Petition — Handy Hardware Wholesale, Inc. v. National Labor Relations Board

Supreme Court, U. S,

~ FILED |

APR 4 1977

; |_MICHAEL RODAK, JR., CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

76-1358

No.

Vv.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

MICHAEL JAY KUPER

Counsel for Petitioner

2537 S. Gessner, Suite 126

Houston, Texas 77063

(713) 977-0401

TABLE OF CONTENTS

Page

Ss hb bdhbé6ss Cc ndecedeesecesses ss

GRRE cc cv cdesscscecce scevecessdoesess. ©

Constitutional and Statutory

Provisions Involved.......... seececeuee BF

Reasons for Granting Writ.........seeeeees 20

Conclusion.......e6.s. nenéucesoededsciesscoe OF

Table of Cases

Boyles Corned Beef Co. v. N.L.R.B.,

400 F2d 154 (8th Cir., 1968)........... 24

Engineers & Fabricators, Inc. v.

N.L.R.B., 376 F2d 482 (5th Cir.,

BE « céetocescdetabee es 6eebssouke eeeree . 24

N.L.R.B. v. Air Control Prod. of St.

, Inc., 335 F2d 245

Ce Gao cg BE cdecccesecécdccenceccese 2

N.L.R.B. v. Lamar Elec. Menbership

Corp., 362 F2d 505 (5th Cir., 1966).... 22

N.L.R.B. v. Tamper, Inc., 522 F2d 78

(4th Cir.', 1975) ..cccccccccccccsces soos

Statutes and Regulations

(Cited in Pertinent Part)

National Labor Relations Act, as Amend-

ed, (61 Stat. 136, 73 Stat. 519, 29

U.S.C. 151, et seq.)

gg | Rieke aie ie

-§8 (a) (5)...... Oe OE TE

National Labor Relations Board Rules

and Regulations, Series 8, as

Amended (29 C.F.R.)

BGR Uc ccccccccccccccsccccccsce

Behl scccccccsccccccccccccces

“GIGZ.GD(E) oc cccccccccccceccccce

Administrative Procedures Act, 5

U.S.C.A. §554 (b) (3)..... i CA ire

Miscellaneous

United States Constitution

Appendix A - Decision and Order of the

National Labor Relations

Board; Handy Hardware

Wholesale, Inc. and Team-

sters, General Drivers,

Warehousemen and Helpers

Local Union No. 968, 222

N.L.R.B. 373 (1976)........

Appendix B - Opinion of the United

States Court of Appeals

for the Fifth Circuit;

N.L.R.B. v. Handy Hard-

ware Wholesale, Inc., 542

F2d 935 (5th Cir., 1976)....

17,23

18,25

19,22

20,22,

A-23

Appendix C - Judgment of the United

States Court of Appeals

for the Fifth Circuit,

entered December 10,

Bees ev ascocsecececsscoecse OM

Appendix D - Denial of Petition for

Rehearing, dated Jan-

wary 10, L977. .cccccccccee AW32

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

HANDY HARDWARE WHOLESALE, INC., PETITIONER

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Handy Hardware Wholesale, Inc., prays that

a Writ of Certiorari issue to review the Judg-

ment of the United States Court of Appeals for

the Fifth Circuit entered in this case on Decem-

ber 10, 1976, enforcing the Order of the Nation-

al Labor Relations Board issued on January 16,

1976. A copy of the Judgment is reprinted in

Appendix C, commencing on Page A-30.

Opinions Below

The decision and Order of the National La-

eje«

bor Relations Board is reported as Handy Hard-

ware Wholesale, Inc., 222 N.L.R.B. 373 (1976).

The opinion of the Court of Appeals for the

Fifth Circuit is reported at 542 F2d 935. Both

the decision and Order, and the opinion, are re-

printed in the Appendix A and Appendix B, com

mencing on Pages A-l and A-23 respectively.

Jurisdiction

The Judgment of the Court of Appeals for

the Fifth Circuit was made and entered on Decem-

ber 10, 1976. The Court of Appeals subsequently

entered, on January 10, 1977, an Order denying

a Petition for Rehearing. A copy of the Order

is reprinted in the Appendix D, commencing on

Page 32. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

Questions Presented for Review

Petitioner filed an abjection to the elec~

tion alleging participation by a supervisory

IN THE SUPRE'E COURT OF THE UNITED STATES

OCTOBER TERM, 1976

HANDY HARDWARE WHOLESALE, INC., PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

MICHAFL JAY KUPER

Counsel for Petitioner

5015 Fannin Street

Houston, Texas 77004

(713) 524-7504

“ Page

Opinions Below....... pececoceeooeceses eo @

Jurisdiction..... e*eeeeeeeeee ese eeeeeeeeneee 2

Questions Presented......... eecceeos seeoe 2

Statement..... TTTTTTTTTTT Tite TTTTTITeY 4

Constitutional and Statutory

Provisions Involved.........ceseeeees 17

Reasons for Granting Writ....... ecceccece 20

GHGTEGs cn cccccccecescessoccees eoccee OO

Appendix......... TYTTTTTITTTTiTT ceccece 27

Citations

Cases:

Boyles Corned Beef Co. v. N.L.R.B.,

400 F2d 154 (8th Cir., 1968)......... 24

Engineers & Fabricators, Inc. vs.

N.L.R.B., 376 F2d 482 (Sth Cir.,

BPOEE co cccccccesoceeceseecesoscooscce 24

N.L.R.B. v. Air Control Prod. of St.

Petersburg, Inc., 335 F2d 245

Cee Gahe go EPG cccccceceecoscccceses 22

N.L.R.B. v. Lamar Elec. Membership

Corp., 362 F2d 505 (5th Cir., 1966).. 22

N.L.R.B. v. Tamper, Inc., 522 F2d 78

(4th Cir., 1975) .cccccccccccccccccccs 24

Statutes and Regulations:

National Labor Relations Act, as Amend-

ed, (61 Stat. 136, 73 Stat. 519, 29

U.S.C. 151, et seg.)

to Hinds cédcatantiwbeotees

> Be idntabbtiieakenesoacecs

National Labor Relations Board Rules

and Regulations, Series 8, as

Amended (29 C.F.R.)

i Ben 6b bnbbdeddseseseccece

@ Pe ensedeecedeseeeceséooote

or Tr cssedédecéeseosecoes

Administrative Procedures Act, 5

U.S.CA. GSEG) (SF) ccccccccccccsee

Miscellaneous:

United States Constitution

Page

ll, 16, 17

ll, 16, 17

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR

FIFTH CIRCUIT

THE

THE

Handy Hardware Wholesale, Inc., prays that

a Writ of Certiorari issue to review the Judg-

ment of the United States Court of Appeals for

the Fifth Circuit entered in this case on Novem

ber 18, 1976, enforcing the Order of the Nation-

al Labor Relations Board issued on January 16,

1976.

Opinions Below

The decision and Order of the National La-

bor Relations Board is reported as Handy Hard-

ware Wholesale, Inc., 222 N.L.R.B. 373 (1976).

The opinion of the Court of Appeals for the

Fifth Circuit is reported at 542 F2d 935. Both

the decision and Order, and the opinion, are re-

printed in the Appendix commencing on Pages A-1

and A-13 respectively.

Jurisdiction

The Judgment of the Court of Appeals for

the Fifth Circuit was made and entered on Decen-

ber 10, 1976. The Court of Appeals subsequent-

ly entered, on January 10, 1977, an Order deny-

ing a Petition for Rehearing. A copy of the

invoked under 28 U.S.C. 1254(1).

Questions Presented for Review

Petitioner filed an objection to the elec-

tion alleging participation by a supervisory

employee in the pre-election propaganda and pre-

election union organizational campaigns. The

objection was overruled by the Regional Director

and a requested hearing denied, despite the ad-

mitted union activities of the employee, and

significant evidence of his supervisory status

submitted by Petitioner.

The election was certified, and, when Pe-

titioner refused to recognize the union, com

plaint issued. Petitioner's answer denied the

complaint allegation of a continuing union re-

quest to bargain. General Counsel for Respond-

ent filed a Motion for Summary Judgment, which

Petitioner opposed, because of unresolved factu-

al issues. General Counsel for Respondent then

amended its Motion to include allegations of

recent union requests to bargain, one of which

post-dated Petitioner's answer denying such re-

quests. The complaint was never amended. Re-

spondent granted Summary Judgment, and found

union requests to bargain on the specific in-

stances alleged for the first time in the amend-

ed Motion of General Counsel for Respondent.

