Petition — Stouffer Corp. v. National Labor Relations Board
Supreme Court brief1978
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[ AEL RODAK, JR., CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
No. 27 =F729
THE STOUFFER CORPORATION, d/b/a STOUFFER’S
CINCINNATI INN,
Petitioner,
V.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
HOTEL, MOTEL, RESTAURANT EMPLOYEES AND BARTENDERS UNION,
LOCAL 12 OF THE HOTEL AND RESTAURANT EMPLOYEES AND
BARTENDERS’ INTERNATIONAL UNION, AFL-CIO,
Intervenor.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
for the Sixth Circuit
GERALD TOCKMAN
706 Chestnut, Suite 1010
St. Louis, Missouri 63101
(314) 241-8909
Attorney for Petitioner
St. Louis law Printing Co.. Inc., 812 Olive Street 63101 314-231-4477
TABLE OF CONTENTS
Page
ED, Sos cet bees 6 he Ot Reena wea ceD 2
ecient bebe se hha bheds saasaw es 2
Ee eee re eee ee 2
EE oS 24.5 nbn bbeewescs ceaetusteeasns 4
ye rey err re rrr 4
Reasons for Granting the Writ ............ccccceees 10
A. No “rule” of this Court denies review of final
determinations adverse to an employer party to rep-
POSSMAMTIOM PTOCCOGIMGS .. wc ccc cccceceees 14
B. “Parties” cannot be denied review when ag-
grieved by final board orders denying substantive stat-
See GD 6.44.60450 00s Camas ede heenns concede 18
C. Review of final board orders, adverse to an em-
ployer party to representation proceedings, is consist-
ent with the statutory scheme and constitutionally
PPP TELL TTT Pee CTT eT eT ee 21
D. The decision of the Court of Appeals is in con-
flict with principles of review confirmed by this Court
and determines the extent to which review should be
available under circumstances that should be decided
Be Ge GEE Waceccbeccevews cseveecueebesis 23
re eo a i ee eee a en 25
Table of Cases
Abbott Laboratories v. Gardner, 387 U.S. 136, 140
SR rh i ke as ean. are tl 12, 21, 22
American Federation of Labor v. National Labor Relations
ee ee esas 10, 11, 14, 15, 24
Bays v. Miller, 524 F.2d 631 (9th Cir. 1975) .......... 20
Bethesda-Chevy Chase Broadcasters v. FCC, 385 F.2d 967,
| I ae ee 22
Boire v. Greyhound Corporation, 376 U.S. 473, 11 L.Ed.
2d 849 (1964) ....... ee a ueue 14, 15, 16, 17, 20, 24, 25
Califano v. Goldfarb, — U.S. —, 51 L.Ed.2d 270 at 274,
ad ie eee ce eles 's wale 23
Califano v. Sanders, — U.S. —, 51 L.Ed.2d 192
NN rare hire one aera ke tee 11, 12, 21, 23, 24, 25
Cities Service Gas Company v. Federal Power Commission,
255 F.2d 860 (10th Cir.), cert. denied, 385 U.S. 837
PRs ERP rr Or ay peer r ye 18
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
Geer GED 6 eRSEC cated eek nGutseneneeusiedes 22
Deering Milliken v. Johnston, 295 F.2d 856, 859 (4th
BC Vk dKecdeudeces ea enaareensdaweuen 12, 21
Eastern Greyhound Lines v. Fusco, 323 F.2d 477 (6th Cir.
SE hdd GG we evaressdecinndbetbetaccetads 14, 15, 16
Isbrandtsen Company v. U.S., 211 F.2d 51 (D.C. Cir.),
cert. denied, 347 U.S. 990 (1954) ............... 18, 22
Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18 (1976) 23
Prairie Construction Co. v. Operating Engineers, 425 U.S.
