted at the hearing and which

a respondent will be required to refute in order to prevail

on the mitigation issue.

Another possible solution to the dilemma would be re-

opening the hearing when, as in this case, it becomes ap-

parent that a respondent has actually been deprived of

an Opportunity to present a defense. However, the back-

pay hearing was never reopened in the instant case.

As we have indicated above, prior to the actual formal

hearing before the Administrative Law Judge, Petitioner

was denied the right to take depositions and, therefore,

the right even to know what proofs Petitioner would be

required to make with regard to the issue of willful loss

of earnings.

It is now necessary to consider whether this denial to

Petitioner of an opportunity to know and to prepare Pe-

titioner’s case was cured at or after the hearing. We submit

that it was not, rather, it was aggravated.

At the hearing, Petitioner was allowed, for the first time,

to examine the claimants. The claimants testified to hav-

ing allegedly contacted twenty-nine (29) different em-

ployers while unsuccessfuliy searching for suitable interim

cmployment and demonstrated a uniform inability to re-

member the names of the company personnel with whom

they allegedly talked. Furthermore, the claimants testified

that fourteen (14) of the twenty-nine (29) employer con-

tacts resulted in the filing of no formal written employ-

ment application.

Petitioner informed the Administrative Law Judge that

it would go to the twenty-nine plants and depose the vari-

ous members of the personnel department cf each prior

to reopening the hearing in order to ascertain which in-

dividuals within those departments were the persons to

whom the backpay claimants said they talked when al-

legedly applying for employment. Petitioner wished, by

this means, to ensure that only those persons found to

possess knowledge relevant to the case would have to be

placed under subpoena to appear at the reopened hearing.

Again, Petitioner’s request was denied — a denial which

robbed Petitioner's counsel of the opportunity effectively

to investigate the claimant’s allegations and to present

a defense.

There followed several interchanges between Petitioner

and the Administrative Law Judge during which the

Judge continued to insist that issuance of “scattergun”

subpoenas for appearance at a hearing of all persons who

might conceivably possess relevant knowledge was the only

basis upon which he would reopen the hearing [{A. 222-

226, 233]. Convinced that the Administrative Law Judge

would not alter his position, Petitioner then acquiesced,

under protest, in the holding of a reopened hearing upon

the terms mandated by the Judge. [A. 227, 234]® Simul-

8 The Administrative Law Judge's order closing the record [A. 231],

his Decision [Appendix “A”, p. 12a], the Decision of the N.L.R.B. [Ap-

pendix “A”, p. 2a, footnote 2], and the Opinion of the Court of Appeals

[Appendix “B”, p. 33a] all contain the factually inaccurate finding that

Petitioner refused to acquiesce in the reopening of the hearing upon the

terms insisted upon by the Administrative Law Judge. The record

below contains both Petitioner's formal Motion [A. 227] and a letter

to the Judge [A. 234-237] clearly indicating that, albeit under protest

and expressly preserving its procedural objections to same, Petitioner

would participate in such a hearing. The record reflects the fact that

Petitioner hired a private investigator and submitted to the Administra-

tive Law Judge his preliminary findings concerning alleged written em-

taneously, Petitioner notified the Administrative Law

Judge of its intention of filing [A. 234-236] and did file,

in the United States District Court for the Southern Dis-

trict of Ohio, an Application for Injunctive Relief from

thosc procedural strictures imposed upon the reopened

hearing which Petitioner felt rendered such a proceeding

so manifestly calculated to discourage Petitioner from pre-

senting a defense as tu be violative of due process of law.

Apparently angered by Petitioners resort to the District

Court, the Administrative Law Judge, as indicated in our

statement of facts, forthwith closed the record rather than

granting Petitioner's formal Motion that the date for the

reopened hearing be suspended pending a decision by the

Federal District Court [A. 229]. ‘To this day, Petitioner

has not had a single opportunity to examine under oath

any of the prospective employers, whose testimony would

be critical to Petitioner's case, nor to cross examine the

claimants after developing the sworn facts from the em-

ployers allegedly contacted.

Thus, the e/iective denial of the right to a meaningful

hearing and the effective assistance of counsel that com-

menced with the refusal of the NLRB to permit pre-

hearing discovery was never cured. Having apparently

been sufficiently uneasy about the constitutional validity

of its prehearing procedural rulings to decide to under-

take the wise course of reopening the record, the Board

then permitted an angry Administrative Law Judge to

‘treeze” the case below in an unfinished posture involving

« Very serious and clearly defined constitutional issue.

ployment applications in response to the Judge's directive that he be

advised of “any evidence you have from any employer named by the

claimants beoring on their claimed efforts to secure other employment”

[A, 218-219] as a precondition to reopening the hearing. [A, 220, 233,

234-237]

Notwithstanding the presence in the case below of an

Answer by Petitioner clearly raising the mitigation issue

and two timely, properly executed Applications for the

Taking of Depositions expressly stating that information

with regard to the mitigation issue would be sought, the

applications were denied by the Regional Director and Ad-

ministrative Law Judge, respectively, relying in both in-

stances, upon the discretion vested in them by Section

102.30 (a) of the Board's Rules and Regulations, Series 8,

as amended, as rendered applicable to backpay proceed-

ings by Section 102.59 of the Board's Rules.

Petitioner asserts that the following are the necessary

consequences of the Board's refusal, affirmed by the Court

of Appeals below, to recognize any circumstances other than

the unavailablity of a witness for trial under which it will

permit the prehearing taking of depositions by a respondent

in a backpay proceedings notwithstanding the existence of

circumstances, such as those present in the instant case,

rendering such discovery necessary to insure that a re-

spondent receives a meaningful hearing:

I. That Rule 102.59 must be deemed void as at vari-

ance with Section 6 of the National Labor Relations Act to

the extent that application of Rule 102.30(a) to a back-

pay proceeding results in a denial of due process of law.

Section 6 of the Act provides:

‘The Bo. rd shall have authority from time to time to

make, amend, and rescind, in the manner prescribed

by the Administrative Procedure Act, such rules and

regulations as may be necessary to carry out the pro-

visions of this subchapter.”” (29 U.S.C. 156)

Such a rule, as interpreted by the Board, is clearly not

“necessary to carry out the provisions of this subchapter.”

Congress should not be presumed to delegate the authori-

ty to enact rules and regulations which offend the Con-

stitution.

Il. ‘That, as interpreted by the Board, NLRB Rules

102.59 and 102.30(a) must be deemed votd as in con-

travention with the Administrative Procedure Act (APA).

Section 5 of the APA provides, in pertinent part, that:

“In every case of adjudication required by statute

to be determined on the record after opportunity

for an agency hearing .. .

“(b) Persons entitled to notice of an agency hear-

ing shall be timely informed of . .. (3) the matters

of fact and law asserted...

“(c) The agency shall give all interested parties op-

portunity for (1) the suhmisston and consideration of

facts, arguments . . . where time, the nature of the

proceediny, and the public interest permit, and (2)

.. . hearing and decision on notice in accordance with

sections 556 and 557 of this title. 5 U.S.C.A. 554

(Emphasis supplied)

Section 7 of the APA, “Hearings”, indicates that:

(a) ‘This section applics, according to the provisions

thereof, to hearings required by section 553 or 554

of this tithe to be conducted in accordance with this

section.

and within its powers, employees who preside at hear-

ings may —.. . (4) take depositions or have deposi-

tions taken when the ends of justice would be served:

(d) ... «tf party is entitled to present his case or

defense by oral or documentary evidence, to submit

rebuttal evidence, and to conduct such cross-examina-

lion as may be required for a full and true disclosure

of the facts. (Emphasis supplied) 5 U.S.C. 556.

When facts essential to a defense available to a party are

in exclusive control of third persons and revealed only

at the hour of hearing, the ends of justice are not served

and the right to submit rebuttal evidence and to cross

examine are rendered an empty ritual.

Ill. That NLRB Rule 102.30(a) becomes unconstt-

tutional as applied to backpay proceedings, in which a

respondent raises failure to mitigate as an affirmative de-

fense, as it effectively authorizes discretionary denial of the

right to the effective assistance of counsel and to a meaning-

ful hearing guaranteed by the requirements for procedural

due process under the Fifth Amendment to the United

States Constitution.

Although the Constitution has never contained nor been

interpreted as containing a provision which requires pre-

trial discovery as a matter of constitutional right, the Con-

stitution has most definitely been interpreted as requiring

a “meaningful hearing.”” When the circumstances are such

that the granting of a motion for pre-trial discovery is an

absolutely essential precondition for the conduct of a

“meaningful hearing,” said pre-trial discovery is most

definitely required by the Constitution.

It is established beyond question that procedural due

process requires more than an empty ritual called a “hear-

ing” before an administrative agency will be permitted

to deprive an individual of his property. It must be a

“meaningful hearing.’’ Armstrong v. Manzo, 380 U.S. 545,

552 (1965) ; accord, citing Armstrong, Goldberg v. Kelley,

397 U.S. 254, 267 (1970). In 1938, this Court held that

a rate making hearing conducted by the Secretary of Ag-

riculture was constitutively defective. The observations

of the Court with regard to the elements of a “meaningful

hearing” needed to satisfy due process are directly in point

in the instant case:

“The right to a hearing embraces not only the right

to present evidence but also a reasonable opportunity

to know the claims of the opposing party and to meet

them. ‘The right to submit argument implies that

opportunity; otherwise, the right may be but a barren

one. ‘Those who are brought into contest with the

government in a quasi-judicial proceedings aimed at

the control of their activities are entitled to be fairly

advised of what the government proposes and to be

heard upon its proposals before it issues its final de-

mand.”

“(The Court recognizes) . . . the necessity of main-

taining the essentials of a full and fair hearing, with

the right of the appellants to have a reasonable op-

portunity to know the claims advanced against them

. . . [he maintenance of proper standards on the =

of administrative agencies in the performance of their

quasi-judicial functions is of the highest importance

and in no way cripples or embarrasses the exercise of

their appropriate authority. On the contrary, it is in

their manifest interest. For, us we said at the outset, if

these multiplying agencies deemed to be necessary

in our complex society are to serve the purposes for

which they are created and endowed with vast pow-

ers, they must accredit themselves by acting in accord-

ance with the cherished judicial tradition embodying

the basic concepts of fair play.”

Morgan, et al. v. Wallace, 304 U.S. 1, 18-19, 21, 22

(1938) .

As previously indicated, the claimants represented by

the National Labor Relations Board have exclusive con-

trol of those facts upon which the truth or falsity of claim-

ants’ entitlement to the full amount of backpay claimed

depends. Absent an ability to compel claimants or claim-

ants’ counsel to reveal the efforts claimed to have been

made to procure and retain suitable interim employment,

the “right to submit argument” on this critical, pervasive

issue of a contested backpay specification is quite definitely

“but a barren one.”