The questions presented for review are

whether Petitioner was denied due process of law

by Respondent's refusal to hold a hearing on Pe-

titioner's objection to the election, and by Re-

spondent's findina of violations neither alleged

in the complaint nor litigated at a hearing.

Statement

Petitioner, a Texas corporation with its

principal place of business in Houston, Texas,

is engaged in the warehousing and wholesale dis-

tribution of consumer hardware lines. On May

10, 1974, the Teamsters Union filed a petition

seeking to represent a unit of the Petitioner's

employees. At about the same time, Petitioner

received, from the Union, a letter requesting

recognition. The letter stated that Dennis Bak-

er and another individual employed by Petitioner

were recognized by the Union as “organizers for

the employees."

Dennis Baker was employed by Petitioner in

June, 1972, as a stocker and order filler in the

warehouse at the rate of $2.00 per hour. There

was only one salaried employee in the warehouse,

the warehouse superintendent, Robert S. Smith;

under Smith were four supervisors, and a staff

of twenty-five. Smith did all of the actual hir-

ing and firing, although the four supervisors

had the authority to recommend hiring and fir-

ing, and raises. Several months prior to the

filing of the petition, Baker was promoted to

fill a newly created post of supervisor in the

bulk area section. The first man to fill the

post was hired for the position, but lasted only

a week. A. F. McClellan, the President of Peti-

tioner, suggested Baker for the job, and had a

talk alone with Baker about the job and then a

meeting with Smith and Baker together. McClel-

lan and Smith told Baker that he would supervise

the stocking of items in areas 2, 3, and 4 of

the warehouse. Baker accepted the job, and was

promoted immediately with a crew of five. His

raise to $3.75 per hour, made his hourly rate at

leust $1.00 per hour higher than any non-super-

visory employee in the warehouse. Although Bak-

er was told of his authority to effectively re-

commend discharges of employees he supervised,

he never did so recommend, and no one under him

was in fact ever discharged. On the other hand,

Baker did recommend raises for two employees

which were granted. Each morning after Baker's

promotion to supervisor, Smith would meet with

Baker in the morning, show him the receiving re-

ports, and discuss what was in or coming in to

be stocked. From that point on, Baker would be

in charge of the stock work in his area, and

would issue appropriate instructions to the em

ployees under him. After Baker's promotion,

those employees were told by Smith that in the

future their instructions would come from Baker

only. Baker was also responsible for theft in

his area, and for all equipment used by his men,

such as electric lifts and hydraulic pallet jacks.

Following his promotion to supervisor, Baker did

work as a stocker when not performing his super-

visory duties, but no longer worked as an order

filler.

McClellan told Smith about the Union letter

naming Baker as an organizer of employees, and

the following morning, following the starting

bell, Baker approached Smith and requested a con-

ference. Baker said he could no longer act as a

supervisor (Baker's words). He said he would

have to quit if Petitioner refused to demote him

to his former non-supervisory status. Smith re-

sponded that Baker was putting him in a spot, be-

cause Baker's crew was waiting on instructions.

Baker continued to refuse to carry out his super-

visory duties, and, until terminated, reverted

to his former position of stocker and order fill-

er. On May 21, 1974, Baker was terminated. The

next morning McClellan called a meeting of em

ployees, explained to them that Baker had been

terminated for engaging in Union activities while

-7-

a supervisor and made it clear that rank-and-

file employees were free to engage in activi-

ties for or against the Union, as each individu-

al saw fit.

Pursuant to a stipulation for certification

upon consent election, Respondent concluded an

election on July 3, 1974, in a unit composed of:

All truckdrivers, production and main-

tenance employees, including stockmen,

order fillers, warehouse helpers and

porters but excluding office clerical

employees, sales and commission enploy-

ees, watchmen, guards and supervisors

as defined in the Act.

The tally of ballots showed that 33 ballots were

cast, Of which 19 were for the Union, 1 against,

and 13 were challenged. The challenged ballots

were not sufficient in number to affect the re-

sults of the election and were not resolved.

The ballots of the other three warehouse super-

visors, whose duties were identical to those of

Baker's were challenged by the Union on the bas-

is that they were supervisors.

It is undisputed that Baker enaaged in acti-

vities in behalf of the Union. In fact, he “was

behind the Union", the leader of the group of en-

ployees making the organizational effort, and on

at least one occasion sent one employee to threat-

en another employee in an attempt to acquire her

Signature on an authorization card. He engaged

in Union activities on the job until he was ter-

minated, and held at least one meeting of employ-

ees on Petitioner's parking lot, prior to the e-

lection. On May 23, 1974, Baker filed charges

with Respondent alleging that his discharge was

unlawful, and complaint issued on June 25, 1974.

Baker attended a Union meeting for Petitioner's

employees the weekend before the election, dur-

ing which they were told that Baker would get

his job kack. Petitioner, in fact, as part of a

settlement, did later offer Baker reinstatement.

On July 9, 1974, the Petitioner filed time-

ly objections to the election, one of which al-

leged that the Union utilized the services of

one of the Petitioner's supervisors in the Union's

Wee et om tem 4

organizational and pre-election propaganda came

paign. The Petitioner asked that the election

be set aside and that all necessary and proper

measures be taken to remedy the results of the

actions objected to, and to provide an atmosphere

free from coercion and intimidation prior to the

holding of another election. On August 8, 1974,

in a statement of position, Petitioner stated

"that the election should be set aside on the bas-

is of evidence in possession of Respondent, and,

in failing that, a hearing should be held to ad-

duce more evidence."

On August 30, 1974, following an ex parte

| administrative investigation, the Regional Dir-

ector, refusing to hold a hearing as requested,

issued his Report on the objections recommending

that the objections be overruled.

Qn September 9, 1974, the Petitioner filed

exceptions to the Regional Director's Report,

pointing out, among other things, five misstate-

ments of fact and eight omissions of fact in his

- 10 -

Report concerning the objection as to the Union's

utilization of the services of one of the Peti-

tioner's supervisors in the Union's organization-

al and pre-election propaganda campaign. Peti-

tioners against asked that the election be set a-

Side on the basis of evidence in possession of

Respondent, or, in the alternative, that a hear-

ing be directed.

On November 14, 1974, Respondent issued a

Decision and Certification of Representative a-

dopting the findings and recommendations of the

Regional Director's Report, and certifying the

Union.

Upon a charge filed by the Union, the Re-

gional Director, on December 24, 1974, issued a

complaint alleging that Petitioner's refusal to

bargain with the certified Union since November

15, 1974, violated Section 8(a) (5) and (1) of

the National Labor Relations Act. Petitioner's

answer to the complaint denied, among other

things, the alleged continuing request to bargain

by the Union.

-ll-

On January 17, 1975, the Respondent's Gen-

eral Counsel filed a motion to transfer and con-

tinue the case before Respondent and for a sum-

mary judgment, asserting that no triable issues

of fact existed. Petitioner opposed the motion

for summary judgment, on January 28, 1975, and

submitted that the issues raised by the answer

were substantive, and both factual and legal, and

moved that the complaint be dismissed, or a hear-

ing ordered to resolve the issues.

On February 7, 1975, the Respondent's Gen-

eral Counsel filed its Amendment to Motion to

Transfer and Continue Case Before Board and for

Summary Judgment and Response to Respondent's

Opposition to Motion to Transfer and Continue

Case Before Board and for Summary Judgment and

Motion to Strike portions of Petitioner's Origin-

al Answer as Constituting Sham. The above docu-

ment addressed itself, among other things, to

that part of the answer which stated that Peti-

tioner was without knowledge or information suf-

- 12-

ficient to form a belief as to the truth of the

allegation of Paragraph 10 of the complaint,

which contains an allegation of a continuing re-

quest to bargain by the Union. In answer to Pe-

titioner's opposition to summary judgment, dated

January 28, 1975, and to support the above alle-

gation in the complaint, which issued on Decem

ber 27, 1974, the Respondent's General Counsel,

in its February 7, 1975, pleading, attached a

copy of a Union request to bargain dated January

16, 1975. The next preceding Union request al-

leged by the Respondent's General Counsel is

dated December 5, 1974. Respondent's General

Counsel never amended, or attempted to amend,

the complaint.

Qn February 12, 1975, Petitioner filed an

opposition to Respondent's General Counsel's

heey 17, 1975, pleading, pointing out, a-

mong other things, that the General Counsel's

pleading was apparently an attempt to amend Para-

graph 10 of the complaint without complying with

-13-

Section 102.17 of the National Labor Relations

Board's Rules and Regulations, and that Petition-

er's answer to Paragraph 10 of the complaint

was directed to that portion thereof alleging

that the Union request for the Petitioner to meet

and bargain was not limited to November 15, 1974,

but also as “at all times thereafter to date.”