a Fe FT Pree 12
Retail Store Employees Union, Local 954 v. Rothman, 298
F.2d 300 (D.C. Cir. 1962) ....... cece cceeececees 21
Squillacote v. Teamsters Local 344, — F.2d —, 95 LRRM
- a. Be M.S eerrrr rr ere rere 20, 24
Templeton v. Dixie Color Printing Co., 444 F.2d 1064
EDs conc bdo ee See. coeeeeesocsseeses’s 21
Timken-Detroit Axle Co. v. NLRB, 197 F.2d 512 (6th
St, MEE sen sedeeadeeedion + eedersoewvevenenns 14, 15
U. S. v. Storer Broadcasting, 351 U.S. 192 (1956) ...... 22
Weinberger v. Salfi, 422 U.S. 749, 45 L.Ed.2d 522 (1975) 23
Table of Authorities
5 US.C. §§ 701-706 ...............005. 3,4, 8, 11, 12, 21
gg. ancdaccussvecpucsecs 2
29 US.C. $$ 151, et 809. ......... eee eeeee cece ees: 4
29 U.S.C. § 152(2) .......... eee eee eee 4, 8,9, 10, 12, 16
es cuss vwaisscnsusdwns 6
WOE bO0NND ........2...0.05..6: 3,4, 5,9, 13, 16
oo. cc uccaude duh wiisiadnas 3,4
29 US.C. § 159d) .......... 3, 6, 8, 10, 15, 16, 19, 22, 23
29 U.S.C. § 160(e) ........ 3, 6, 8, 10, 15, 16, 19, 20, 22, 23
29 U.S.C. § 160(f)......... 3, 6, 8, 10, 15, 16, 18, 19, 22, 23
H. Rep. No. 972, 74th Cong., Ist Sess 20 ............ 20
S. Rep. No. 573, 74th Cong., Ist Sess. 14 ............ 20
iV
INDEX TO APPENDICES
Page
Decision and Direction of Election of the National Labor
Relations Board Dated September 8, 1976 (225 NLRB
BE, BOER cccccccectiocesessunete A-1
Letter Dated November 22, 1976 From The Stouffer Cor-
poration to the Cincinnati S$.1. Company ............ A-18
Letter Dated November 22, 1976 From The Stouffer Cor-
poration to Hotel, Motel, Restaurant Employees and
Bastenders’ Union Local 12 ..........cccccccccees A-20
Letter Dated November 29, 1976 From Arthur H. Fried-
man to The Stouffer Corporation .................. A-22
Petition for Review of The Stouffer Corporation d/b/a
Stouffer's Cincinnati Inn Dated February 11, 1977 and
Docketed February 14, 1977 .................... A-24
Motion for Leave to Intervene of Hotel, Motel, Kestaurant
Employees and Bartenders’ Union Local 12 ........ A-27
Motion of Petitioner for Entry of Default Judgment Dated
Rags 06, GROG . . occesecceeesesucuene A-30
Order Entered and Filed April 29, 1977 ............. A-32
Motion of the National Labor Relations Board to Dismiss
Petition for Review and Memorandum of Points and
Authorities in Support, Dated April 29, 1977 ...... A-34
May 17, 1977 Notification of the Filing of the Certified
List, With Certified Lists Attached ................ A-41
Petitioner's Opposition to Motion to Dismiss and Support-
ing Memorandum of Points and Authorities Dated May
BB, GEUE oc cccccvcccassocsuneeaen eee A-46
a at ae ith tie alin: ana
Response of the National Labor Relations Board to Peti-
tioner’s Opposition, Dated June 2, 1977 ............ A-61
Intervenor’s Memorandum of Points and Authorities in
Support of Motion to Dismiss, Dated June 3, 1977 . .A-65
Joint Motion of the National Labor Relations Board and
Intervenor Local 12 to Extend Time for Filing Briefs
and Appendix, Dated July 15, 1977 .............. A-77
Order of the Court of Appeals for the Sixth Circuit Entered
ee coc chctcesesceccecce: A-80
Petition for Rehearing and Suggestion for Rehearing En
Banc of The Stouffer Corporation ................ A-82
Order of the Court of Appeals for the Sixth Circuit Entered
EE A, UY fo ccc ccc cccccccccccces A-91
eee eres eee ccc ce ecoesccess A-92
IN THE
_ SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1977
ae ra,
THE STOUFFER CORPORATION, d ba STOUFFER’S
CINCINNATI INN,
Petitioner,
V.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
HOTEL, MOTEL, RESTAURANT EMPLOYEES AND BARTENDERS UNION,
LOCAL 12 OF THE HOTEL AND RESTAURANT EMPLOYEES AND
BARTENDERS’ INTERNATIONAL UNION, AFL-CIO,
intervenor.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
for the Sixth Circuit
Petitioner, The Stouffer Corporation d/b/a Stouffer's Cin-
cinnati Inn, a party to a representation proceeding before the
National Labor Relations Board, seeks a writ of certiorari to
review the decision of the United States Court of Appeals for the
Sixth Circuit which became final on August 24, 1977. That
decision, dismissing petitioner's petition for review of a de-
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to
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cision of the National Labor Relations Board adverse to peti-
tioner, was premised solely upon an asserted “longstanding rule”
of this Court that certification proceedings are not subject to
review in the appellate courts.