This Court has long held the National Labor Relations

Board to a high standard of fairness in exercising its quasi-

judicial functions. In N.L.R.B. v. Indiana & M.E. Co.,

$18 U.S. 9 (1943), this Court observed:

“The Act accords a great degree of finality to the

Board's findings of fact, and this Court has been in-

sistent that the admonition of the Act be strictly ob-

served. But courts which are required upon a limited

review to lend their enforcement powers to the Board's

orders are granted some discretion to see that the hear-

ings out of which the conclusive findings emanate do

not shut off a party's right to produce evidence or con-

duct cross-examination material to the issue. The stat-

ute demands respect for the judgment of the Board as

to what the grievance proves. But the court is given

discretion to see that before a party's rights are finally

foreclosed his case has been fairly heard. Findings can-

not be said to have been fairly reached unless ma-

terial evidence which might impeach, as well as that

which will support, its findings, 1s heard and weighed.

Id. at 28.

Similarly instructive with regard to the instant question

are the observations of this Court in a decision enforcing

a Board order:

“. . If the Board has acted within the compass of

the power given it by Congress, has, on a char

of unfair labor practice, held a ‘hearing,’ which the

statute requires, comporting with the standards of fair-

ness inherent in procedural due process, has made

findings based upon substantial evidence and has or-

dered an appropriate remedy, a like obedience to the

statutory law on the part of the Court of Appeals re-

quires the court to grant enforcement of the Board's

order... .

Mindful of the separate responsibilities Con-

gress has imposed upon the heel oad the courts,

we have carefully scrutinized this entire record. With-

in the range of our examination has appeared not

merely the testimony but also the procedure followed

from the filing of the charge before the Board to final

decree of the Court of Appeals. The Board and its

representatives solicitously guarded respondent’s and

intervener's right to a full and fair hearing; mani-

fested liberality in ruling upon evidence proposed by

both sides; and conducted the proceedings in a man-

ner calculated to bring about a just result.” N.L.R.B.

Vv. Bradford Dyeing Association, 310 U.S. 318, 348

(1940). [Emphasis supplied].

‘The instant case presents an excellent opportunity for

this Court to issue a much needed reminder to the N.L.R.B.

concerning its obligation to conduct its proceedings “in

a manner calculated to bring about a just result.” The

factual context herein presents a clear example of the

sort of circumstances in which application of the Board's

policy of never granting a respondent's application for dis-

covery as an aid in preparing for a hearing is not only

unworthy of a federal agency vested with quasi-judicial

powers but also raises a serious question with regard to

the constitutionality of the Board's rulings upon the pro-

cedural issues in the case.

The critical importance of a ruling by this Court with

regard to the Board's administration of the National Labor

Relations Act in a manner which constantly approaches of-

lending the requirements of procedural due process of

law is evident from the scathing observations of two Fed-

cral District Courts and two Courts of Appeals regarding

the Board's policy of ignoring all consideration of fairness

when issuing its “automatic” rejections of applications for

prehearing discovery:

‘. . . the Board in its brief argues that it was for the

Company to call other employee witnesses to prove

the negative of the alleged threatening conversation.

We think otherwise. Firestone had attempted unsuc-

cessfully to use discovery procedures, including in-

terrogatories, to learn the names of Board witnesses.

If the Labor Board may sometimes have sufficient rea-

sons for delimiting discovery in order to protect em-

ployees from company reprisal, it must accept the

burden of producting more evidence than might other-

wise be necessary. It is basically unfair for Labor

Board counsel to argue to this court that the Com-

pany should have produced witnesses whose names

were unknown to the Company because of a policy

decision of the Board. Firestone Synthetic Fibers Co.

v. N.L.R.B., 374 F. 24 211, 214 (4th Cir., 1967).

“Justice under law is, of course, the ultimate goal

of this Court. We exercise a broad discretion to re-

quire such proceeding to be had as may be just under

the circumstances. We agree with the Fourth Cir-

cuit that under some circumstances the Board’s de-

cision not to provide discovery may result in unfair-

ness. This Court is committed to the doctrine that

when good cause is shown to the Board it should per-

mit discovery in order that the rights of all parties may

be properly protected. N.L.R.B. v. Rex Disposables,

494 F. 2d 588, 591-592 (5th Cir. 1974). [Citation

omitted].

“This Court makes no effort to conceal its disapproval

of the NLRB’s apparent policy of restricting discovery

in all proceedings to the bare legal minimum regard-

less of the circumstances of the case. It is this frus-

trating and in some cases unjust policy which has led

to a rash of FOI Act suits against the NLRB and has

compelled that agency to acquire the great familiarity

with the FOI Act that it obviously possesses. Deering

Milliken, Inc. v. Nash, 90 LRRM 3138, 3149 (S.C.

D.C., 1975).

* * *

“The Board is still at liberty to determine whether

discovery is practicable in cases pending before it.

It may adopt its own rules to govern its evaluation

concerning discovery requests. But when a_ party

makes a sufficient showing of necessity for discovery,

the Board exceeds its authority under the Act when it

enforces an inflexible rule denying all discovery in all

cases. ‘The Defendants’ arbitrary and unilateral re-

fusal to participate in any discovery has precluded

plaintiff from preparing a defense, if indeed a defense

is available to it. The defendants’ refusal to even

furnish plaintiff with a list of witnesses has deprived

plaintiff an opportunity to obtain a fair hearing basic

to due process. We, therefore, think that the Board's

determination to deny discovery exceeds its authority

and is contrary to the provisions of Sect. 10 (b).

The interest the Board claims to be advancing by its

across-the-board refusal is the necessity to expeditious-

ly process the enormous number of cases pending

before it. But this interest, important though it may

be, cannot outweigh the need to advance the interest

of justice and assure respondent's due process guar-

antee to a fair hearing. The defendants have not

elected to evaluate the practicality of plaintiff's re-

quest for discovery, as mandated by Sect. 10 (b).

Rather, the defendant Regional Director has deter-

mined that the burden of any and all pre-trial dis-

covery is impractical notwithstanding the fact that

some discovery may advance the interest of justice.”

McClain Industries, Inc. v. N.L.R.B., 381 F. Supp.

187, 189-190 (Mich. D.C., 1974), revd. on other

gnds., 521 F. 2d 596 (6th Cir., 1975).

CONCLUSION

It is respectfully submitted that this Court should grant

the writ of certiorari requested on the grounds that the

decision below is in direct conflict with the decisions of

another Court of Appeals and that it is erroneous as a

matter of law for the reason that the refusal of the Na-

tional Labor Relations Board to permit prehearing dis-

covery in the circumstances presented in the backpay

proceeding involved in this case has resulted in a denial

of the meaningful hearing guaranteed to Petitioner by the

Fifth Amendment of the Constitution of the United States.

Respectfully submitted,

CHESTER E. FINN

Attorney for Petitioner

VALLEY MOLD COMPANY,

INC.

2100 First National Bank Building

Dayton, Ohio 45402

Telephone: (513) 228-2411

ON THE PETITION:

JOHN O. HENRY, ESQ.

THOMAS A. HOLTON, ESO.

R. BRUCE SNYDER, ESQ.

ESTABROOK, FINN & MchEE

Of Counsel

APPENDIX A

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Cases 9-CA-5745 and 9-CA-5811

VALLEY MOLD COMPANY, INC.

and

DISTRICT LODGE NO. 13 OF

THE INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO

SUPPLEMENTAL DECISION AND ORDER

On June 24, 1971, the National Labor Relations Board

issued its Decision and Order directing that Respondent

make whole certain employees for their losses resulting

from Respondent's unfair labor practices in discharging or

laying them off in violation of Section 8 (a) (3) of the Na-

tional Labor Relations Act, as amended.'

16, 1973, the Regional Director for Region 9 issued a back-

pay specification and notice of hearing, to which Respon-

dent duly filed an answer. A hearing was held before Ad-

ministrative Law Judge George J. Bott on January 29 and

1191 NLRB 498.

On December

2a 3a

30, 1974, at Moraine, Ohio, for the purposes of determining | assigns, shall take the action set forth in said recommended

the amount of backpay due the discriminatees. On May 13, Order.

1974, Administrative Law Judge Bott issued the attached

_ ae * ted, Washington, D.C. Dec. 3, 1974.

Supplemental Decision, in which he found that the discrim- Da a

Chairman

John H. Fanning, Member

Howard Jenkins, Jr., © Member

P iio. — . NATIONAL LABOR

| ursuant to the provisions of Section 3 (b) of the Na- RELATIONS BOARD

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its authority in this pro-

ceeding to a three-member panel.

inatees were entitled to backpay as set forth opposite their Edward B. Miller,

names in the Administrative Law Judge’s recommended

Order. ‘Thereafter Respondent filed exceptions and a sup-

porting brief.

The Board has considered the record and the attached

Supplemental Decision in light of the exceptions and brief

and has decided to affirm the rulings, findings, and con-

clusions? of the Administrative Law Judge and iopt

his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

hereby orders that the Respondent, Valley Mold Company,

Inc., Englewood, Ohio, its officers, agents, successors, and

spondent was not denied due process, we note especially the fact that

as an adjudicated wrongdoer, the burden was on the Respondent to

show any reduction in its backpay obligation. The Board's rules pro-

vide an adequate procedure to protect Respondent's rights. Having

failed to seek a continuance at the close of General Counsel's case to

seek further evidence other than through the disposition procedure

and having demonstrated an unwil!ingness to abide by the procedures

provided by the Board, Respondent cannct now convincingly argue

that it has been denied duc process in any way, or that it has been

prejudiced by the application of the Board's rules in this proceeding.

2In adopting the Administrative Law Judge’s conclusion that Re- |

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

VALLEY MOLD COMPANY. ING.

and

DISTRICT LODGE NO. 13 OF

THE INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO

Cassius B. Gravitt, Jr., Esq.,

for the General Counsel.

Thomas A. Holton, Esq., and

R. Bruce Snyder, Esq., of

Estabrook, Finn & McKee,

Dayton, Ohio, for the Respondent.

SUPPLEMENTAL DECISION AND ORDER

Statement of the Case

GEORGE J. BOTT, Administrative Law Judge: On

June 24, 1971, the Board issued its Decision and Order

directing that Respondent make whole certain employees

for their losses resulting from Respondent's unfair labor

practices in discharging or laying them off in violation of

section 8 (a) (3) of the National Labor Relations Act, as

amended.’ The Board’s Order was subsequently enforced

‘191 NLRB 498

by the United States Court of Appeals for the Sixth Circuit

on October 26, 1972. Controversy having arisen over the

amounts of backpay due under the terms of the Board's

Order, on December 16, 1973, the Regional Director for

Region 9 issued a Backpay Specification and Notice of

Hearing. On December 28, 1973, Respondent filed an

answer.

A hearing was held before me at Moraine, Ohio, on Jan-

uary 29 and 30, 1974. Briefs have been received from

General Counsel and Respondent.