It stated that Respondent's General Counsel, by

propounding by motion new allegations of subse-

quent Union requests for bargaining, one of which

is alleged to have occurred after filing of the

complaint, was attempting to eradicate a fact is-

sue raised by the answer, and thereby improperly

obtain summary judgment.

Qn February 14, 1975, Respondent issued an

order transferring the proceeding to Respondent

and a notice to show cause why the motion for

summary judgment should not be granted.

On February 18, 1975, Petitioner filed an

application for stay of the order transferring

the proceeding to Respondent and the notice to

- 14<-

show cause, assuming that its February 12, 1975

Opposition was not received by Respondent prior

to issuance of the order and notice.

On June 12, 1975, Respondent issued an order

denying the application, stating that the issues

raised by Petitioner's opposition and application

could better be resolved after receipt of the re-

sponses to the notice to show cause.

On July 1, 1975, Petitioner filed a response

to the notice to show cause, pointing out that a

summary judgment did not lie because of unresolv-

ed issues of fact, despite Respondent's General

Counsel's improper attempt to eradicate the issues,

and that a hearing was required to resolve issues

raised by Petitioner's objections to the election.

On July 1, 1975, Petitioner also filed m-

tions for reconsideration and to revoke certifi-

cation, pointing out, among other things, that

the certification of the Union was invalid in

that the Regional Director was in possession of

facts sufficient to establish a prima facie case

to set aside the election, and that if contro-

- 15 -

tere wee

verting facts were also known by the Regional

Director, a hearing was in order to resolve

factual issues. The motions were denied by the

Respondent in a telegram dated July 18, 1975.

On January 16, 1975, Respondent issued a

decision and order granting the General Counsel's

motion for summary judgment, and finding that

Petitioner's refusal to recognize and bargain

with the certified Union violated Sections 8 (a)

(5) and (1) of the National Labor Relations Act.

Respondent's order requires Petitioner to cease

and desist from the conduct found unlawful, and

from in any like or related manner interfering

with, restraining, or coercing its employees in

the exercise of statutory rights. Affirmatively,

the order requires Petitioner to bargain collect-

ively upon request with the Union, and to post

notices.

On November 18, 1976, Respondent's order

was enforced by the United States Court of Ap-

peals for the Fifth Circuit, which had jurisdic-

- 146-

tion of the application by virtue of Section 10

(e) of the National Labor Relations Act, as

Amended.

Constitutional and Statutory Provisions Involved

United States Constitution

Amendment V

"No person shall....be deprived of life, li-

berty, or property without due process of law..."

Statutes (In Pertinent Part)

National Labor Relations Act, §8(a) (1) and

(5), 29 U.S.C. §158(a) (1) and (5).

(a) It shall be an unfair labor practice

for an employer -

"1." To interfere with, restrain, or coerce

employees in the exercise of the rights guaran-

teed in Section 157 of this Title;

xee

"5." To refuse to bargain collectively

with the representative of his employees, sub-

ject to the provisions of Section 159(a) of

this Title."

National Labor Relations Board Rules and

Regvlati®ns, “Complaint - When and by Wham Is-

sued; Contents; Service", §102.15 [29 C.F.R.

§102.15).

“After a charge has been filed, if it ap-

-17<-

pears to the regional director that formal

proceedings in respect thereto should be in-

stituted, he shall issue and cause to be serv-

ed upon all other parties a formal complaint in

the name of the Board stating the unfair labor

practice and containing a notice of hearing be-

fore an administrative law judge at a 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 representatives by whom committed.

[23 F.R. 7972, Aug. 6, 1963).

National Labor Relations Board Rules and Re-

gulations, “Complaint - Amendment", §102.17 [29

C.F.R. §102.17].

"Any such complaint may be amended upon such

- 18 -

terms as may be deemed just, prior to the

hearing, by the regional director issuing the

complaint; at the hearing and until the case

has been transferred to the Board pursuant to

§102.45, upon motion, by the administrative law

judge designated to conduct the hearing; and

after the case has been transferred to the Board

pursuant to §102.45, at any time prior to the is-

suance of an order based thereon, upon motion,

by the Board."

National Labor Relations Board Rules and Re-

gulations, §102.69(f), [29 C.F.R. §102.69(f)].

"In a case involving a consent election

held pursuant to §102.62(b), if exceptions are

filed, either to the report on challenged bal-

lots or objections, or both if it be a consoli-

dated report, and it appears to the Baord that

such exceptions do not raise substantial and ma-

terial issues with respect to the conduct or

results of the election, the Board may decide

the matter forthwith upon the record, or may

make other disposition of the case. If it ap-

e 19 «

pears to the Board that such exceptions raise

substantial and material factual issues, the

Board may direct the regional director or other

agent of the Board to issue and cause to be serv-

ed on the parties a notice of hearing on said ex-

ceptions before a hearing officer...."

Administrative Procedures Act, §554(b) (3),

(5 U.S.C.A. §554(b) (3)).

"Persons entitled to notice of an agency

hearing shall be timely informed of.... the mat-

ters of fact and law asserted."

Reasons for Granting the Writ

One reason for granting the Writ is that

the questions presented arise from an extreme

example of a typical instance of administrative

abuse by Respondent, a consequence of which is

frequent disobeyance of Respondent's orders.

The resulting litigation often concerns, as here,

important Federal questions which arise in the

area of Respondent's adminstrative discretion,

and which should be resolved in this Court. The

two questions presented here, the circumstances

- 20 <

in which Respondent must hold a hearing, and

the extent which Respondent must adhere to pro-

cedural rules and standards, are among the most

litigated.

Another reason for granting the Writ is

that this case represents, in its entirety, such

flagrant denial of procedural due process as to

call for an exercise of this Court's power of

supervision.

Respondent's refusal to hold a hearing af-

ter Petitioner had submitted a prima facie case

for setting aside the election, when Respondent

was in possession of conflicting evidence, vio-

lated Respondent's own Rules and denied procedur-

al due process.

The evidence submitted by Petitioner to the

Regional Director in support of its Objection 3

to the election, under long-established Fifth

Circuit law, clearly sets forth a prima facie

case for setting aside the election. Thus, Pe-

titioner's evidence demonstrated that Baker was

ao

a supervisor, that he was the spark plug and

the spearhead of the union organizational and

pre-election propaganda campaigns, and that the

Company promptly terminated Baker after learning

of his union activities. (See N.L.R.B. v. Air

Control Prod. of St. Petersburg, Inc., 335 F2d

245 (5th Cir., 1966); and N.L.R.B. v. Lamar Elec.

Membership Corp., 362 F2d 505 (5th Cir., 1966).

That the Regional Director was in posses-

sion of conflicting evidence, is indicated by the

disparity between his Report and the affidavits

and other evidence submitted by Petitioner. Re-

spondent's own Regulations provide, in stipulat-

ed consent elections, for a post-election hear-

ing to resolve objections to an election "if it

appears to the Board that such exceptions raise

substantial and material fact issues...." [29

C.F.R. §102.69(f)].

Respondent's finding of violations neither

alleged in the complaint nor litigated at a hear-

ing violates the Administrative Procedures Act,

- 22 -

Respondent's own Rules and Regulations, and pro-

cedural due process. The Administrative Proce-

dure Act, 5 U.S.C. §554(b) provides that: "Per-

sons entitled to notice of an agency hearing

shall be timely informed of....the matters of

fact and law asserted." Respondent's own Regula-

tion, at 29 C.F.R. §102.15, states:

"After a charge has been filed, if it ap-

pears to the regional director that formal pro-

ceedings in respect thereto should be instituted,

he shall issue and cause to be served upon all

other parties a formal conplaint in the name of

the Board stating the unfair labor practices and

containing a notice of hearing before an adminis-

trative law judge at a 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

- 23-

seers

PO ee

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."

Further, an impressive line of Fifth Cir-

cuit and other cases hold specifically that find-

ings of violations neither alleged nor litigated

at a hearing may not be made (See, e.g. Boyles

Corned Beef Co. v. N.L.R.B., 400 F2d 154 (8th

Cir., 1968); Engineers & Fabricators, Inc. v.