OPINIONS BELOW
The unreported Order of the Court of Appeals dismissing
petitioner's petition for review is reproduced at Appendix A-80,
inten.
The unreported Order of the Court of Appeals denying peti-
tioner’s petition for rehearing and suggestion for rehearing en
banc is reproduced at Appendix A-91.
The decision of the National Labor Relations Board adverse to
petitioner for which review was sought in the Court of Appeals
(App. A-1) is reported at 225 NLRB No. 170.
JURISDICTION
The order of the Court of Appeals dismissing petitioner's
petition for review was filed and entered on July 15, 1977 and
became final on August 24 when the order of the Court of Ap-
peals denying petitioner's petition for rehearing en banc was
filed and entered.
The jurisdiction of this Court to review the Court of Appeals’
dismissal of petitioner's petition for review is invoked under 28
U.S.C. Section 1254(1).
QUESTIONS PRESENTED
(1) Whether an employer party to representation proceedings
before the National Labor Relations Board, whose status as an
employer of and appropriate unit contentions with regard to
employees covered by a petition for representation under Section
9(c) of the National Labor Relations Act (29 U.S.C. Section
159(c)) are adversely determined by thé National Labor Rela-
tions Board, is barred from judicial review of such agency deter-
minations because such determinations foreclosed the “tra-
ditional” avenue of review of certification proceedings under
Sections 9(d), 10(e) and 10(f) of the Act (29 U.S.C. Sections
159(d), 160(e) and 160(f))?
(2) Whether an employer party to representation proceedings
before the National Labor Relations Board, whose position as a
joint employer and contention that a unit limited to the em-
ploying entity with which it jointly operates is not appropriate
under Section 9(b) of the Act (29 U.S.C. Section 159(b)) have
been finally and adversely decided by the National Labor Rela-
tions Board, can be constitutionally denied judicial review
simply because the “traditional” statutory method of review is
not available?
(3) Whether an employer party to representation proceedings
before the National Labor Relations Board whose status as a
joint employer and unit contentions have been adversely and
finally decided may challenge and obtain judicial review of such
federal administrative action under and pursuant to Section
10(f) of the Act (29 U.S.C. Section 160(f)) and Section 10 of the
Administrative Procedure Act (5 U.S.C. Sections 701-706)
where, as here, the “usual” (and only) statutory review scheme
has been made inoperative by conduct of anotner employer
party to the same representation proceedings?
(4) Whether access to judicial review of final agency action
under extraordinary circumstances not contemplated by Con-
gress or provided for under the statutory scheme of review can
be constitutionally proscribed where, as here, the conduct of
another employer party to the same representation proceedings
(i) denies petitioner its status as an “employer” under Section
vay yo
2(2) of the National Labor Relations Act (29 U.S.C. Section
152(2)) and (ii) results in a bargaining unit determined solely
upon decision of the “employer” issue, contrary to the provisions
of Section 9(b) of the Act (29 U.S.C. Section 159(b))?
STATUTES INVOLVED
The relevant provisions of the National Labor Relations Act,
as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sections 151,
et seq., are set forth at Appendix A-92.
The relevant provisions of the Administrative Procedure Act,
80 Stat. 392, 5 U.S.C. Sections 701 et seq., are set forth at
Appendix A-97.