Upon the entire record in the case and upon my observa-

tion of the witnesses, I make the following:

Findings and Conclusions

I. Procedural Matters and Respondent's

Due Process Contention

The case involves 8 backpay ciaimants who were found

to have been discriminatorily discharged by Respondent in

August, 1970, and 17 claimants who were found to have

been discriminatorily laid off for a short period of time in

June 1970.?

The Backpay Specification issued on December 14, 1973,

and on December 28, 1973, Respondent filed an answer

in which it stated in regard to all the claimants that it was

“without knowledge or information sufficient to form a

belief as to the amounts of net interim earnings, the extent

to which the attempt to mitigate loss of earnings was timely,

and the extent to which the amounts claimed represent

other than a wilful failure to minimize loss of earn-

ings

2 Six of the dischargees were also laid off in June and are included

in the 17.

On January 4, 1974, Respondent filed with the Regional

Director for Region 9 an Application for the Taking of

Depositions of the eight persons who had been found to

have been discriminatorily discharged. “The Application

noted a desire to take the depositions before a notary public

in the office of Respondent's counsel, and stated that the

persons sought to be deposed would be examined on in-

terim earnings and their efforts to mitigate loss of earnings.

The Regional Director issued an Order denying Re-

spondent’s application to take depositions on January 10,

1974. on the ground that good cause for the taking of

depositions had not been shown as required by Section

102.30 of the Board’s Rules and Regulations, Series 8, as

amended, in that the application did “not appear to be

based on the illness or unavailability of the witnesses,”

and the witnesses “reside within reasonable proximity of

the place of hearing... . ‘The Regional Director in his

Order also stated that what Respondent was actually seek-

ing was “full pre-trial discovery,” which the Board has

held, with Court approval. it will not permit in unfair labor

practice cases.

As already indicated, the hearing took place before me

on January 29 and 30, 1974. At the commencement of

the hearing, Respondent reiterated its objection to pro-

ceeding with the hearing based upon the Regional Direc-

tor’s denial of its request to depose the claimants. General

Counsel advised me that all of the claimants were present

and were available for cross-examination, and I overruled

Kespondent’'s objection.

3 Glen Bowen, Mary Datler, Shirley Hangen, Joanne Innis (Knox),

Dorothy Johnson, Arthur E. Strange, Kathelene Strange, and Lana

Woodgeard (Moore).

On January 23, 1974, Respondent filed with the Regional Director

Objections of Employer to Order Denying Application to Take Depo-

At the hearing General Counsel called as his witnesses

all of the eight claimants whom Respondent had sought

to depose and, having examined them briefly on their

interim earnings and efforts to find employment, turned

them over to Respondent's counsel for cross-examination.

On cross-examination the claimants testified to having made

unsuccessful attempts to obtain employment at 29 different

businesses.5

After General Counsel had rested his case-in-chief, Re-

spondent moved for a continuance in order to take deposi-

tions from the employers whom the claimants had named

as employers where they had sought employment, and also

moved that, at a later date, after said employers had been

deposed, the hearing be reconvened and the claimants

brought back for further cross-examination.®

General Counsel opposed Respondent's motion, and I

denied it. In denying Respondent's motion I commented

that the motion was being considered in “‘its broadest

aspects” as counsel had stated it, noting further that Re-

spondent now wanted to depose all persons named by the

claimants and have the claimants return for further exam-

ination on the basis of what might be discovered through

the deposition procedure. Upon denial of Respondent's

motion, Counsel for Respondent declined to go forward on

the ground that he felt that he could not adequately defend

Respondent because he had been denied a reasonable op-

portunity to present a defense.

sitions, to which Counsel for the General Counsel responded on January

25, 1974.

5 The claimants also noted the existence of two Union staff members

and two other persons who could corroborate their testimony about their

job-seeking efforts.

6 Counsel also included in his motion a request that the hearing be

continued to such time as the testimony could be transeribed and coun

sel had an opportunity to read what the claimants had testified to.

Respondent filed a brief with me in which it repeated

its arguments that it had been deprived of due process of

law by being refused an opportunity to take depositions

and to have the hearing continued, and it askea me to re-

consider my ruling. Although Respondent had not asked

only for time to investigate the claimants’ assertions that

they had looked for work at various establishments and for

an opportunity to present evidence on that issue at a re-

opened hearing, but had instead reiterated its claim to a

deposition procedure, nevertheless, on February 27, 1974,

I wrote Counsel for Respondent and advised him that I

would entertain a motion to reopen the record for “a

limited purpose,” that is, to take evidence from any em-

ployer named by the claimants. I also stated that although

a deposition procedure requested by Respondent would not

be followed, subpoenas would be available to Respondent,

if the hearing were reopened, to insure the attendance of

employer witnesses at the hearing.

On March 14, 1974, Respondent filed a motion to reopen

the record, which I denied in a ruling made on March 20,

1974, on the ground that Respondent's motion to reopen

and the motion it made at the close of General Counsel's

case-in-chief were essentially identical.? In my ruling I

repeated that I would, however, reopen the record to take

admissible evidence from any person or employer involved

in, or claimed to be involved in, the claimants elforts to

secure employment. I pointed out that the additional

hearing, if held, would be pursuant to the Board’s Rules

and Regulations, and that subpoenas would be available to

Respondent prior to the hearing. I also indicated that at

7 One of the purposes for reopening stated in the motion was, “To

authorize the issuance to Respondent of subpoenas for the purpose of

discovery in the nature of that allowed under the Federal Rules of Civil

Procedure, including the taking of depositions.”

ee eR RR NS be

the hearing I would consider Respondent’s request to re-

call the claimants if it were made after Respondent had

introduced any evidence it had bearing on the claimants

efforts to secure interim employment.

On March 27, 1974, Respondcnt filed a Motion to Re-

open the Record “under protest,” and it indicated in an

accompanying letter that it would petition the Federal Dis-

trict Court, at Dayton, Ohio, for injunctive relief.

On April 2, 1974, I issued an Order Reopening the Rec-

ord for Additional Hearing to be held at Moraine, Ohio, on

April 16, 1974. for the limited purposes previously stated

by me.

On April 5, 1974, Respondent filed a complaint in the

Federal District Court for the Southern District of Ohio,

Western Division, and sent me a copy of it along with a

Motion to Suspend Hearing Date In its Complaint and

Application for Injunctive Relief, Respondent asks the

Court to issue an injunction ordering that “the Administra-

tive Law Judge (1) postpone the reopening of the hearing

for a reasonable time in order to accord Plaintiff sufficient

time in which to accomplish the requisite investigation, (2)

permit the taking of depositions in the matter, (3) issue

subpoenas to all claimants requiring their appearance at the

re-opened hearing.”

On April 11, 1974, for the reasons stated therein. I

issued an Order Withdrawing Order Reopening Record for

Additional Hearing and Closing Record. A copy of that

Order is attached hereto as Appendix A.

Respondent contends that it has been deprived of its

constitutional right to a fair trial by the action of the Re-

gional Director in denying its application to take deposi-

tions from the claimants prior to trial and by my denial of

its motion for a continuance at the end of General Counsel's

case to enabie it to take depositions from employers or any

10a

other person having evidence bearing on the claimant's

efforts to secure interim employment. I find no merit in

this contention for the following reasons:

First. Parties to judicial or quasi-judicial proceedings

are not entitled to pretrial discovery as a matter of consti-

tutional right,§ and the Regional Director's action was in

accordance with Board policy approved by the courts.®

Since the witnesses (claimants) whom Respondent wished

to depose were not unavailable and all lived reasonably

close to the hearing site, it would be no burden on anyone

to have them present at the hearing if necessary to testify.

As appears, infra, they did appear and were cross-examined

by Respondent. I find that the Regional Director did not

abuse his discretion by denying Respondent's application.

Second. Respondent was not prejudiced by the rulings

of the Administrative Law Judge but was in fact afforded

more Opportunities to prepare its defense than the law

requires. As stated, each of the principal claimants whom

Respondent sought to depose appeared and each of them

was cross-cxamined at length.'® After the claimants had

disclosed the names of the employers at which they sought

work after they had been discharged by Respondent, the

most that Respondent was entitled to was a continuance for

a reasonable period of time to enable it to investigate the

witnesses’ claims, but it was not entitled to depositions after

the close of General Counsel’s case for essentially the same

reasons on which I have found the Regional Directo 's

8 N.L.R.B. vy. Interboro Contractors, Inc., 432 F. 2d 854 (C.A. 2).

9 N.L.R.B. v. Interboro Contractors, Inc., at 858; Globe Wireless, Ltd.,

193 F. 2d 748, 751 (C.A. 9); Richard W. Kaase Company, 162 NLRB

1320, 1321 n. 3; B.B.S.A., d.b/a Burger Boy Food-O-Rama, 164 NLRB

975. See also Raser Tanning Co., 276 F. 2d 80, 83 (C.A. 6).

10 All of the persons discriminatorily laid off were also available in

the courtroom for cross-examination, and some were called to testify

by General Counsel on another issue.

lla

denial of discovery proper, that is, (1) discovery through

depositions is not a required practice in Board proceedings,

and (2) there was no showing that the employers or other

persons the witnesses had contacted in their efforts to get

work would not be available for trial."

Respondent did not, however, request a continuance to

conduct an investigation, but asked instead for a contin-

uance to take depositions from employers of other persons

who might have some evidence relating to the claimants’

efforts to secure employment, a procedure it was not en-

titled to as a matter of right. A motion that the hearing

be continued for a reasonable period of time so that Re-

spondent might investigate what the claimants had testified

to would have been granted, but, in my opinion, the motion

made, including as it did a requirement that depositions be

taken and the claimants be recalled at some indefinite time

for additional examination, was properly denied.

Although Respondent did not make a specific, unquali-

fied request for a continuance for investigative purposes,

neither did I offer Respondent that opportunity. ‘That Re-

spondent’s failure to limit its choice was not an oversight

is apparent from its later actions, as described above, in-

cluding its qualified motions to reopen the record and its

action in the Federal Court, but, in any case, subsequently

I twice offered Respondent an opportunity to call any em-

ployer or other person to a reopened hearing, with sub-

poenas available to insure their attendance, to testify on

11 N_L.R.B. vy. Interboro Contractors, Inc., supra. See also N.L.R.B.

v. Miami Coza-Cola Bottling Company, 360 F. 2d 569, 576 (C.A. 5).

One of the claimants worked at an unidentified “body shop” in Tampa,

Florida, before he was reinstated by Respondent, but this is an in-

significant detail in the broader picture of Respondent's insistence on

a general right to have discovery. Moreover, as appears below, I have

allowed Respondent a credit for the wages which that claimant earned

at said employer.

12a

the subject of the claimants’ efforts to find work, and I also

indicated that the claimants might be required to testify

again under certain conditions. But these terms did not

satisfy Respondent, as its whole course of conduct shows,

and finally, convinced that Respondent is unwilling to par-

ticipate in a reopened hearing without first going the depo-

sition route, I revoked my Order Reopening the Hearing.