N.L.R.B., 376 F2d 482 (5th Cir., 1963); and

N.L.R.B. v. Tamper, Inc., 522 F2d 78 (4th Cir.,

1975). As th> Court said in Engineers & Fabri-

cators, Inc., supra, at p. 485:

"It offends elemental concepts of procedur-

al due process to grant enforcement to a find-

ing neither charged in the complaint nor liti-

gated at the hearing.”

Respondent, in refusing to require its

General Counsel to amend the complaint after

the defect was pointed out by Petitioner, de-

- 24 -

monstrated an administrative arrogance and con-

tempt for procedural due process which should

not be countenanced, particularly when Respond-

ent's own Regulations (29 C.F.R. §102.17) allow

for amendment of complaint almost at will.

Apparently, the notice requirement in the

complaint amendment regulation is offensive to

Respondent, and would interfere with its obvious

desire to “railroad through" its order in this

case.

This is a case in which Respondent has den-

ied Petitioner due process at every opportunity.

The administrative handling of this matter reeks

of abuse and should be corrected. The volume

of litigation among the Courts of Appeal in the

areas involved testifies that this was not an

isolated instance, and that this Court's guid-

ance is urgently needed.

Conclusion

For the reasons set forth above, it is re-

spectfully submitted that this Petition for a

- 6 -

Writ of Certiorari should be granted

2537 S. Gessner, Suite 126

Houston, Texas 77063

(713) 977-0401

- : - 26 -

222 NLRB No. 58 D--723

Houston, Texas

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

TEAMSTERS, GENERAL DRIVERS,

WAREHOUSEMEN AND HELPERS

LOCAL UNION NO. 968

DECISION AND ORDER

Upon a charge filed on December 18,

1974, by the Teamsters, General Drivers, Ware-

housemen and Helpers Local Union No. 968, here-

in called the Union, and duly served on Handy

Hardware Wholesale, Inc., herein called the Re-

spondent, the General Counsel of the National

Labor Relations Board, by the Acting Regional

Director for Region 23, issued a complaint on

December 27, 1974, against Respondent, alleging

that Respondent had engaged in and was engaging

A-1

in unfair labor practices affecting commerce

within the meaning of Section 8(a) (5) and (1)

and. Section 2(6) and (7) of the National Labor

Relations Act, as amended, Copies of the charge,

complaint, and notice of hearing before an Ad-

ministrative Law Judge were duly served on the

parties to this proceeding.

With respect to the unfair labor prac-

tices, the complaint alleges in substance that

on November 13, 1974, following a Board elec-

tion in Case 23--RC--4098, the Union was duly

certified as the exclusive collective-bargain-

ing representative of Respondent's employees in

the unit found appropriate ;2/ and that, com

icial notice is taken of the record in the

representation proceeding, Case 23--RC—4098,

as the term "record" is defined in Secs. 102.68

and 102.69(f) of the Board's Rules and Regqula-

tions, Series 8, as amended. See LTV Electro-

Systems, Inc., 166 NLRB 938 (1967), enfd. 388

F2d 683 (C.A. 4, 1963); Golden Bever. Co.,

167 NLRB 151 (1967), enfd. 415 75 26 (C.A. 5,

1969); In Go. v. Penello, 269 F.Supp.

573 (D.C. Ve 1567) ; Tlett Corp., 164 NLRB

378 (1967), enfd. 397 F2d 91 (C.A. 7, 1968);

Sec. 9(d) of the NLRA.

A-2

mencing on or about November 15, 1974, and at

all times thereafter, Respondent has refused,

and continues to date to refuse, to bargain col-

lectively with the Union as the exclusive bar-

gaining representative, although the Union has

requested and is requesting it to do so. On

January 6, 1975, Respondent filed its answer to

the complaint admitting in part, and denying in

part, the allegations in the conplaint.

On January 20, 1975, counsel for the

General Counsel filed directly with the Board

a Motion tc Transfer and Continue Case Before

the Board and for Summary Judgment. On January

30, 1975, Respondent filed an opposition there-

to. On February 10, 1975, counsel for the Gen-

eral Counsel filed an amendment to his Motion,

a response to the Respondent's opposition, and

a motion to strike portions of Respondent's

answer as sham. Subsequently, on February 14,

1975, the Board issued an order transferring

the proceeding to the Board and a Notice To

A-3

Show Cause why the General Counsel's Motion for

Summary Judgment should not be granted. On Fe-

bruary 18, 1975, Respondent filed an opposition

to the General Counsel's February 10, 1975, a-

mendment, his response to opposition, and his

motion to strike; and on February 20, 1975, it

filed an Application to Stay the Order Transfer-

ring the Proceeding to the Board. On June 12,

1975, the Board denied Respondent's application

to stay. Respondent thereafter filed a response

to Notice to Show Cause.

Pursuant to the provisions of Section

3(b) of the National Labor Relations Act, as a-

mended, the National Labor Relations Board has

delegated its authority in this proceeding to a

three-member panel.

Upon the entire record in this proceed-

ing,2/ the Board makes the following:

Ruling on the Motion for Summary Judgment

27 The General Counsel's amendment to his motion

to transfer and for summary judgment is hereby

granted.

A-4

In its answer to the conplaint, its op-

position to the motion for summary judgment, and

to the amendment thereto, and in its response to

the Notice To Show Cause, Respondent basically

questions the validity of the underlying repre-

sentation proceeding and the resulting certifi-

cation of the Union because of its objections to

the election and the failure to hold a hearing

thereon, which it now requests. In addition,

the Respondent asserts there are issues as to

the allegations of a request and refusal to bar-

gain which require a hearing. We find no merit

in the flespondent's contentions.

An examination of the record in Case 23

—RC--4098 reveals that an election conducted on

July 3, 1974, pursuant to a Stipulation for Cer-

tification Upon Consent Election resulted in a

vote of 19 for and 1 against the Union, with 13

challenged ballots which were not sufficient to

affect the results of the election. Respondent

filed timely objections to conduct affecting the

A-5

results of the election, alleging, in substance,

that an official notice of election was defaced

to show a preference for the Union, that an em

ployee was threatened in order to secure her

signature on a union authorization card, and that

the Union utilized the services of one of Respon-

dent's supervisors in its preelection campaign.

After investigation, the Regional Director, on

August 30, 1974, issued his Report and Recommen-

dations on Objections to Conduct Affecting the

Results of the Election in which he recommended

that the objections be overruled in their en-

tirety and that the Board certify the Union. Re-

spondent filed timely exceptions to the Region-

al Director's report and the Board, on November

13, 1974, issued a Decision and Certification

of Representative in which it adopted the find-

ings and recommendations of the Regional Direc-

tor and certified the Union as exclusive bargain-

ing representative of employees in the stipulated

appropriate unit.

A-6

It is well settled that in the absence

of newly discovered or previously unavailable

evidence or special circumstances a respondent

in a proceeding alleging a violation of Section

8(a) (5) is not entitled to relitigate issues

which were or could have been litigated in a

prior representation proceeding. 2/

All issues, except as discussed herein-

after, raised by the Respondent in this proceed-

ing were or could have been litigated in the

prior representation proceeding, and the Respond-

ent does not offer to adduce at a hearing any

newly discovered or previously unavailable evi-

dence, nor does it allege that any special cir-

cumstances exist herein which would require the

Board to reexamine the decision made in the re-

presentation proceeding. We therefore find that

the Respondent has not raised any issue which

is properly litigatable in this unfair labor

3/ See Pittsburgh Plate Glass Co. v. N.L.R.B.,

313 U.S. 146, 162 (1941); Rules and Regulations

of the Board, Secs. 102.67(f) and 102.69(c).

A-7

practice proceeding. 4/

With respect to its contention that it

is entitled to a hearing on its objections, we

find it to be without merit as the Board has

held, with judicial approval, that evidentiary

hearings are not required in unfair labor prac-

tice cases where, as here, there are no substan-

tial or material facts to be determined and in

such cases summary judgment is appropriate. 2/

The Respondent also contends that its

answer alleging lack of knowledge of requests to

bargain and a denial of a refusal to bargain

raises issues warranting a hearing. We disagrec.

In his amended motion, counsel for the General

4/ In addition to its attack upon the validity

of the underlying representation proceedings,

the Respondent, in its answer, also denies its

status as an employer engaged in commerce, the

Union's status as a labor organization, and the

appropriateness of the unit. These matters were

stipulated by the Respondent and were so found

in Case 23--RC--4098 and may not be relitigated

herein.

5/ Janler Plastic Mold Corporation, 191 NLRB 662

(1971); Crest Leather Manufacturing Corporation,

167 NLRB 1085 (1967), and the cases cited there-

in.