STATEMENT OF THE CASE
This case originated from a representation proceeding con-
ducted by the National Labor Relations Board (herein “Board”)
upon a petition filed by Hotel, Motel, Restaurant Employees
and Bartenders’ Local 12 of the Hotel and Restaurant Employ-
ees and Bartenders’ International Union, AFL-CIO (herein
“Local 12”) under Section 9(c) of the National Labor Relations
Act (29 U.S.C. Section 159(c)). Although Local 12’s petition
named only Cincinnati S. I. Company, a limited partnership
d/b/a Stouffer’s Cincinnati Inn (herein “CSI”) as the “em-
ployer” of the less than hotelwide unit of “accommodations
employees” sought at Stouffer's Cincinnati Inn, The Stouffer
Corporation (herein “Stouffer Corporation”) requested and was
accorded leave to intervene and participate as a party to the
representation proceeding. In that proceeding, both the Stouffer
Corporation and CSI maintained and introduced evidence to
show (i) that Stouffer Corporation and CSI are joint employers
(within the meaning of Section 2(2) of the Act) of all employees
— ve
at Stouffer's Cincinnati Inn and (ii) that a less than hotelwide
unit of employees working in “accommodations classifications”
and excluding “food and beverage” classification employees is
inappropriate under Section 9(b) of the Act in a highly inte-
grated convention hotel like Stouffer's Cincinnati Inn. Upon
transfer of the representation proceeding to the Board for deci-
sion and following the submission of briefs by all parties includ-
ing the Stouffer Corporation, the Board issued its Decision and
Direction of Election on September 8, 1976 (Appendix A-1).
The Board's September 8, 1976 order, for which Stouffer
Corporation sought review in the Court of Appeals, determined
(i) that Stouffer Corporation and CSI are not joint employers
of the employees at Stouffer's Cincinnati Inn and, particularly,
that only CSI is the “employer” of the “accommodations classi-
fication” employees sought by Local 12 (Appendix A-9) and
(ii) that a less than hotelwide unit limited to the employees of
CSI and excluding the “food and beverage” classification em-
ployees found to be the “employees” of Stouffer Corporation
only is appropriate under Section 9(b) of the Act (Appendix
A-16). The Board’s determination that a less than hotelwide
unit is appropriate at Stouffer's Cincinnati Inn rested solely
upon the finding that Stouffer Corporation and CSI are not
“joint employers” under the operating agreement and methods
extant at Stouffer's Cincinnati Inn between the two business
entities (Appendix A-16).
In accord with the Board's order of September 8, an election
was conducted among “accommodations classification” em-
ployees at Stouffer’s Cincinnati Inn on October 8, 1976 and
Local 12 received a majority of the votes. On October 18,
the Board certified the election results and the status of Local
12 as collective bargaining representative of “accommoda-
tions classification” employees. On November 22, 1976 and
following a number of conferences in which Stouffer Corpora-
tion expressed its disagreement with the Board's findings and
_—
urged CSI to seek judicial review of those findings by the “tra-
ditional” refusal-to-bargain statutory scheme for review of bar-
gaining unit determinations (Sections 9(d), 10(e) or 10(f) of the
Act) then available only to CSI as a result of the Board's “em-
ployer” determination, Stouffer Corporation informed Local 12
and CSI of its intention to seek judicial review of the Board’s
determinations adverse to Stouffer Corporation (Appendix A-18,
A-20). On November 29, CSI rejected Stouffer Corporation's
request to suspend bargaining pending review (Appendix A-22);
no response was ever received from Local 12.
CSI, as “the employer” by operation of the Board's Septem-
ber 8 order, was the only employer party to the representation
proceeding in a position to make use of the statutory method for
judicial review of that order—e.g., “technical” refusal to bar-
gain under Section 8(a)(5) of the Act (29 U.S.C. Section 158
(a)(5)) to obtain a bargaining order subject to judicial review in
enforcement proceedings under Section 10(e) (29 U.S.C. Section
160(e)) or review proceedings under Section 10(f) (29 U.S.C.
Section 160(f)) which proceedings, by operation of Section
9(d) (29 U.S.C. Section 159(d)), then make the Board's cer-
tification proceedings reviewable. With the “traditional” method
of statutory review thus barred by CSI, the Stouffer Corpora-
tion—as a party to the representation proceedings before the
Board—docketed its petition for review with the Court of Ap-
peals on February 14, 1977 (Appendix A-24). That petition
sought, and seeks, judicial review of the Board's finial determina-
tions adverse to the Stouffer Corporation (i) that Stouffer Cor-
poration is not the joint employer along with CSI of all em-
ployees at Stouffer's Cincinnati Inn, including those doing “ac-
commodations work” and (ii) that a less than hotelwide unit
limited to “accommodations classification” employees and ex-
cluding “food and beverage classification” employees is appro-
priate at a highly integrated convention hotel.