I am in total agreement with Respondent that procedural

due process requires a ‘“‘meaningful hearing,”'? but we

diverge at the point where Respondent maintains that only

through a deposition procedure in a backpay case can it

receive a fair hearing. Insistent upon such a procedure,

Respondent has neglected another method, namely, a con-

tinuance for a reasonable time and the use of subpoenas.

Having elected to maintain its position on depositions in

disregard of another no less meaningful way of proceeding,

Respondent cannot fairly contend that it was deprived of a

fair hearing.

Third. Respondent’s argument that a deposition pro-

cedure must be used because the alternative is more in-

convenient, inefficient and costly is not impressive."

According to Respondent, if depositions are not permitted

it would have to subpoena to the hearing every individual

in every company named by the claimants who “might” be

a person contacted by a claimant or have information about

which of his fellow employees might have been contacted.

Respondent does not make it clear why it cannot investigate

first and subsequently subpoena to the hearing the actual

person who has admissible evidence to offer.

Respondent also maintains that a large number of com-

panies whose personnel might have been deposed on the

12 Morgan v. United States, 304 U.S. 1, 18-19.

13 This contention is found in Respondent's letter to me dated March

27, 1974, which accompanied its motion to reopen the record.

poy a

13a

company premises at a convenient time will be put to the

expense and inconvenience of having their personne! ap-

r under subpoena at a hearing if depositions are not

allowed, but this argument overlooks the fact that the

General Counsel and each claimant are also entitled to

appear at any deposition taking, an inconvenience and ex-

pense greater by far than that which would be incurred by

any single company whose representative appeared under

subpoena.

Finally, the contention ignores an important considera-

tion, namely, that the persons deposed would still have to

appear before the Administrative Law Judge if credibility

resolutions are necessary, a needless duplication of effort

and expense.

In my opinion, whatever merit there may be in the

suggestion that Respondent be given before hearing more

information than it is normally supplied about the claim-

ants’ efforts to secure interim employment, a discovery

practice after the claimants have testified is certainly no less

expensive and no more efficient than the Board's present

practice, and it is no doubt slower.

For the reasons stated, and on the basis of the whole

record, including Respondent's failure to request a con-

tinuance for investigative purposes at the end of Gercral

Counsel's case, its election twice not to unqualifiedly re-

quest that the hearing be reopened under the terms that I

had laid down in my various communications and Rulings,

and its continued insistence on obtaining a broad deposi-

tion procedure, all of which factors have unduly delayed

a final disposition of the case, I find that Respondent has

not been deprived of due process of law by the rulings of

the Administrative Law Judge in not granting Respon-

dent's requests to take depositions.

l4a

II. Contentions Affecting More Than One Claimant

A. Accuracy of the Computations

The Backpay Specification set forth a formula for meas-

uring the average weekly earnings of discriminatees Glen

Bowen, Mary Dafler, Shirley Hangen, Joanne Innis

(Knox), Dorothy Johnson, Arthur E. Strange, Kathelene

Strange, and Lana Woodgeard (Moore). It also gives a

detailed breakdown of the gross backpay each of said dis-

criminatees would have earned from Respondent absent

the unlawful discrimination, as well as the interim earnings

of these employees, and concludes with the net backpay

alleged to be due each individual.

At the hearing, counsel for Respondent stated that, using

the same method the Board had used in determining weekly

average pay, his computations revealed that Bowen's weekly

average was $118.93 instead of $133.80, as set forth in the

Specifications, resulting in a deduction of $952.88 in

Bowen's net backpay. Counsel also claimed that the Speci-

fications incorrectly stated the third quarter of 1970 esti-

mated earnings of Dorothy Johnson, Arthur Strange, Kathe-

lene Strange, and Mary Dafler in that they worked fewer

weeks in that quarter than stated in the Specification.

Respondent having specifically disputed the accuracy of

General Counsel's figures and having been permitted to

amend its answer accordingly, an issue was raised as to the

accuracy of the Sperification in that regard, and it was then

General Counsel's burden to go forward with evidence to

show, if he could, that the amounts set forth in the Specifi-

cation were correct. Having failed to do this, I will deduct

appropriate amounts from any backpay due said claim-

ants.'4

14 Section 102.54 and 102.57 Rules and Regulations National Labor

Relations Board, Series 8, as amended. Mastro Plastics Corporation,

136 NLRB 1342, 1346.

—e Ty

;

}

l5a

B. Discriminatees Who Engaged in the Strike

From August 27, 1970, through September 14, 1970,

union adherents at Respondent’s plant were on strike. The

record indicates that discriminatees Johnson, Arthur

Strange Kathelene Strange, Dafler, Bowen and Hangen,

who were discriminatorily discharged prior to the strike,

participated in the strike, and Respondent contends that

since they would not have been available for work during

the strike, their backpay should be tolled for that period.

Respondent's contention is contrary to established Board

policy, and I reject it.'%

C. Employees Discriminatorily Laid Off between

June 23, 1970 and June 29, 19790

This group of 17 employees lost 3 or 4 days’ work during

the week in question as a result of the discrimination against

them, but Respondent claims that because the Respondent

installed a 6-day week and continued it after they were

returned to work, all discriminatees recouped their lost

time and money within 3 or 4 weeks. It claims that on that

account nothing is due them.

I find no merit in Respondent's contention. Since the

employees lost wages as a result of the discrimination, the

proper measure of their loss is the wages they would have

earned if they had not been discharged, less net earnings.

Moreover, Respondent's contention is completely incon-

sistent with the terms of the Board’s Order which was en-

forced by the Court of Appeals.'¢

13 Winn Dixie Stores, Inc., 206 NLRB No. 125; Sunshine Hosiery

Mills, 1 NLP.B 664.

16 Valley Mold, Inc., 191 NLRB 498, 501, 502.

l6a

Ill. The Individual Claims

A. Controlling Principles

The law is well settled that the “finding of an unfair

labor practice . . . is presumptive proof that some backpay

is owed,”'? and the General Counsel’s burden is limited

to showing “what would not have been taken from (the

employees) if the Company had not contravened the act.’""®

Another court described the allocation of the burden as

follows:

. in a backpay proceeding the burden is upon the

General Counsel to show the gross amounts of back-

pay due. When that has been done, however, the bur-

den is upon the employer to establish facts which

would negative the existence of liability to a given

employee or which would mitigate that liability.'®

The failure of a discriminatorily discharged employee to

make a reasonable search for employment constitutes an

affirmative defense to backpay liability.2° To carry his

burden successf{t ly in this area an employer must prove

“losses which (the employee) wilfully incurred” and

“clearly unjustifiable refusal to take desirable new employ-

ment.”’?' The burden has also been described as showing

that an employee ‘‘fails diligently to search for alternative

work,” 2? or “Failure . . . to make a reasonable search for

17 N.L.R.B. v. Mastro Plastics Corporation, 354 F. 2d 170, 178 (C.A.

2), cert. denied 384 U.S. 972.

18 Virginia Electric & Power Co. vy. N.L.R.B., 319 U.S. 533, 544.

19 N_L.R.B. v. Brown & Root, Inc., 311 F. 2d 447, 454 (C.A. 8).

20 Marlene Industries Corperation v. N.L.R.B., 440 F. 2d 673, 674

(C.A. 6); N.L.R.B. v. Reynolds, 399 F. 2d 668, 669 (C.A. 6); N.LR.B.

v. Miami Coca-Cola Bottling Company, 360 ¥. 2d 569, 575 (C.A. 5).

21 Phelps-Dodge Corp., v. N.L.R.B., 313 U.S. 177, 198-200.

22 N.L.R.B. v. Mastro Plastics Corp., 354 F. 2d 170, 174, n. 3.

NE erties be SO inte cette nb I tea ati nal

17a

interim work,’’?* or did not make an “honest good faith

effort” to find it.24 In seeking to mitigate his loss of in-

come, an employee is held “only to reasonable exertion in

this regard, not the highest standard of diligence.’’?5

Respondent contends that Glen Bowen, Dorothy John-

son, Arthur E. Strange and Kathelene Strange are not

entitled to any backpay because they did not diligently

seek to obtain interim employment.

B. Glen Bowen

Bowen was discharged on August 14, 1970, and offered

reinstatement on March 13, 1973. After the second quarter

of 1971, Bowen's interim earnings exceeded what he would

have made working for Respondent and his claim, there-

fore, is based only on losses incurred prior to that time. In

the third and fourth quaters of 1970 Bowen had no interim

earnings, according to the Specification, but in the first and

second quarters of 1971, Bowen earned elsewhere as much

or more as he would have earned at Respondent.?®

Bowen testified credibly and without contradiction that

shortly after his discharge he registered for unemployment

compensation and applicd for work at four different com-

panies in the area. He stated that he made applications

only at places where he thought he had a reasonable chance

of being employed, because he did not have funds for

gasoline. He also testified credibly that he checked back

23 N.L.R.B. vy. Miami Coca-Cola Bottling Company, supra, n. 20, at

575.

24N.L.R.B. v. Cashman Auto Co., 223 F. 2d 832, 836 (C.A. 1).

25 N.L.R.B. v. Arduini Mfg. Co., 394 F. 2d 420, 423 (C.A. 1).

26 Based on Respondent's claim that Bowen's average pay at Re-

spondent during the period used in the Specification was $118 rather

than $133.

18a

with the four companies he originally applied to. He said

he turned no jobs down, and was available for employment

at all times.

As in the cases of the other discriminatees, there is no

evidence in the record that there were jobs available for

them in the area for which they were qualified, or any evi-

dence to contradict their testimony that they looked for

work and turned none down. The facts that Bowen ob-

tained employment a little over 4 months after he was dis-

charged and earned practically as much from that point

as he would have earned if he had not been discriminated

against makes Respondent's claim in Bowen's case appear

frivolous, and I also credit his testimony that he registered

for unemployment compensation, applied and reapplied for

work at various companies, and was available for work. Re-

spondent has not met its burden in Bowens case.?”_I con-

clude, therefore, that Bowen is entitled to $2,380.00 in

backpay, with interest.?8

C. Dorothy Johnson

Johnson's backpay period began on August 14, 1970,

and ended with an offer of reinstatement on March 13,

1973, which she accepted. She had no interim earnings

during that period.

On direct examination by General Counsel, Johnson

testified that from August 1970 to March 1973, she was

available for and sought employment and turned no job

27 The only item that Respondent is able to point to in Bowen's case

is the fact that he went hunting in Michigan with a friend in October

1970.

28 Sum arrived at by deducting $952.00 from the amount set forth

in the Specification, based on Respondent's figures in regard to his

average weekly rate.

19a

down. She registered for unemployment compensation and

received it. She said she found it difficult to get work in

the Dayton, Ohio area.