A-8

Counsel has alleged letter requests for bargain-

ing dated November 15 and December 5, 1974, and

January 16, 1975, supported by attached Exhibits

P, Q, and R, two of which show service by certi-

fied mail. The contents of these letters have

not been controverted by the Respondent and

therefore are deemed to be true, and establish

requests to bargain from November 15, 1974. Fur-

ther, the allegation of counsel for the Sines

Counsel that the Respondent has failed to re-

spond to the requests despite the passage of a

reasonable time stands uncontroverted and is ac-

cepted as true, and establishes the refusal to

bargain as of November 15, 1974.°/ Accordingly,

we shall grant the General Counsel's Motion for

6/ Jason/Empire, Inc., 212 NLRB No. 21 (1974).

The Respondent also denies, because of alleged

lack of knowledge, the filing and serivce of the

unfair labor practice charge as alleged in the

complaint. Attached to the General Counsel's

Motion for Summary Judgment as Exhs. A and B are

copies of the charge and the affidavit of service

thereof. These exhibits stand uncontroverted

- and are deemed to be true, and establish the fil-

ing and service of the charge as alleged.

A-9

Summary Judgment.

On the basis of the entire record, the Board

makes the following:

Findings of Fact

I. The Business of the Respondent

Respondent, a Texas corporation with

its principal office and place of business in

Houston, Texas, is engaged in the wholesale dis-

tribution of commercial hardware. During the

past 12 months Respondent purchased goods and

materials valued in excess of $50,000.00 from

suppliers located outside the State of Texas.

We find, on the basis of the foregoing,

that Respondent is, and has been at all times

material herein, an employer engaged in commerce

within the meaning of Section 2(6) and (7) of

the Act, and that it wiil effectuate the poli-

cies of the Act to assert jurisdiction herein.

II. The Labor Organization Involved

Teamsters, General Drivers, Warehouse-

men and Helpers Local Union No. 968 is a labor

A-10

| BEST COPY AVAILABLE

organization within the meaning of Section 2(5)

of the Act.

III. The Unfair Labor Practices

A. The Representation Proceeding

l. The unit

The following employees of the Respond-

ent constitute a unit appropriate for collective-

bargaining purposes within the meaning of Sec-

tion 9(b) of the Act:

All truckdrivers, production

and maintenance employees, in-

Cluding stockmen, order fillers,

warehouse helpers and porters,

but excluding office clerical

employees, sales and conmission

employees, watchmen, guards and

supervisors as defined in the

Act.

2. The certification

ui July 3, 1974, a majority of the em

ployees of Respondent in said unit, in a secret

ballot election conducted under the supervision

of the Regional Director for Region 23 designat-

ed the Union as their representative for the pur-

pose of collective bargaining with the Respond-

A-11

ent. The Union was certified as the collective-

bargaining representative of the employee in said

unit on November 13, 1974, and the Union con-

tinues to be such exclusive representative with-

in the meaning of Section 9(a) of the Act.

Commencing on or about November 15,

1974, and at all times thereafter, the Union has

requested the Respondent to bargain collectively

with it as the exclusive collective-bargaining

representative of all the employees in the above-

described unit. Commencing on or about November

15, 1974, and continuing at all times thereafter

to date, the Respondent has refused, and con-

tinues to refuse, to recognize and bargain with

the Union as the exclusive representative for

collective bargaining of all employees in said

unit.

Accordingly, we find that the Respond-

ent has, since November 15, 1974, and at all

times thereafter, refused to bargain collectively

A-12

with the Union as the exclusive representative

of the employees in the appropriate unit, and

that, by such refusal, Respondent has engaged in

and is engaging in unfair labor practices within

the meaning of Section 8(a) (5) and (1) of the

Act.

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent set forth

in section III, above, occurring in connection

with its operations described in section I, a-

bove, have a close, intimate, and substantial

relationship to trade, traffic, and conmerce a-

mong the several States and tend to lead to la-

bor disputes burdening and obstructing commerce

and the free flow of commerce.

V. The Remedy

Having found that Respondent has engag-

ed in and is engaging in unfair labor practices

within the meaning of Section 8(a) (5) and (1) of

the Act, we shall order that it cease and desist

therefrom, and, upon request, bargain collective-

A-13

ly with the Union as the exclusive representative

of all employees in the appropriate wnit, and,

if an understanding is reached, embody such un-

derstanding in a signed agreement.

In order to insure that the employees

in the appropriate unit will be accorded the

services of their selected bargaining agent for

the period provided by law, we shall construe

the initial period of certification as beginning

on the date Respondent commences to bargain in

good faith with the Union as the recognized bar-

gaining representative in the appropriate unit.

See Mar-Jac Poultry Company, Inc., 136 NLRB 785

(1962), enfd. 328 F2d 600 (C.A. 5, 1964), cert.

denied 379 U.S. 817 (1964); Burnett Construction

Company, 149 NLRB 1419, 1421 (1964), enfd. 350

F2d 57 (C.A. 10, 1965).

The Board, upon the basis of the fore-

going facts and the entire record, makes the

following:

Conclusions of Law

A-14

1. Handy Hardware Wholesale, Inc., is

an employer engaged in commerce within the mean-

ing of Section 2(6) and (7) of the Act.

2. Teamsters, General Drivers, Ware-

housemen and Helpers Local Union No. 968 is a

labor organization within the meaning of Section

2(5) of the Act.

3. All truckdrivers, production and

maintenance employees, including stockmen, order

fillers, warehouse helpers and porters, but ex-

cluding office clerical employees, sales and

commission employees, watchmen, guards and super-

visors as defined in the Act, constitute a unit

appropriate for the purposes of collective bar-

gaining within the meaning of Section 9(b) of

the Act.

4. Since November 13, 1974, the above-

named labor organization has been and now is the

certified and exclusive representative of all er

ployees in the aforesaid appropriate unit for the

purpose of collective bargaining within the mean-

A-15

ing of Section 9(a) of the Act.

5. By refusing on or about November 15,

1974, and at all times thereafter, to bargain

collectively with the above-named labor organiza-

tion as the exclusive bargaining sepatenntativs

of all the employees of Respondent in the appro-

priate unit, Respondent has engaged in and is

engaging in unfair labor practices within the

meaning of Section 8(a) (5) of the Act. ‘

6. By the aforesaid refusal to bargain,

Respondent has interfered with, restrained, and

coerced, and is interfering with, sestreinion,

and coercing, employees in the exercise of the

rights guaranteed to them in Section 7 of the

Act, and thereby has engaged in and is engaging

in unfair labor practices within the meaning of

Section 8(a) (1) of the Act.

7. The aforesaid unfair labor practices

are unfair labor practices affecting conmerce

within the meaning of Section 2(6) and (7) of the

Act.

A-16

a

ORDER

Pursuant to Section 10(c) of the Nation-

al Labor Relations Act, as amended, the National

Labor Relations Board hereby orders that Respond-

ent, Handy Hardware Wholesale, Inc., Houston,

Texas, its officers, agents, successors, and as-

signs, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively

concerning rates of pay, wages, hours, and other

terms and conditions of employment with Teamsters,

General Drivers, Warehousemen and Helpers Local

Union No. 968 as the exclusive bargaining repre-

sentative of its employees in the following ap-

propriate unit:

All truckdrivers, production

and maintenance employees, in-

Cluding stockmen, order fillers,

warehouse helpers and porters,

but excluding office clerical

employees, sales and commission

employees, watchmen, guards and

supervisors as defined in the

Act.

(b) In any like or related manner in-

A-17

terfering with, restraining, or coercing employ-

ees in the exercise of the rights guaranteed

them in Section 7 of the Act.

2. Take the following affirmative ac-

tion which the Board finds will effectuate the

policies of the Act:

(a) Upon request, bargain with the a-

bove-named labor organization as the exclusive

representative of all employees in the aforesaid

appropriate unit with respect to rates of pay,

wages, hours, and other terms and conditions of

employment, and, if an understanding is reached,

embody such understanding in a signed agreement.

(b) Post at its place cf business in

Houston, Texas, copies of the attached notice

marked "Appendix. nl/

Copies of said notice, on

77 In the event that this Order is enforced by

a Judgment of a United States Court of Appeals,

the words in the notice reading "POSTED BY ORDER

OF THE NATIONAL LABOR RELATIONS BOARD” shall

read "POSTED PURSUANT TO A JUDGMENT OF THE UNIT-

ED STATES COURT OF APPEALS ENFORCING AN ORDER OF

THE NATIONAL LABOR RELATIONS BOARD.”