On March 2, 1977, Local 12 filed its motion for leave to
intervene in the review proceedings and was granted intervenor
— oo
status (Appendix A-27). On April 11, no response having been
filed by the Board to the Stouffer Corporation's petition for re-
view, a motion for entry of default judgment was filed (Ap-
pendix A-30); by order entered and filed April 29, 1977 (Ap-
pendix A-32), the Court of Appeals denied the motion for de-
fault and directed the Board to file the certified list within 14
calendar days. Under date of April 29, the Board filed its mo-
tion to dismiss the petition for review (Appendix A-34) contend-
ing, among other things, that only CSI and not the Stouffer
Corporation was a party to the representation proceeding be-
fore the Board and therefore the Stouffer Corporation had no
“standing” to seek review of determinations adverse to it (Ap-
pendix A-35). On May 17, 1977 the Board filed its certified list
and all parties were directed to file briefs (Appendix A-41) with
the date for the filing of the appendix and Stouffer Corporation's
opening brief as petitioner eventually being set by the Court of
Appeals for July 26, 1977 as a result of the grants of requests
for extensions of time by the Stouffer Corporation, intervenor
Local 12 and the Board (Appendix A-77).
On May 24, 1977, the Stouffer Corporation filed its opposi-
tion to the Board's motion to dismiss (Appendix A-46) demon-
strating, by attachment of copies of the official report of the
representation proceedings before the Board (Appendix A-56),
that the Stouffer Corporation in fact was an employer party to
those proceedings. On June 2 and June 3 respectively, the
Board (Appendix A-61) and intervenor Local 12 (Appendix
A-65) responded to the Stouffer Corporation's opposition to dis-
missal of its petition for review. With the exception of simplistic,
and incorrect, assertions that the Stouffer Corporation was not
an employer party to the representation proceeding (Appendix
A-63) and that the only review method available with respect
to certification proceedings under Section 9 of the Act (29
U.S.C. Section 159) is the “traditional” refusal-to-bargain
method available to CSI only (Appendix A-62), the Board
neither in its motion nor in its response to the Stouffer Cor-
—
poration’s opposition addressed the extraordinary circumstances
present in this case or the jurisdictional bases for review upon
which the petition for review is based. Although intervenor
Local 12 attempted to deal with the issues more squarely (Ap-
pendix A-68), there was no denial of the fact that the unusual
circumstances of this case had neither been contemplated by ‘
Congress nor determinatively dealt with in any decided case.
By order filed and entered July 15, 1977—after the Stouffer
Corporation had completed its brief on the merits for filing
with the Court of Appeals on July 26 in accord with its di-
rections (Appendix A-78)—the Court of Appeals dismissed the
petition for review finding “no reason” for departure from an
asserted “long-standing rule” that certification proceedings “can-
not be reviewed in a Court of Appeals” (Appendix A-80).