On cross-examination Johnson added that she checked

regularly with the City unemployment bureau in Moraine,

Ohio, as well as the State unemployment office, during her

absence from Respondent, and she listed eight employers

at which she had applied for work after her discharge. She

stated that she visited these companies personally and also

made telephone calls to them at later times. Her contacts

were spread out over the entire period of her unemploy-

ment, she said, her last application being in late December

1972.

Johnson's testimony is uncontradicted, and I have no

reason not to accept it as true. Respondent's position in

her case seems to be that since she had no earnings for such

an extended period, she could not have been looking for

work. Ina similar situation in Miami Coca-Cola Bottling

Company, supra, the employer argued that the earnings of

two employees were so “incredibly low’’ that it made a

prima facie case of wiitu! losses during the backpay period,

and it invited the Court to ruie that an employer's proof

of “incredibly low” earnings shifts to the General Counsel

the burden of going forward with evidence that the dis-

criminatees used reasonable efforts to find interim em-

ployment. The Court held that it would ‘decline the

invitation” because it was not practical, and it would signifi-

cantly hamper the backpay remedy, if each discriminatee

were required to prove the propriety of his efforts during

the entire backpay period.”?° In the instant case, Johnson

testified credibly about her efforts to secure employment,

and her lack of success in obtaining employment does not

29 Miami Coca-Cola Bottling Company, supra n. 20, at 575.

20a

impeach her testimony or relieve Respondent of its burden

of proving facts to mitigate its liability.*°

I find and conclude, therefore, that Dorothy Johnson is

entitled to $12,560.18 in backpay, with interest, plus an

amount of backpay for the period in June, 1970, when she

was discriminatorily laid off with other employees, as dis-

cussed below.*!

D. Kathelene Strange

Kathelene Strange’s backpay period began with her dis-

charge on August 17, 1970, and ended with an offer of rein-

statement on March 13, 1973. She testified credibly that

from the time of her discharge until June 1, 1972, when

she and her family went to Florida looking for work, she

was available for work and looked for it in the Dayton,

Ohio, area. She listed five employers where she applied for

work before she left for Florida, four of which took written

applications. She stated that she was out looking for work

practically every week during that period and revisited the

employers at which she had first applied. She listed her

name with the Ohio Bureau of Employment Services and

applied for unemployment compensation, which she re-

ceived for the full period.

Mrs. Strange was unable to obtain any employment until

she went to Florida on or about June 1, 1972. She re-

mained in Florida for 9 months until she and her son

Arthur were offered reinstatement by Respondent in March

30 N.L.R.B. v. Cashman Auto Co., stipra n. 24; N.L.R.B. v. Nickey

Chevrolet Sales, Inc., (C.A. 7), decided February 27, 1974 (85 LRRM

2826); Cornwell Company, Inc., 171 NLRB 342, 343.

31 The sum has been arrived at by crediting Respondent with $170.73

on the total set out in the Specification on the basis of Respondent's

figures regarding her gross backpay for the third quarter of 1970.

2la

1973, which they both accepted. During that period she

was employed by three employers and earned $636.40.

Respondent's position on Mrs. Strange is essentially the

same as on Johnson's; having earned little or nothing. she

could not have been diligently searching for work, but

Respondent offered no evidence to establish this, and there

was nothing in Strange’s testimony or demeanor to cause

me to discredit her. I find that Mrs. Strange did make

reasonable efforts to secure interim employment.*?

I find and conclude, therefore, that Kathelene Strange 1s

entitled to $11,692.68 in backpay, with interest, plus back-

pay for the time she lost during her layoff in June 1970.8

E. Arthur Strange

Arthur Strange is Mrs. Strange’s son. Having been fired

at the same time as his mother, his backpay period runs

from August 14, 1970, until he was offered reinstatement

on March 13, 1973.

Arthur Strange had no interim earnings from the time

he was discharged until he went to Florida with his family

in June 1972. While living in Florida, Strange found work

at four different employers, earning approximately $2,700.

$2 Mrs. Strange was a packer at Respondent. Another discriminatee

(Lana Woodgear) was hired by Hewitt Soap Company as a packer

shortly after she was discharged, and Respondent argues that this in-

dicates that Strange could also have been employed there if she really

wanted a job. There is no evidence in the record, however, that

Hewitt Seap needed any more packers or that Strange knew that they

did. Actually, she testified that she did not. It also appears from

Woodgeard’s testimony that she worked for approximately a month

only at Hewitt and was then laid off, an indication that the demand

for labor at Hewitt was not good either.

33 The figure in the Specification has been adjusted by deducting

$167.61 from gross backpay in the third quarter of 1970 on the basis

of Respondent's figures for that period.

——

22a

When he was offered reinstatement by Respondent in

March, 1973, he returned to Respondent's employ, where

he now works.

Strange testified that he applied for unemployment com-

pensation after his discharge, and also applied and reap-

plied for work at five different employers that he was able to

name. He also testified that he “looked for more work

than that” meaning, I infer, that he went to other establish-

ments, but could not remember them. He also stated that

he was looking and available for work from the time of his

discharge to the end of 1971. In 1972, Strange went to

Florida because his uncle told him he might find work

there. The matter was not fully developed, but it appears

that before he left for Florida, Strange applied to Respon-

dent for work and actually did a small construction job for

Mr. Earl Valley, Respondent's president. In addition,

Strange sought work from and did odd jobs for a Mrs.

Mason before he left for Fiorida.

Respondent contends that Strange’s low interim earnings

establish wilful losses of carnings, but I am unwilling to so

infer, contrary to his uncontradicted and credited testi-

mony, for the reasons stated in Johnson's and Mrs. Strange’s

cases.

I find and conclude, therefore, that Arthur Strange is

entitled to backpay in the amount of $12,207.22, with in-

terest.

F. Mary Dafler

Dafler was discharged on August 14, 1970 and offered

34 The amount set forth in the Specification has been adjusted to give

Respondent credit for the sum of $916.00 which Strange earned at a

“body shop” in Florida, which was not listed as interim earings in

the Specification, and an additional amount of $86.34 based on Re-

spondent’s calculations, because of an error in the gross backpay listed

for the third quarter of 1970 in the Specification.

23a

reinstatement on September 14, 1970. She testified that

she was available for work and looked for it during that

period. There is no evidence to contradict her testimony,

and I find, therefore, that Dafler is due $237.17, with

interest.*4

G. Shirley Hangen

Hangen registered for unemployment compensation, ap-

plied for work at five different establishments, and was

available for work during the period after her discharge

on August 17, 1970, until she was offered reinstatement on

September 14, 1970. Indicating the state of the labor

market in the area in 1970, she said that she could not even

get an interview at the places she applied for work. ‘There

is nothing in the record to contradict Hangen’s testimony,

and I find, therefore, that she is due backpay in the amount

of $277.96, with interest, plus an amount to cover the

period of her layoff in June 1970.

H. Joanne Innis (Knox)

Discharged on August 17, 1970, and offered reinstate-

ment on September 14, 1970, this discriminatee testified

credibly and without contradiction that she applied for

work at two companies and the State unemployment office,

which sent her to another employer for a test. When the

latter employer subsequently offered her a job, she left

Respondent's employ.

I find and conclude that Joanne Innis (Knox) is entitled

to $299.00 in backpay, with interest, because of her dis-

35 Figure in Specification adjusted on the basis of Respondent's

calculations indicating error in gross backpay figure for third quarter

of 1970.

24a

charge, plus a sum of money because of her layoff, as found

below.

I. Lana Woodgeard (Moore)

This employee was discharged on August 17, 1970, and

offered reinstatement on September 14, 1970. She was also

discriminatorily laid off for 3 days in June 1970. Respon-

dent concedes that the record indicates that this discrim-

inatee merits the full net backpay claimed. I find and

conclude that she is owed $87.14, with interest, plus a sum

of money to cover her layoff, as set forth below.

J. The Discriminatory Layoffs

Seventeen employees were discriminatorily laid off be-

tween June 23, 1970 and June 29, 1970, and lost from 3

to 4 days work. General Counsel amended the Backpay

Specification at the hearing to change the computations

listed on page 9 of the Specification. Sworn testimony from

a number of employees was also taken supporting General

Counsel's position. Respondent did not dispute the

amended calculations, but it has taken the position that the

employees are entitled to nothing because their workweek

was extended after they were reinstated. I have previously

rejected this contention.*®

On the basis of the amended Specification and on the

entire record in the case, I find that the following individ-

uals are due the amounts set forth after their names:

36 Section Il, C, above.

25a

Hours Lost and

Name Shift Rate Per Hour Amount Due

Mary Dafler Ist = =22.5 at $2.15 $48.37

Juanita Evans 2nd = 31.5 at $2.10 $66.15

Evelyn Good Ist =. 22.5 at $2.15 $48.37

Shirley Hangen Ist $22.5 at $2.15 $48.37

Elmer Harden 3rd 24s at $2.15 $51.60

Joanne Innix

(Knox) Ist =. 22.5 at $2.15 $48.37

Dorothy Johnson 2nd 31.5 at $2.15 $67.72

Judith Mast Ist = 22.5 at $2.15 $48.37

Rita Mast Ist =. 22.5 at $2.15 $48.37

Mary Meadows 3rd 24 at $2.10 $50.40

Ladonna Mefford 3rd 24) at $2.15 $51.60

Gloria Standafer 2nd 31.5 at $2.10 $66.15

Stella Stone 2nd 331.5 at $2.15 $67.72

Kathelene Strange 2nd 31.5 at $2.15 $67.72

Martha Williams 3rd = 24) at $2.15 $51.69

Lana Woodgeard

(Moore) 3rd 24 at $2.00 $48.00

Sylvia Watson 2nd 31.5 at $2.00 $63.00

RECOMMENDED ORDER”

On the basis of the findings and conclusions set forth

above it is hereby ordered that Valley Mold Company, Inc.,

its officers, agents, successors and assigns, shall pay to the

employees involved in this proceeding as net backpay the

amount set forth opposite their names.

37 In the event no exceptions are filed as provided by Section 102.46

of the Rules and Regulations of the National Labor Relations Board,

the findings, conclusions, and recommended Order herein shall, as

provided in Section 102.48 of the Rules and Regulations, be adopted

by the Board and become its findings, conclusions, and Order, and

all objections thereto shall be deemed waived for all purposes.

26a

B. As a Result of the Discriminatory Discharges

Name Amount

Glen Bowen $2,380.00

Mary Dafler $238.17

Shirley Hangen $277.96

Joanne Innis (Knox) $299.00

Dorothy Johnson $12,560.81

Arthur E. Strange $12,207.22

Kathelene Strange $11,692.68

Lana Woodgeard (Moore) $87.14

B. As a Result of the Discriminatory Layoffs

Name Amount Due

Mary Dafler $48.37

Juanita Evans $66.17

Evelyn Good $48.37

Shirley Hangen $48.37

Elmer Harden $51.60

Joanne Innis (Knox) $48.37

Dorothy Johnson $67.72

Judith Mast $48.37

Rita Mast $48.37

Mary Meadows $50.40

Ladonna Mefford $51.60

Gloria Standafer $66.15

Stella Stone $67.72

Kathelene Strange $67.72

Martha Williams $51.60

Lana Woodgeard (Moore) $48.00

Sylvia Wilson $63.00

Each of the foregoing sums shall accrue interest at the

rate of 6 percent per annum, computed in the manner set

forth in Jsis Plumbing & Heating Co., 138 NLRB 716.