A-18

forms provided by the Regional Director for Re-

gion 23 after being duly signed by Respondent's

representative, shall be posted by Respondent

immediately upon receipt thereof, and be main-

tained by it for 60 consecutive days thereafter,

in conspicuous places, including all places

where notices to employees are customarily post-

ed. Reasonable steps shall be taken by Respond-

ent to insure that said notices are not altered,

defaced, or covered by any other material.

(c) Notify the Regional Director for Re-

gion 23 in writing, within 20 days from the date

of this Order, what steps have been taken to com

ply herewith.

Dated, Washington, D. C. Jan. 16, 1976

Howard Jenkins, Jr., Member

John A. Penello, Member

Peter D. Walther, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

A-19

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively

concerning rates of pay, wages, hours, and other

terms and conditions of employment with Teamsters,

General Drivers, Warehousemen and Helpers Local

Union No. 968, as the exclusive representative

of the employees in the bargaining unit describ-

ed below.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce our employees

in the exercise of the rights guaranteed them by

Section 7 of the Act.

WE WILL, upon request, bargain with the a-

bove-named Union, as the exclusive representative

of all employees in the bargaining unit described

below, with respect to rates of pay, wages, hours,

and other terms and conditions of employment,

A-20

and, if an understanding is reached, embody such

understanding in a signed agreement. The bar-

gaining unit is:

All truckdrivers, production and main-

tenance employees, including stockmen,

order fillers, warehouse helpers and

porters, but excluding office clerical

employees, sales and commission employ-

ees, watchmen, guards and supervisors

as defined in the Act.

Dated

HANDY HARDWARE WHOLESALE, INC.

“(Enployer)

By:

(Representative) (Title)

This is an official notice and must not be

defaced by anyone.

This notice must remain posted for 60 conse-

cutive days from the date of posting and must

not be altered, defaced, or covered by any other

material. Any questions concerning this notice

or compliance with its provisions may be directed

to the Board's Office, One Allen Center, 500 Dal-

las Avenue, Suite 920, Houston, Texas 77002

A-21

Telephone 713--226--4722.

A-22

N. L. R. B. v. HANDY HARDWARE WHOLESALE, INC. 66

NATIONAL LABOR RELATIONS

BOARD, Petitioner,

v.

HANDY HARDWARE WHOLESALE,

INC., Respondent.

No. 76-1793

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

Nov. 18, 1976.

The National Labor Relations Board

sought enforcement of its order that an

employer bargain collectively with a un-

ion which had won a representation elec-

tion. The Court of Appeals, Clark, Cir-

cuit Judge, held that the NLRB properly

denied a hearing on the employer's con-

tentions concerning alleged defects in

the election.

Enforced.

1. Constitutional Law @=275(5)

National Labor Relations Board’s

regulations providing for hearing when

“substantial and material factual issues”

as to propriety of representation election

are present comported with all require-

ments of due process. National Labor

Relations Act, §§ 1 et seq., &a)X1, 5) as

amended 29 U.S.C.A. §§ 151 et seq.,

158(aX1, 5).

2. Labor Relations ¢=673

Because of large degree of discre-

tion accorded to National Labor Rela-

tions Board in its determination whether

to hold hearing on propriety of manner

in which representation election was

held, considerable weight must be as-

signed to Board’s determinations and ju-

dicial review must be limited to reasona-

bleness of such determination; it does

not matter that reviewing court might

have reached different conclusions if

Board has resolved case reasonably. Na-

tional Labor Relations Act, § 8(a)1, 5) as

amended 29 U.S.C.A. § 158(a)(1, 5).

3. Labor Relations e214

National Labor Relations Board act-

ed reasonably in denying credence to em-

ployer’s argument that altered sample

ballot on NLRB poster announcing rep-

resentation election did not necessitate

hearing on propriety of manner in which

election was conducted. National Labor

Relations Act, § 8(a\1, 5) as amended 29

U.S.C.A. § 158(a)1, 5).

4. Labor Relations e214

Burden is on party seeking to over-

turn representation election to show by

specific evidence not only that unlawful

acts occurred but also that such acts suf-

ficiently inhibited free choice of employ-

ees as to affect materially the results of

election. National Labor Relations Act,

§ Sal, 5) as amended 29 US.C.A.

§ 158(a\(1, 5).

5. Labor Relations e596

National Labor Relations Board act-

ed reasonably in accepting regional di-

rector’s conclusion that evidence that de-

mand was made on employee “for the

last time” that she sign union authoriza-

tion card showed, at best, only ambigu-

ously a threat. National Labor Rela-

tions Act, § Sal, 5) as amended 29

U.S.C.A. § 158(a1, 5).

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970,

431 F.2d 409, Part I.

Synopees, Syllabi and Key Number Classification

COPYRIGHT © 1976, by WEST PUBLISHING CO.

The Synopees, Syliabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

A- 23

67 N. L. R. B. v. HANDY HARDWARE WHOLESALE, INC.

6. Labor Relations 210

Participation of supervisor in union

election undermines “laboratory condi-

tions” necessary for unfettered choice.

\ tional Relations Act, § 8(a)1, 5) as

amended 29 U.S.C.A. § 158a\1, 5).

7. Labor Relations *=207

National Labor Relations Board’s

determination as to whether employee is

“supervisor” within meaning of National

Labor Relations Act is entitled to great

weight, as expertise of Board is uniquely

capable of measuring subtle gradations

of authority which delineates supervisor

from nonsupervisory personnel. Nation-

al Labor Relations Act, § 211) as

amended 29 U.S.C.A. § 152(11).

8. Labor Relations 211

National Labor Relations Board act-

ed reasonably in determining that since

employee who was allegedly supervisor

had not been employed by employer dur-

ing last six weeks of representation elec-

tion period, impermissible coercion re-

sulting from such employee's favoritism

for union was inconceivable. National

Labor Relations Act, § 2(11) as amended

29 U.S.C.A. § 152(11).

9. Labor Relations 683

Where union’s complaint before Na-

tional Labor Relations Board alleged re-

fusal of employer to bargain “to date,” it

sufficiently notified employer of grounds

of charges against it and employer was

not prejudiced by action of counsel for

Board in amending motion for summary

judgment so as to allege additional in-

stance of failure to bargain which was

relevant and obviously an outgrowth of

earlier allegation. National Labor Rela-

tions Act, § 10(b) as amended 29 US.

C.A. § 160(b); App. 29 U.S.C.A. Rules

and Regulations, § 102.15; 5 U.S.C.A.

§ 554(b).

On Application for Enforcement of an

Order of the National Labor Relations

Board (Texas Case).

Before DYER, CLARK and HILL, Cir-

cuit Judges.

CLARK, Circuit Judge:

The National Labor Relations Board

(Board) seeks enforcement of its order

that Handy Hardware Wholesale, Inc.

(Handy Hardware) bargain collectively

with the Teamsters, General Drivers,

Warehousemen and Helpers Loca! Union

No. 968 (the Union). After an election,

the Board certified the Union as the of-

ficial representative of a unit of employ-

ees at Handy Hardware. Handy refused

to bargain by alleging three improprie-

ties attributable to the Union during the

representation election campaign. The

Board rejected all three allegations in a

summary judgment. Handy Hardware

contends before this court that the

Board's refusal to accord it a hearing on

its allegations and the Board's grant of

leave to its General Counsel to amend

the complaint deprived it of due process.

Rejecting the contentions of Handy

Hardware, we enforce the Board’s order

to bargain.

Handy Hardware is a Texas corpora-

tion engaged in the wholesale distribu-

tion of commercial hardware. The

events underlying this cause occurred at

its principal offices in Houston. On May

10, 1974, the Union filed a petition with

the Board seeking to represent at Handy

Hardware

{ajll truckdrivers, production and

maintenance employees, _ including

stockmen, order fillers, warehouse

helpers and porters but excluding of-

fice clerical employees, sales and com-

mission employees, watchmen, guards,

and supervisors as defined in the [Na-

tional Labor Relations] Act. [61 Stat.

A-24

N. L. R. B. v. HANDY HARDWARE WHOLESALE, INC. 68

136, 73 Stat. 519, 29 U.S.C. 151 et

seq.].

The Board-conducted election on July 3,

1974, resulted in 19 votes for the Union,

one opposed, and 13 ballots challenged.

Since the contested ballots could not

change the outcome of the election, no

resolution as to them was attempted.