Neither that order nor the Court of Appeals’ order filed and
entered on August 24 (Appendix A-91) denying Stouffer Cor-
poration’s petition for rehearing en banc (Appendix A-82) ad-
dressed the issues arising out of the admitted facts that (i)
certification proceedings are reviewable in the appellate courts
by way of the “traditional” method of refusal-to-bargain and
Sections 9(d), 10(e) or 10(f) of the Act (29 U.S.C. Sections 159
(d), 160(e), 160(f)); (ii) the “traditional” method for reviewing
certification proceedings, solely as a result of the Board's find-
ing that CSI alone was “the employer” under Section 2(2) of
the Act (29 U.S.C. Section 152(2)) and the conduct of CSI
in bargaining with Local 12, is not available here to the Stouf-
fer Corporation; (iii) denial of review to the Stouffer Corpo-
ration, an employer party to the representation proceedings,
would make unreviewable final agency actions adverse to the
rights and interests of the Stouffer Corporation contrary to
the expressions of Congressional understanding and intention
evinced in Section 10 of the Administrative Procedure Act (5
U.S.C. Sections 701-706) that judicial review should be widely
available to challenge the actions of federal administrative of-
ficials; (iv) the “longstanding rule” against review has never
—
been applied under circumstances like those here to bar review
of adverse determinations made final against a party solely as
a result of the nature of the adverse order (e.g., denial of “em-
ployer” status under Section 2(2) of the Act); (v) failure to
accord review will render “unreviewable” all final orders of
the Board in representation proceedings on the important legal
issues of “single employer’) or “joint employer” status under
Section 2(2) of the Act (29 U.S.C. Section 152(2)) whenever,
as here, the Board’s order is adverse to the existence of such a
legal relationship and the employing entity found to be the only
“employer” (here CSI) accepts such determination as to it while
the other employing entity (here the. Stouffer Corporation) is
“aggrieved” by the decision with respect to its “employer”
status (e.g., Section 10(f) of the Act); and (vi) according “non-
reviewability” to final Board orders against the existence of
“single employer” or “joint employer” status under Section 2(2)
of the Act (29 U.S.C. Section 152(2)), in the extraordinary cir-
cumstances here, will to the same extent make “non-review-
able” Board unit determinations based solely on the “employer”
issue contrary to the mandate of Section 9(b) of the Act (29
U.S.C. Section 159(b)).
=
REASONS FOR GRANTING THE WRIT
Introductory
The ramifications of a definitive determination of the rights
to judicial review of an employer party to representation pro-
ceedings conducted by the National Labor Relations Board
under Section 9 of the Act where the “traditional” statutory
review method is rendered inoperable by reason of the nature
of the adverse final order of the Board are important, mani-
fold and undecided by this Court. Similarly undecided, and of
equal substantive impact not only to the formation of national
labor policy but also to the application of constitutional prin-
ciple where extraordinary circumstances combine to foreclose
the presumed availability of judicial review of final agency ac-
tion, is the extent to which Section 10 of the Administrative
Procedure Act provides a basis for federal judicial review of
agency action in combination with and as a supplement to a
statutory scheme of review (29 U.S.C. Sections 9(d), 10(e), 10
(f)) the intended operation of which has been frustrated by an
unanticipated “gap”.
The absence of any dispositive resolution of the review
rights of an employer party to representation proceedings barred
from the statutory avenue solely as a result of a decision ad-
verse to its status as an “employer” under Section 2(2) of the
Act and the need for this Court’s decisive instruction on that
important issue are made evident by the decision of the Court
of Appeals in this case. Thus, without consideration of the
extraordinary circumstances and statutorily unanticipated fore-
closure of review that occurred here, the Court of Appeals de-
nied the only review available on the basis of an asserted
“longstanding rule” derived from this Court’s 1940 decision in
American Federation of Labor v. National Labor Relations
Board, 308 U.S. 401 (Appendix A-80). Although the “rule”
cited by the Court of Appeals is “longstanding” it neither dealt
with the circumstances present here—where a party to the repre-
sentation proceedings, with respect to whom the statutory scheme
of review contemplated that judicial review would at some
point be available, is barred from the review provided by the
conduct of another party to the same proceeding in a way not
contemplated by the siaiutory scheme—nor operates to foreclose
the presumption of availability of judicial review, here under-
scored by the design of the statute itself. American Federation
of Labor, on the contrary, turned upon the congressional policy
against delay in representation proceedings where, as in that
case, an entity not a party to the representation proceedings
and not claiming the denial of any statutory right by direct oper-
ation of an adverse Board order sought judicial review of a
Board unit determination; not being within the ambit of those
for whom the statutory scheme was designed to make review
available at some point, this Court simply determined that the
statutory scheme manifested Congress’ intent to foreclose review
jurisdiction to the union seeking it. In the matter here, the
Opposite is the case—the statutory scheme evidences Congress’
intent to make review available to an employer party but the
scheme has been frustrated by an unanticipated “gap” in its
operation.