27a

There shall be deducted from each of the amounts social

security taxes, income tax withholding and such other

deductions as may be required by the laws of the United

States or the State of Ohio.

Dated at Washington, D.C., May 13, 1974.

/s/ George J. Bott

Administrative Law Judge

28a

APPENDIX A TO

SUPPLEMENTAL DECISION AND ORDER

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

Case Nos. 9-C.A-5745 and 9-CA-5811

VALLEY MOLD COMPANY, INC.

and

DISTRICT LODGE NO. 13 OF THE

INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS,

AFL-CIO

—_- —- —

ORDER WITHDRAWING ORDER REOPENING

RECORD FOR ADDITIONAL HEARING AND

CLOSING RECORD

Following my letter dated February 27, 1974, advising

Respondent's counsel that I would reopen the record in

the case for a limited purpose, if a proper motion were

filed, Respondent, on March 14, 1974, filed a Motion to

Reopen the Record, which I denied on March 20, 1974, for

the reasons stated therein, but in my Ruling, a copy of

which is attached, I repeated that, upon request, I would

reopen the record for certain purposes and under certain

terms and conditions.

29a

On March 27, 1974, Respondent filed a Motion to Re-

open the Record in which it stated, in part, that the motion

was made “under protest” and “in accordance with the

Ruling of Administrative Law Judge, George J. Bott, dated

March 20, 1974, to reopen the record for the limited pur-

poses described therein.”” In an accompanying letter, coun-

sel for Respondent advised me, inter alis, that ‘Respondent

will accept your invitation to move to reopen the record

for the limited purpose and under the rules described in

your letter of February 27, 1974... .”. However, in the

letter, counsel continued to express dissatisfaction with the

terms upon which I had ruled I would reopen the record

and indicated that Respondent would petition the Federal

District Court, at Dayton, Ohio, for injunctive relief.

On April 2, 1974, I issued an Order Reopening the

Record for Additional Hearing to be held at Moraine,

Ohio, on April 16, in which I again tried to make it clear

that the hearing would be conducted in accordance with

my ruling on March 20, 1974.

On April 8, 1974, I received from counsel for Respon-

dent a copy of a complaint which Respondent had filed on

April 5 in the Federal District Court for the Southern Dis-

trict of Ohio, Western Division, and a Motion to Suspend

Hearing Date. In a Memorandum attached to the Motion,

Respondent states that it has filed “an Application for In-

junctive Relief from the Ruling of the Administrative Law

Judge with regard to the conditions under which a reopen-

ing of the record would be permitted in the instant case.”

In its Motion, Respondent asked that I suspend the re-

opening of the hearing pending decision of the Court on

Respondent’s Application for Injunctive Relief ‘from the

limitations placed upon the reopening of the record.”

In its Complaint and Application for Injunctive Relief,

Respondent asks the Court to issue an injunction ordering

30a

that “the Administrative Law Judge (1) postpone the

reopening of the hearing for a reasonable time in order to

accord Plaintiff sufficient time in which to accomplish the

requisite investigation, (2) permit the taking of Deposi-

tions in this matter, (3) issue subpoenas to all claimants

requiring their appearance at the re-opened hearing.”

It is now evident to me that Respondent has no intention

and is unwilling to participate in a reopened hearing under

the terms and conditions described in my ruling of March

20, 1974, incorporated by referer e in my Order Reopening

the Record for Additional Hearing, dated April 2, 1974.

Since my Order Reopening the Record was based upon my

assumption that Respondent would comply with the con-

ditions outlined in it and since that assumption has been

proven to be ill-founded, the premise on which I ordered

the record reopened is no longer valid.

THEREFORE IT IS ORDERED that the Order Re-

opening the Record for Additional Hearing be withdrawn

and the record closed.

A Decision on the merits of the case will issue in due

course.

/s/ George J. Bott

Administrative Law Judge

Dated: April 11, 1974

3la

APPENDIX B

No. 75-1292

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NATIONAL LABOR RELATIONS |

Boarp, APPLICATION for En-

Petitioner,| forcement of an Or-

Vv. - der of the National

" C , Labor Relations

TALLEY |! D Company, INC.,

VALLEY MOoLp PA ery

Respondent.

Decided and Filed February 17, 1976.

Before: Puituips, Chief Judge, and CeLesrezze and Mc-

Crer, Circuit Judges.

Puituirs, Chief Judge. This is a supplemental proceed-

ing to a decision of this court, reported at 467 F.2d 483

(1972), in which we enforced the order of the Board

against Valley Mold Company, Inc., 191 NLRB 498

(1971). The Board found, inter alia, that the Company

violated § 8 (a) (3) and (1) of the Act by discriminatorily

laying off seventeen named employees for the purpose of

discouraging membership in the Union and by discharging

nine employees because of their activities on behalf of the

Union. The Board’s order, enforced by this court, re-

quired that the Company: (1) make whole certain named

employees for any loss they may have suffered by reason

of the discriminatory lay off; (2) offer certain named

32a

employecs immediate and full reinstatement to their former

or substantially equivalent positions; and (8) make them

whole for any loss of earnings suffered as a result of the

discrimination against them.

When the parties were unable to agree upon the amount

of backpay due the discriminatees, a backpay proceeding

was instituted. [he Board's Supplemental Decision and

Order is reported at 215 NLRB No. 38 (1974). ‘This order

allows backpay to eight named dischargees in the amout

of $39,742.98 and $941.90 to seventeen employees found

discriminatorily laid off. Reference is made to the reported

supplemental decision of the Board for a detailed recitation

of pertinent facts.

The company vigorously contests the backpay order. Its

principal contention is that the Administrative Law Judge

abused his discretion by refusing to permit the Company to

take discovery depositions prior to the reopened hearing.

The Company hoped to minimize the backpay awards by

ascertaining the names of persons in the offices of prospec-

tive employers, where backpay claimants alleged they

sought employment. We find no merit in this contention.

Section 10 (b) of the Act, 29 U.S.C. § 160 (b) , provides that

unfair labor practice hearings:

(Sjhall, so far as practicable, be conducted in accord-

ance with the rules of evidence applicable to the dis-

trict court of the United States undev the rules of civil

procedure for the district courts of the United States,

adopted by the Supreme Court of the United States. . . .

The Act does not require the Board to follow the discovery

procedures set forth in the Federal Rules of Civil Proced-

ure. N.L.R.B. vy. Interboro Contractors, Inc., 432 F.2d 854,

859 (2d Cir. 1970), cert. denied, 402 U.S. 915 (1971).

Since there is no specific provision in the Act for discovery

procedures, it is the responsibility of the Board, so long as

33a

it conforms to the requirements of due process, to formulate

its own rules as to when discovery is available to a party.

Electromec Design & Development Co. v. N.L.R.B., 409

F.2d 631, 635 (9th Cir. 1969). It is a matter within the

discretion of the Board as to whether to participate in or

permit pretrial discovery. Trojan Freight Lines v.

N.L.R.B., 356 F.2d 947, 948 (6th Cir. 1966) .

The company contends that it was deprived of due pro-

cess by the rejection of its application to take prehearing

depositions and by the denial by the Administrative Law

Judge of its motion for a continuance, at the end of the

General Counsel’s case, to enable it to take depositions

from employees and others having evidence bearing on the

efforts of claimants to secure interim employment. It is

well settled that parties to judicial or quasi-judicial proceed-

ings are not entitled to discovery as a matter of constitu-

tional right. Jnterboro Contractors, 432 F.2d at 857-58;

Starr v. Commissioner, 226 F.2d 721, 722 (7th Cir. 1955),

cert. denied, 350 U.S. 995 (1955).

The Administrative Procedure Act does not confer a

right to discovery in federal administrative proceedings.

Frilette v. Kimberlin, 508 F.2d 205, 208 (3d Cir. en banc

1974) , cert. denied, 421 U.S. 980 (1975).

In the present case the General Counsel produced all

claimants, and they were made available for cross-examina-

tion by the Company. Further, the Administrative Law

Judge twice offered the Company the opportunity to re-

open the record for the purpose of taking admissible evi-

dence from any person or employer involved in or claimed

to be involved in the claimants’ efforts to secure interim

employment; and stated that subpoenas would be available

to insure the attendance of witnesses. The Company con-

tinued to insist on discovery deposition procedure and

initiated an unsuccessful action against the Board in the

United States District Court.

34a

We find no merit in the Company's claim of deprivation

of due process.

From August 27, 1970, through September 14, 1970,

the Union engaged in a strike at the Company’s plant. All

nine of the backpay claimants were discharged prior to the

strike and six of them participated in the strike. The Com-

pany contends that claimants’ backpay should be tolled for

the eighteen days they participated in the strike,

relying upon N.L.R.B. v. Rogers, 406 F.2d 1106 (6th Cir.

1969) and 427 F.2d 712 (6th Cir. 1970.) We find the

present case to be distinguishable from Rogers. None of

the employees involved here engaged in any of the exten-

sive union activity carried on by the claimant in Rogers.

It cannot be said that the employees would not have struck

had they not been discriminatorily discharged. This court's

decision in Rogers is no bar to the Board’s finding that back-

pay in the present case should not be tolled during the

period of the strike.

All other contentions of the Company have been con-

sidered and are found to be without merit.

The order of the Board will be enforced.

35a

APPENDIX C

STATUTES INVOLVED

NATIONAL LABOR RELATIONS ACT, Section 6,

29 U.S.C. 156

The Board shall have authority from time to time to

make, amend, and rescind, in the manner prescribed by

the Administrative Procedure Act, such rules and regu-

lations as may be necessary to carry out the provisions

of this subchapter.

July 5, 1935, c. 372, §6(a), 49 Stat. 452: June 23, 1947,

c. 120, Title I, $ 101, 61 Stat. 140.

NATIONAL LABOR RELATIONS ACT, Section 10(b),

29 U.S.C. 160(b)

(b) Whenever it is charged that any person has en-

gaged in or is engaging in any such unfair labor practice,

the Board, or any agent or agency designated by the

Board for such purposes, shall have power to issue and

cause to be served upon such person a complaint stating

the charges in that respect, and containing a notice of

hearing before the Board or a member thereof, or before

a designated agent or agency, at a place therein fixed,

not less than five days after the serving of said complaint:

Provided, That no complaint shall issue based upon any

unfair labor practice occurring more than six months

prior to the filing of the charge with the Board and the

service of a copy thereof upon the person against whom

such charge is made, unless the person aggrieved thereby

was prevented from filing such charge by reason of service

in the armed forces, in which event the six-month period

36a

shall be computed from the day of his nena. om

such complaint may be amended by the — re

or agency conducting the hearing or the Boar oe

discretion at any time prior to the issuance of an or "

based thereon. The person so complained of shall ie

the right to file an answer to the original rsd ep -

complaint and to appear in person or cane ~~ c

testimony at the place and time fixed in the complaint.