On July 9, 1974, objections to the elec-

tion were filed by Handy Hardware,

complaining of 1) the alteration of a

sample ballot included on an official

Board notice of the election to show a

vote for the Union; 2) threats to an

employee in an attempt to acquire her

signature on a Union authorization card;

and 3) participation by a Handy Hard-

ware supervisor in the propaganda cam-

paign in behalf of the Union. The

Board’s regional director refused the re-

quested hearing but did conduct his own

investigations into the complaints. His

report recommended that the objections

be overruled and the election certified.

Handy Hardware’s exceptions to the re-

gional director’s report alleged misstate-

ments and omissions. The Board adopt-

ed the findings of the regional director

and certified the election.

Handy Hardware refused to bargain

with the Union. The regional director

issued a complaint on December 27, 1974,

alleging this refusal as an unfair labor

practice. Handy Hardware denied that

a continuing request by the Union to

bargain existed. It also attacked the

suitability of the bargaining unit. On

February 14, 1975, the Board issued an

order to show cause why summary judg-

ment against Handy Hardware should

not be granted. After various responses

by all sides, the Board granted the mo-

tion for summary judgment and found

Handy Hardware guilty of unfair labor

practices under 29 U.S.C. § 158(aX1) and

(5) in refusing to bargain.

A-25

{1,2} We have examined the actions

of the Board in light of the following

legal principles. No post-election eviden-

tiary hearing in a representation pro-

ceeding is required by statute. How-

ever, the Board has provided by regula-

tion for a hearing when “substantial and

material factual issues” are present. 29

C.F.R. § 102.68(f). Such a procedure

comports with all requirements of due

process. N.L.R.B. v. White Knight Mfg.

Co., 474 F.2d 1064 (5th Cir. 1973). Un-

der this regulation, a party objecting to

an election must present a prima facie

case consisting of “specific evidence of

specific events from or about specific

people” which, if true, would necessitate

the invalidation of the election. NL.

R.B. v. Carlton McLendon Furniture Co.,

Inc., 488 F.2d 58, 61 (5th Cir. 1974);

United Steelworkers of America, AFL—

CIO v. N.L.R.B., 496 F.2d 1342, 1348 (5th

Cir. 1974). Because of the large degree

of discretion accorded to the Board, con-

siderable weight must be assigned to its

determinations. Judicial review must be

limited to the reasonableness of such de-

terminations. N.L.R.B. v. Golden Age

Bev. Co., 415 F.2d 26, 29 (5th Cir. 1969).

It does not matter that the reviewing

court might have reached different con-

clusions if the Board has resolved the

case reasonably. White Knight Mfg.

Co., supra.

{3] In its order certifying the Union

as a bargaining agent, the Board adopt-

ed the findings and conclusions of the

regional director’s report. In discussing

Handy Hardware’s complaint about the

altered sample ballot portion of the

Board poster announcing the election,

the regional director found that on June -

28, 1974, five days prior to the election, a

superintendent at Handy Hardware saw

a small crowd gathered around one of

69 N. L. R. B. v. HANDY HARDWARE WHOLESALE, INC.

the election notices. When the superin-

tendent was noticed by the crowd, it

started to disperse. One of the employ-

ees stated he had been “caught.” It was

noticed that an “X” was placed in both

the “yes” and “no” squares on the sam-

ple ballot and that the name “Jorge”

was written on the ballot, the same first

name as that of the employee who stated

he had been “caught.” The sample bal-

lot was replaced. Approximately three

days after the election, another election

notice was found, still posted, which has

an “X” marked in the “yes” block signi-

fying a vote for the Union. No evidence

was presented as to the amount of time

the sample ballot had remained posted in

this defaced form.

In discounting the presence of the bal-

lot found three days after the election,

the regional director observed that no

evidence was offered to show the altera-

tion occurred prior to the election and

found the almost instantaneous removal

of the previous defaced sample ballot

prevented any possible improper influ-

ence on the election. The potential im-

propriety of an altered official election

notice is the chance that an employee

will believe the Board, who is responsible

for the posting of the notices, has signi-

fied its favoritism for one side in the

election. It is too obvious to warrant

further comment that the Board could

reasonably deny credence to this argu-

ment in the instant situation. N.L.R.B.

v. John S. Barnes, 478 F.2d 1105, 1107

(7th Cir. 1973).

{4,5} The second objection concerned

an alleged threat to a female employee

to get her signature on a union autho-

rization card, which the regional director

recommend be overruled for lack of evi-

dence. The only indication of the basis

of this objection is a statement in a let-

ter from Handy Hardware to the region-

al examiner. The letter maintained

that, if a hearing were held, an employee

named Angelina Hopkins would state

that an employee was sent to her by

another employee to demand “for the

last time” that she sign a union autho-

rization card but that she refused to

sign. The burden is on the party seek-

ing to overturn the election to show by

specific evidence not only that unlawful

acts occurred but also that such acts suf-

ficiently inhibited the free choice of em-

ployees as to affect materially the re-

sults of the election. Fones v. N.L.R.B.,

431 F.2d 417, 420 (5th Cir. 1970). Handy

Hardware’s letter allegation without

supporting evidence does not prove the

occurrence of the event, much less dem-

onstrate an adverse effect on the elec-

tion. Assuming one such event occurred,

a demand “for the last time” that an

authorization card be signed is at best

only ambiguously a threat. We find the

Board’s acceptance of this conclusion by

the regional director to be reasonable.

[6] The final question resolved by the

regional director concerns the possibility

that an employee named Dennis Baker,

who without question worked strenuous-

ly in behalf of the Union, was a compa-

ny supervisor. It has frequently been

held that the participation of a supervi-

sor in a union election undermines the

“laboratory conditions” necessary for an

unfettered choice. N.L.R.B. v. Decatur

Transfer & Storage Co., 430 F.2d 763,

764 (5th Cir. 1970); Home Town Foods,

Inc. v. N.L.R.B., 416 F.2d 392, 396 (5th

Cir. 1969); Turner’s Express, Inc. v. N.L.

R.B., 456 F.2d 289, 290 (4th Cir. 1972).

As explained in various Board opinions,

the threat posed by the participation of

a supervisor is twofold. First, if a su-

pervisor takes a stance in favor of the

Union, even though the employer does

not otherwise indicate its position, his

A- 26

N. L. R. B. v. HANDY HARDWARE WHOLESALE, INC. 70

association with the management hier-

archy, in an employee’s perception, could

indicate employer support for the Union.

Second, if a supervisor influences hiring

and firing or in other respects holds sub-

stantial power over an employee, the su-

pervisor’s participation in the election

could have a coercive effect on other

employees. Stevenson Equip. Co., 174

N.L.R.B. No. 865; Turners Express, Inc.,

189 N.L.R.B. No. 106. This is true even

if the employer, as here, openly urged

the defeat of the Union, since the super-

visor might well be able to recommend if

not actually cause the dismissal or other

adverse treatment of the employee, dis-

guising the true motives of the recom-

mendation in innumerable ways. The

likelihood of such occurrences is less im-

portant than the possibility that an em-

ployee might fear such retribution and

act accordingly.

[7] The issue of whether an employee

is actually a supervisor is a recurring

and difficult one. N.L.R.B. v. Security

Guard Serv., Inc., 384 F.2d 143, 145 (5th

Cir. 1967). The standards for determin-

ing this question are established by the

definition of “supervisor” contained in 29

U.S.C. § 152(11).'. The Board’s determi-

nation on this issue is entitled to great

weight, as the expertise of the Board is

uniquely capable of measuring the subtle

gradations of authority which delineate

the supervisor from non-supervisory per-

sonnel. Trailmobile Div., Pullman, Inc.

v. N.L.R.B., 379 F.2d 419, 422 (5th Cir.

1967). However, we find it unnecessary

to weigh the evidence to see if the Board

1. , : : . ;

(11) The term “supervisor” means any individ-

ual having authority, in the interest of the em-

ployer, to hire, transfer, suspend, lay off, re-

call, promote, discharge, assign, reward, or

discipline other employees, or responsibly to

A-27

has reached a reasonable conclusion in

this thorny area because we find beyond

peradventure that a secondary conclusion

reached by the Board is sound.

{8} The evidence disclosed that when

Baker began working for the Union af-

ter the petition for a Union election was

filed, Baker went to his immediate supe-

rior and asked to be relieved of such

supervisory duties as he had pending the

election. His superior, Superintendent

Smith, demanded that he remain in his

old duties as no immediate replacement

was available. Baker refused and re-

verted to his former work. This resulted

in Baker’s discharge six days later. Con-

temporaneous with his dismissal, the

company announced that Baker was be-

ing discharged since he was a “supervi-

sor” and had been engaging in Union

activities. Had Baker worked for the

Union while occupying a supervisory

role, Handy Hardware could properly

have dismissed him for this activity.