In the discretion of the member, agent, or agency waned

ducting the hearing or the Board, any other person +“

be allowed to intervene in the said proceeding anc ”

present testimony. Any such proceeding shall, so far as

practicable, be conducted in accordance with se Pate

of evidence applicable in the district courts of the Unitec

States under the rules of civil procedure for the district

courts of the United States, adopted by the ——

Court of the United States pursuant to section 2072 of

Title 28.

* * *

ADMINISTRATIVE PROCEDURE ACT, Section 5,

5 U.S.C. 554

(a) This section applies, according to the sapien

thereof, in every case of adjudication required by statute

to be determined on the record after opportunity for an

agency hearing, except to the extent that there is in-

volved— - |

(1) a matter subject to a subsequent trial of the

law and the facts de novo in a court;

(2) the selection or tenure of an employee, ex-

cept a hearing examiner appointed under section

3105 of this title;

(3) proceedings in which decisions rest solely on

inspections, tests, or elections:

37a

(4) the conduct of military or foreign affairs

functions;

(5) cases in which an agency is acting as an agent

for a court; or

y (6) the certification of worker representatives.

(b) Persons entitled to notice of an agency hearing

shall be timely informed of—

(1) the time, place, and nature of the hearing;

(2) the legal authority and jurisdiction under

which the hearing is to be held; and

(3) the matters of fact and law asserted.

When private persons are the moving parties, other parties

to the proceeding shall give prompt notice of issues con-

troverted in fact or law; and in other instances agencies may

by rule require responsive pleading. In fixing the time and

place for hearings, due regard shall be had for the conven-

ience and necessity of the parties or their representatives.

sted parties oppor-

tunity for—

(1) the submission and consideration of facts,

arguments, offers of settlement, or proposals of adjust-

ment when time, the nature of the proceeding, and the

public interest permit; and

(2) to the extent that the parties are unable so to

determine a controversy by consent, hearing and deci-

sion on notice and in accordance with sections 556 and

557 of this title.

(d) The employee who presides at the reception of

evidence pursuant to section 556 of this title shall make the

recommended decision or initial decision required by sec-

tion 557 of this title, unless he becomes unavailable to the

38a

agency. Except to the extent required for the disposition

of ex parte matters as authorized by law, such an employee

may not—

(1) consult a person or party on a fact in issue,

unless on notice and opportunity for all parties to

participate; or

(2) be responsible to or subject to the supervision

or direction of an employee or agent engaged in the

performance of investigative or prosecuting functions

for an agency.

An employee or agent engaged in the performance of in-

vestigative or prosecuting functions for an agency in a case

may not, in that or a factually related case, participate or

advise in the decision, recommended decision, or agency

review pursuant to section 557 of this title, except as witness

or counsel in public proceedings. This subsection does

not apply—

(A) in determining applications for initial li-

censes;

(B) to proceedings involving the validity or appli-

cation of rates, facilities, or practices of public utilities

or carriers; Or

body comprising the agency.

(e) The agency, with like effect as in the case of other

orders, and in its sound discretion, may issue a declaratory

order to terminate a controversy or remove uncertainty.

Pub.L. 89-554, Sept. 6, 1966. 80 Stat. 584.

* * *

89a

ADMINISTRATIVE PROCEDURE ACT, Section 7,

5 U.S.C. 556

(a) This section applies, according to the provisions

thereof, to hearings required by section 553 or 554 of this

title to be conducted in accordance with this section.

(b) ‘There shall preside at the taking of evidence—

(1) the agency;

(2) one or more members of the body which com-

prises the agency; or

(3) one or more hearing examiners appointed un-

der section 3105 of this title.

his subchapter does not supersede the corduct of specified

classes of proceedings, in whole or in part, by or before

boards or other employees specially provided for by or

designated under statute. The functions of presiding em-

ployees and of employees participating in decisions in ac-

cordance with section 557 of this title shall be conducted in

an impartial manner. A presiding or participating em-

ployee may at any time disqualify himself. On the filing in

good faith of a timely and sufficient affidavit of personal bias

or other disqualification of a presiding or participating em-

ployee, the agency shall determine the matter as a part of

the record and decision in the case.

its powers, employees presiding at hearings may—

(1) administer oaths and affirmations:

(2) issue subpenas authorized by law;

(3) rule on offers of proof and receive relevant

evidence;

(4) take depositions or have depositions taken

when the ends of justice would be served:

40a

(5) regulate the course of the hearing;

(6) hold conferences for the settlement or simphi-

cation of the issues by consent of the parties;

(7) dispose of procedural requests or similar mat-

ters;

(8) make or recommend decisions in accordance

with section 557 of this title; and

(9) take other action authorized by agency rule

consistent with this subchapter.

(d) Except as otherwise provided by statute, the pro-

ponent of a rule or order has the burden of proof. Any

oral or documentary evidence may be received, but the

agency as a matter of policy shall provide for the exclusion

of irrelevant, immaterial, or unduly repetitious evidence.

A sanction may not be imposed or rule or order issued

except on consideration of the whole record or those parts

thereof cited by a party and supported by and in accordance

with the reliable, probative, and substantial evidence. A

party is entitled to present his case or defense by oral or

documentary evidence, to submit rebuttal evidence, and to

conduct such cross-examination as may be required for a

full and true disclosure of the facts. In rule making or

determining claims for money or benefits or applications for

initial licenses an agency may, when a party will not be

prejudiced thereby, adopt procedures for the submission

of all or part of the evidence in written form.

(e) The transcript of testimony and exhibits, together

with all papers and requests filed in the proceeding, con-

stitutes the exclusive record for decision in accordance with

section 557 of this title and, on payment of lawfully pre-

scribed costs, shall be made available to the parties. When

an agency decision rests on official notice of a material fact

4la

not appearing in the evidence in the record, a party is en-

titled, on timely request, to an opportunity to show the

contrary. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 386.

* * *

RULES AND REGULATIONS OF THE NATIONAL

LABOR RELATIONS BOARD,

Series 8, as amended, 29 C.F.R.

§ 102.15

After a charge has been filed, if it appears to the regional

director that formal proceedings in respect thereto should

be instituted, he shall issue and cause to be served upon all

the other parties a formal complaint in the name of the

Board stating the unfair labor practices and containing a

notice of hearing before an administrative law judge ata

place therein fixed and at a time not less than 10 days after

the service of the complaint. The complaint shall contain

(a) a clear and concise statement of the facts upon which

assertion of jurisdiction by the Board is predicated, and

(b) a clear and concise description of the acts which are

claimed to constitute unfair labor practices, including,

where known, the approximate dates and places of such

acts and the names of respondent's agents or other repre-

sentatives by whom committed.

§ 102.30

Witnesses shall be examined orally under oath, except

that for good cause shown after the issuance of a complaint,

testimony may be taken by deposition.

(a) Applications to take depositions shall be in writing

setting forth the reasons why such depositions should be

taken, the name and post office address of the witness, the

matters concerning which it is expected the witness will

42a

testify, and the time and place proposed for the taking of

the deposition, together with the name and address of the

person before whom it is desired that the deposition be

taken (for the purposes of this section hereinafter referred

to as the “officer”). Such application shall be made to the

regional director prior to the hearing, and to the adminis-

trative law judge during and subsequent to the hearing but

before transfer of the case to the Board pursuant to § 102.45

or § 102.50. Such application shall be served upon the

regional director or the administrative law judge, as the

case may be, and upon all other parties, not less than 7

days (when the deposition is to be taken within the con-

tinental United States) and 15 days (if the deposition is

to be taken elsewhere) prior to the time when it is desired

that the deposition be taken. ‘The regional director or

administrative law judge, as the case may be, shall upon

receipt of the application, if in his discretion good cause

has been shown, make and serve upon the parties an order

which will specify the name of the witness whose dc position

is to be taken and the time, the place, and the designation

of the officer before whom the witness is to testify, who may

or may not be the same officer as that specified in the appli-

cation. Such order shall be served upon all the other

parties by the regional director or upon all parties by the

administrative law judge.

§ 102.53 Contents of back-pay specification and of notice

of hearing without specification

(a) Contents of back-pay specification. Where the speci-

fication procedure is used, the specification shall specifically

and in detail show, for each employee, the back-pay periods

broken down by calendar quarters, and specific figures and

basis of computation as to gross back pay and interim earn-

ings, the expenses for each quarter, the net back pay due,

and any other pertinent information.

48a

§ 10259 Hearing; posthearing procedure

After the issuance of a notice of hearing with or without

back-pay specification, the procedures provided in §§ 102.24

to 102.51, shall be followed insofar as applicable.

APPENDIX D

432 F.2d 854 (1970)

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

INTERBORO CONTRACTORS, INC.,

Respondent.

No. 51, Docket 34556.

United States Court of Appeals, Second Circuit.

Argued and Decided Sept. 24. 1970.

Application for enforcement of supplemental decision

and order of National Labor Relations Board directing

company to pay certain sums as back pay award to two em-

ployees who were wrongfully discharged. ‘The Court of

Appeals, Lumbard, Chief Judge, held, among other things,

that Board's rule as to taking of depositions does not pro-

vide for taking of depositions for purpose of pretrial dis-

covery.

Order enforced.

[855]

LUMBARD, Chief Judge:

44a

We grant, in open court, enforcement of the Supple-

mental Order of the National Labor Relations Board di-

recting the respondent Interboro Contractors, Inc. to pay

$8,183.00 and $8,292.00 respectively to John and William

Landers who had been improperly discharged, as we held

in N.L.R.B. v. Interboro Contractors, Inc., 388 F.2d 495

(2d Cir. 1967). We file a written opinion in order to set

forth our reasons for holding that parties in a proceeding

before the Board and its examiner are not entitled to the

full panoply of discovery procedures provided by the Fed-

eral Rules of Civil Procedure.

* * *

[857]

The Company's second claim is that it did not receive a

fair hearing because it was not allowed to take depositions

of the Landers. The Company applied for leave to take

their depositions prior to the hearing, for the stated pur-

pose of aiding counsel in the preparation of his case for

trial. Both parties agree that the application amounted to

a request for pre-hearing discovery. ‘The Board contends

that its Rule 102.30 permitting depositions for “good cause

shown” means that depositions may be taken for use as

evidence in an action when there is reason to believe that

the witness whose deposition is sought may be unavailable

at the hearing, and that the Rule was never intended to

provide for the taking of depositions solely for discovery

purposes when the witnesses will be available for trial. We

agree.

It is well settled that parties to judicial or quasi-judicial

proceedings are not entitled to pre-trial discovery as a [858]

matter of constitutional right. Starr v. Commissioner of

Internal Revenue, 226 F.2d 721, 722 (7th Cir.) , cert. de-

nied 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed> 859 (1955);

Miner v. Atlass, 363 U.S. 641. 80 S.Ct. 1300, 4 L.Ed.2d

45a

1462 (1960). In fact, until Rule 26 of the Federal Rules

of Civil Procedure (FRCP) became effective in 1938, pre-

trial discovery was not available in the federal courts. More-

over, the National Labor Relations Act does not specifically

authorize or require the Board to adopt discovery proce-

dures. N.L.R.B. v. Globe Wireless, Ltd., 193 F.2d 748, 751

(9th Cir. 1951). Although section 6 of the Act does give

the Board the necessary rule-making power to carry out the

Act, the provision places the Board under no obligation to

adopt particular pre-trial procedures. Indeed several cases

arising under the Act have held that, although the Board

may possess the necessary rule-making power, the circum-

stances under which discovery will be permitted is a matter

committed to the Board’s discretion. See Electromec De-

sign & Development Co. v. N.L.R.B., 409 F.2d 631, 635

(9th Cir. 1969); N.L.R.B. v. Vapor Blast Mfg. Co., 287

F.2d 402, 407 (7th Cir.), cert. denied 368 U.S. 823, 82

§.Ct. 42, 7 L.Ed.2d 28 (1961); North American Rockwell

Corp. 1. N.L.R.B., 389 F.2d 866, 871-872 (10th Cir. 1968) .

The predecessor of the present Board Rule 102.30 was

adopted and became effective in 1935, three years before

Rule 26 of the FRCP entitled litigants in federal courts to

take depositions ‘for the purpose of discovery.” That Board

Rule was patterned after former Equity Rule 47, which

Rule 26 of the FRCP superseded, and which permitted the

taking of depositions ‘“‘upon good and execptional cause”

for the purpose of obtaining and preserving evidence for

trial, not for the purpose of discovery.* The Board’s Rule

has not changed substantially; it did not then authorize,

3 As the Historical Commentary to Rule 26, FRCP, indicates (at p.

291), “Equity Rule 47 authorized ° ° ° taking depositions of named

witnesses for use at the trial for good and exceptional cause for de-

parting from the general rule, the general rule being ‘no depositions.’

The purpose here was not discovery but obtaining proof” (quoting

from 45 W.Va.L.Q. 5).

46a

and has not since authorized the taking of depositions for

discovery purposes. The Board has consistently upheld

this interpretation and has construed the Rule as requir-

ing more than a showing that the taking of depositions

would aid counsel in the preparation of his case for trial.

See Mastro Plastics Corp., 136 N.L.R.B. 1342, 1344, n. 7

(1962) , enforced in relevant part, Master Plastics Corp. v.

United States, 354 F.2d 170, cert. denied 384 U.S. 972, 86

S.Ct. 1862, 16 L.Ed.2d 682 (1965); Van Raalte, Inc., 69

N.L.R.B. 1326, 1327 (1946) ; Walsh-Lumpkin Wholesale

Drug Co., 129 N.L.R.B. 294, 296, n. 8 (1960) ; Plumbers

and Steamfitters Union Local 100, 128 N.L.R.B. 398, 400

n. 8, enforced N.L.R.B. v. Plumbers and Steamfitters etc.

291 F.2d 927 (5th Cir. 1961); Del E. Webb Constr. Co.,

95 N.L.R.B. 377, n. 2. In short, Rule 102.30 does not on its

face, or as interpreted by the Board, provide for the taking

of depositions for the purpose of pretrial discovery.

The Board's policy, moreover, is a logical one. Indeed,

other administrative agencies have the same policy. In

FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th

Cir. 1964), the Ninth Circuit held that the Merchant Ma-

rine Act does not warrant, much less require, the adoption

of pre-trial discovery procedures by the Federal Maritime

Commission. The same result has been reached in pro-

ceedings in which pre-trial discovery has been sought before

the Tax Court of the United States. See Louisville Build-

ings Supply Co. v. Commissioner of Internal Revenue,

294 F.2d 333, 339-342 (6th Cir. 1961). The Administra-

tive Procedure Act contains no provision for pre-trial dis-

covery in the administrative process, and our research

discloses no federal agency which gives litigants the right

[859] to pre-hearing discovery in proceedings before it.*

4 Nevertheless, we recognize that some authorities have taken the po-

sition thay there should be pre-trial discovery in administrative proceed-

47a

We are not persuaded by the contrary position taken by

the Fifth Circuit. In N.L.R.B. v. Safway Steel Scaffolds Co.

of Georgia, 383 F.2d 273 (5th Cir.) , cert. denied 390 U.S.

955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1967), and N.L.R.B.

v. Miami Coca-Cola Bottling Co., 403 F.2d 994 (5th Cir.

1968), it stated that Rule 102.30 does provide for pre-

hearing discovery. This position, however, not only

ignores the origins of the Rule, but rests on three untenable

premises: first, that a 1947 amendment to section 10 (b) of

the Act requires the Board to provide for pre-hearing dis-

covery where practicable; second, that a Committee on

Revision of the Board’s Rules and Regulations subsequently

recommended that the Board’s rules be revised to adopt

a pre-hearing discovery procedure; and finally, that section

102.30 of the Board’s rules was thereafter amended to in-

corporate the recommended change.

Section 10(b) of the Act provides that Board proceed-

ings, where “practicable,” shall be conducted in accordance

with the “rules of evidence” applicable in the federal dis-

trict courts. On its face this amendment regulates the

introduction of evidence at Board hearings, without im-

posing on the Board any particular pre-trial procedures—

such as discovery—which do not by any standard constitute

rules of evidence. The legislative history of section 10 (b)

confirms this. Under the original Act, section 10 (b) pro-

vided that ‘‘[i]n any such proceeding the rules of evidence

ings. See Berger, Discovery in Administrative Proceedings, 12 Ad.L.

Bull. 28 (1959); Berger, Discovery in Administrative Proceedings: Why

Agencies Should Catch up with the Courts, 46 A.B.A.J. 74 (1960);

Kaufman, Have Administrative Agencies Kept Pace with Modern Court-

Developed Techniques against Delay?—A Judge’s View, 12 Ad.L.Bull.

103, 115 (1959-60); Gallagher, Use of Pre-Trial as a Means of Over-

coming Undue and Unnecessary Delay in Administrative Proceedings,

12 Ad.L.Bull. 44 (1959-60); and Cox, Adherence to the Rules of

Evidence and Federal Rules of Civil Procedure as a Means of Expe-

diting Proceedings, 12 Ad.L.Bull. 51, 55 (1959-60).

48a

prevailing in courts of law or equity shall not be con-

trolling.” This provision was heavily criticized on the

ground that it allowed too much incompetent evidence to

get into the record of Board hearings. It was solely to meet

that criticism that section 10(b) was amended in 1947.

See 93 Cong.Rec. 3529, I Legislative History of the Labor

Management Relations Act, 1947, p. 697 (hereafter “Leg.

Hist.”’) ; House Report No. 245, on H.R. 3020, 80th Cong.

Ist Sess. pp. 5, 40-41, 43, I Leg. Hist. 296, 331-332, 334;

House Conference Report No. 510, on H.R. 3020, p. 53, 1

Leg.Hist. 557; 93 Cong. Rec. 3529 (Remarks of Rep.

Owens, I Leg.Hist. 697; 93 Cong.Rec. 7345) (Remarks of

Rep. Lesinski, I- Leg.Hist. 910).5 Moreover the Board

has held that the amended section 10 (b) “clearly relates to

the introduction of evidence before the Board, and not to

pre-trial privilege accorded parties to judicial proceedings.”

Del E. Webb Construction Co., 95 N.L.R.B. 377 n. 2

(1951).

Second, we believe that the Fifth Circuit erred when

it indicated that discovery procedures were recommended

by the 1960 Committee on Revision. Although Board

Member Jenkins, in a working memorandum dated Jan-

uary 1960 (45 LRRM 94, 101), urged that a discovery pro-

cedure be formulated and proposed by the Committee, this

plainiy was not done. The Committee’s proposed modif-

cation of Rule 102.30 would have preserved the require-

ment that good cause be shown and would have provided

for [860] the taking of “testimony by deposition upon oral

5 For example, in commenting upon the change, Representative Hart-

ley, one of the Act’s sponsor., stated that the provision “changes the

procedure as to the introduction of evidence before the Board. It must

now be conducted in accordance with the ‘rules of evidence applicable

in the district courts ° * *” (emphasis supplied). 93 Cong.Rec. 3529, I

Legislative History of the Labor Management Relations Act, 1947,

p. 697.

49a

examination or written interrogatories for use as evidence

in the hearing” (emphasis added) , thus preserving the dis-

tinction, recognized in the Federal Rules and long applied

in Board practice, between depositions taken ‘for the pur-

pose of discovery” and those taken “for use as evidence in

the action.” Finally, we think that the Fifth Circuit was

mistaken in its view that the Board’s rules were modified

to incorporate the changes recommended by the Committee

on Revision. Rule 102.30 was first promulgated in its

present form in 1942, and not a word of substance has been

changed since.

Furthermore, even under the Fifth Circuit's interpreta-

tion of Rule 102.30, we would sustain the action of the trial

examiner. That rule gives the Board discretion to deter-

mine whether to allow the adversary litigant to take deposi-

tions. In both Safway and Miami Coca Cola supra, the

court stated that whether depositions are permitted for

discovery purposes in a particular case depends upon

whether in the trial examiner’s opinion good cause has been

shown. Thus, even if we accepted the Fifth Circuit's posi-

tion, we could not deny enforcement of the Board's order

on the ground that the trial examiner denied the Com-

pany’s application to take depositions, unless we found that

such ruling constituted an abuse of discretion—a condition

which has been found to exist only if the denial “is demon-

strated to clearly prejudice the appealing party.” Elec-

tromec Design & Development Co. v. N.L.R.B., 409 F.2d

631, 635 (9th Cir. 1969). See also N.L.R.B. v. Leprino

Cheese Co., 73 LRRM 2865 (10th Cir. decided March 31,

1970). As we indicate below, however, no such prejudice

was shown here. Indeed, the Fifth Circuit decisions cited

by the Company itself indicated that no prejudice was suf-

fered in those cases because those from whom depositions

were sought appeared as witnesses at the hearing and were

thus made available to cross-examination by the party

50a

seeking discovery. See N.L.R.B. v. Safway Steel Scaffolds

Co. of Georgia, 383 F.2d 273, 277 (5th Cir. 1967); and

N.L.R.B. v. Miami Coca-Cola Bottling Co., 403 F.2d 994,

996 (5th Cir. 1968). Similarly in this case, the Company’s

counsel had ample opportunity to cross-examine the Lan-

ders at the hearing about the matters on which he wanted

to depose them.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.