Florida Power & Light Co. v. Internat.

Bro. of Elec. Workers, Local 641, 471

U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477

(1974). However, our pretermission of a

decision as to his supervisory status like-

wise pretermits adjudication of the cor-

rectness of his discharge. It was reason-

able for the Board to determine that

since Baker was not employed by Handy

Hardware during the last six weeks of

the election period, impermissible coer-

cion resulting from his favoritism for the

Union was inconceivable.

To demonstrate the potential for such

coercion, Handy Hardware offered an

direct them, or to adjust their grievances, or

effectively to recommend such action, if in

connection with the foregoing the exercise of

such authority is not of a merely routine or

clerical nature, but requires the use of inde-

pendent judgment.

71 N. L. R. B. v. HANDY HARDWARE WHOLESALE, INC.

affidavit of an employee which stated

that a few nights before the election the

affiant attended a meeting of Union

sympathizers. It was asserted by some-

one at the meeting that Baker did not

have to be concerned about his job since

he would be able to regain it imminent-

ly. The basis for this statement appar-

ently was the fact that Baker had filed

an unfair labor practice complaint with

the Board concerning his firing. Follow-

ing the election, his complaint was set-

tled and he was rehired by Handy Hard-

ware. Handy Hardware’s argument is

indeed attenuated. First it assumes that

Baker was a supervisor; next that em-

ployees knew, although then discharged,

he probably would be reemployed, and

reemployed in a supervisory capacity.

One would then have to conclude that

this likelihood of reemployment acted co-

ercively on employees who feared that,

once rehired, Baker would take retribu-

tion against them if they had not sup-

ported the Union.

The question of whether this conduct

or, more aptly, probability of future con-

duct, tended to interfere with employees’

free choice is primarily committed to the

discretion of the Board. N.L.R.B. v.

Sumter Plywood Corp., 535 F.2d 917 (5th

Cir., 1976). We find that discretion was

reasonably exercised in this case.

{9} The final contention raised by

Handy Hardware alleged that during the

unfair labor practice proceeding initiated

on December 27, 1974, the General Coun-

sel of the Board was improperly allowed

in effect to amend his complaint without

complying with statutory requirements,

29 U.S.C. § 160(b). The challenged ac-

tion related to one paragraph of the

complaint which alleged that the Union

had continued from November 15, 1974,

“to date” to request that Handy Hard-

ware bargain. In its answer, Handy

Hardware alleged that it did not have

knowledge sufficient to reply to this

statement. The General Counsel then

filed a motion to transfer and continue

the case before the Board and for sum-

mary judgment. In this motion, no men-

tion was made of the statement by

Handy Hardware that it had no knowl-

edge of the Union’s continuing attempts

to bargain. Subsequently the motion for

summary judgment was amended, admit-

ting that the allegation concerning lack

of knowledge as to requests by the Un-

ion to bargain was overlooked. Three

documents were appended allegedly

demonstrating these requests, one of

which post-dated the December 27 com-

plaint. Handy Hardware refers us to

several precedents which have denied en-

forcement of Board orders which were

based on findings of acts constituting

unfair labor practices, when such acts

were not alleged in the complaint.

Two operative rules need to be con-

sidered in reaching out decision. The

Board’s own regulation provides, 29

C.F.R. § 102.15:

; The complaint shall contain

(a) a clear and concise statement of

the facts upon which assertion of jur-

isdiction by the Board is predicated,

and (b) a clear and concise description

of the acts which are claimed to con-

stitute unfair labor practices, includ-

ing, where known, the approximate

dates and places of such acts and the

names of respondent’s agents or other

representatives by whom committed.

The Administrative Procedure Act, 5

U.S.C. § 554(b) states:

Persons entitled to notice of an agency

hearing shall be timely informed of—

(3) the matters of fact and law as-

serted.

A-28

N. L. R. B. v. HANDY HARDWARE WHOLESALE, INC. 72

However, these standards are not to be

applied with the particularity of formal

court pleadings. Bob's Casing Crews,

Inc. v. N.L.R.B., 458 F.2d 1801 (5th Cir.

1972). It is the function of these plead-

ings to put the employer on notice as to

the basis of the charges against him.

Engineers & Fabricators, Inc. v. N.L.

R.B., 376 F.2d 482 (5th Cir. 1963); NL.

R.B. v. Scenic Sportswear, 475 F.2d 1226

(6th Cir. 1973).

The objection raised by Handy Hard-

ware is that though the complaint al-

leged refusal to bargain “to date,” i. e.,

the date of the complaint, the Board con-

sidered evidence of a later refusal with-

out amending the complaint. The case

upon which Hardy Hardware principally

relies did not deal with an enlargement

of the time period in which violations

occurred, but instead dealt with a com-

plaint which specifically alleged two vio-

lations, did not contain a “catch-all”

clause which would apprise the employer

that other acts might be alleged as viola-

tions, and resulted in a conclusion by the

court that the employer had been denied

due process when other acts were proven

and relied upon in the Board’s decision.

Boyle's Famous Corned Beef Co. v. N.L.

R.B., 400 F.2d 154 (8th Cir. 1967).

The additional instance of failure to

bargain proven here did not constitute a

separate unfair labor practice but was

instead a continuation of the same ille-

gality alleged in the complaint. There

was no specific reliance by the Board

upon the complained-of evidence of re-

fusal to bargain. Moreover, just as

courts have allowed consideration of

events prior to the six month statute of

limitations governing the filing of

charges of unfair labor practices in order

to “cast light on those events within the

six months period,” N.L.R.B. v. Homes

Tuttle Broadway Ford, Inc., 465 F.2d

717, 718 (9th Cir. 1972); Local Lodge No.

1424 v. N.L.R.B., 362 V.S. 411, 80 S.Ct.

822, 41 L.Ed.2d 832 (1960), so the same

principle is applicable to such closely re-

lated events post-dating the complaint.

Stewart Die Casting Corp. v. N.L.R.B.,

114 F.2d 849, 857 (7th Cir. 1940), cert.

denied, 312 U.S. 680, 61 S.Ct. 449, 85

L.Ed. 1119 (1941), petition for order

modifying denied, 129 F.2d 481 (1942).

As the alleged violation in the present

case was a failure to bargain, the contin-

uing failure past the date of the com-

plaint was relevant and obviously an

outgrowth of the earlier allegation.

Handy Hardware was sufficiently noti-

fied by the complaint of the grounds of

the charges against it and was not preju-

diced by the amended motion of the

Counsel to the General Counsel.

The order of the Board that Handy

Hardware must bargain with the Union

is therefore

ENFORCED.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

A29

Vv. No. 76-1793

HANDY HARDWARE

WHOLESALE, INC.,

Respondent

JUDGMENT

Before: DYER, CLARK, and HILL, Circuit Judges.

THIS CAUSE was submitted upon an applica-

tion of the National Labor Relations Board for

enforcement of an order issued by it against

Respondent, Handy Hardware Wholesale, Inc., of

Houston, Texas, its officers, agents, successors,

and assigns, on January 16, 1976. The Court,

having carefully considered the birefs (sic) and

transcript of record filed in this cause, and

being fully advised in the premises, and having

determined the case appropriate for summary dis-

position without oral argument, on Novenber 18,

1976, handed down its decision granting enforce-

ment of the Board's Order. In conformity there-

A-30

with, its is hereby IN THE con aan tee pon OF APPEALS

ORDERED AND ADJUDGED by the United States |

Court of Appeals for the Fifth Circuit that the

” d No. 76-1793

said order of the National Labor Relations Board

in said proceeding be enforced, and that the Re-

NATIONAL LABOR RELATIONS BOARD,

spondent, Handy Hardware Wholesale, Inc., Hous- ao

Petitioner,

ton, Texas, its officers, agents, successors, |

and assigns, abide by and perform the directions

of the Board in said order contained.

ENTERED: December 10, 1976

Issued as Mandate: January 26, 1977

On Application for Enforcement of an Order of

the National Labor Relations Board (Texas Case)

ON PETITION FOR REHEARING

January 10, 1977

Before DYER, CLARK and HILL, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehear-

ing filed in the above entitled and numbered

cause be and the same is hereby denied.

ENTERED FOR THE COURT:

A-31 - /s/ Charles Clark

United States Circuit Judge

A-32