Similarly undecided and requiring this Court's dispositive in-
struction is the extent to which Section 10 of the Administra-
tive Procedure Act (5 U.S.C. Sections 701-706) remains avail-
able to fulfill Congress’ intention and understanding that judicial
review should be widely available with respect to final and
adverse agency decisions where the statutory review method,
by extraordinary circumstances and an unanticipated “gap”, can-
not fulfill its intended purpose of assuring judicial review. Al-
though this Court's decision in Califano v. Sanders, — U.S. —,
51 L.Ed.2d 192 (1977) determined that the statutory scheme
there considered, viewed against the 1976 congressional re-
structuring of the scope of federal-question jurisdiction in the
=
federal district courts, demanded the conclusion that the APA
does not provide an “implied grant” of subject-matter jurisdic-
tion for review in the district courts of agency action (Id. at 51
L.Ed.2d 200-201), that determination is not dispositive of
and in fact particularly left open the “review” issues here. First,
the “assurance of review availability” purpose and effect of the
1976 expansion of federal-question jurisdiction in the district
courts are of no significance with respect to the constitutional
question of the availability of judicial review in the appellate
courts concerning matters ordinarily reviewable in such courts
only. Secondly, this Court’s decision in Califano did not decide
the APA issue presented here—e.g., whether Section 10 (5
U.S.C. Sections 701-706) and the congressional purpose under-
lying it can be read, in conjunction with a statutory scheme
of review, not to “imply” or “create” but to make operative a
statutory system of review made inoperable because of an un-
anticipated “gap” in a system clearly directed to assure review
rights. Third, this Court's decision in Califano, in distinguishing
those situations like the case here where constitutional claims
flowing from the denial of statutory rights (e.g., “employer”
status under 29 U.S.C. Section 152(2)) are presented, reinforces
the presumption of the availability of judicial review applicable
to this case where no other recourse from final agency action
exists (Id. at 51 L.Ed.2d 201-202). Cf., Abbott Laboratories
v. Gardner, 387 U.S. 136, 140 (1967); Deering Milliken v.
Johnston, 295 F.2d 856, 859 (4th Cir. 1961).
Dispositive determination of the undecided “review” issues
presented in this case is of particular importance when viewed
against this Court's decision in Prairie Construction Co. v. Op-
erating Engineers, 425 U.S. 800, 48 L.Ed.2d 382 (1976). Thus,
absent review availability in circumstances like the present case
where one employer party to a representation proceeding found
by the Board not to be a “joint” or “single” “employer” with
another business entity seeks to chalienge final orders of the
Board adverse to it on the “employer” and unit issues, the
—~ po
Board's resolution of the breadth or scope of an employer
entity or its Operation will be determinative of the unit scope
under Section 9(b) (29 U.S.C. Section 159(b)). Not only
is such a result contra this Court's determination that decision
of the “employer issue” is not dispositive of the appropriate unit
question (Id. at 425 U.S. 805, 48 L.Ed.2d 386-387) but, in
combination with the foreclosure of review improperly imposed
by the Court of Appeals, the result becomes unreviewable.
The summary set out here demonstrates that the problem of
clearly defining the review rights of an employer party to rep-
resentation proceedings conducted by the Board where the statu-
tory scheme of review is rendered inoperative solely as a result of
determinations adverse to the status of that employer as a
“party” is both a serious and recurring one, albeit the product of
an extraordinary set of circumstances not anticipated by Con-
gress. The absence of guidance from this Court with respect to
that problem, particularly in conjunction with the presumptive
availability of review of final agency action constitutionally man-
dated and often stressed by this Court, can only serve to pro-
mote expensive and time-consuming litigation as employer par-
ties to representation cases, unclear as to their rights upon denial
of their “employer” status in cases such as the present one, will
continue to seek judicial clarification with respect to the avenue
or avenues of judicial review available to them from final and
adverse Board orders.
Further, apart from the merits generally of resolution by this
Court of a problem which otherwise will inevitably give rise
to recurring disputes as adversely affected parties seek some
avenue of judicial review, certiorari is also sought because the
decision of the Court of Appeals is inconsistent with the dem-
onstrable intent of Congress in providing a statutory scheme for
the review of certification proceedings and conflicts with de-
cisions mistakenly cited by the Court of Appeals here in dis-
—"
missing the Petition for Review (Appendix A-81).' In addi-
tion, the decision of the Court of Appeals erroneously disre-
gards but, in effect, assumes as resolved the “review” issues not
disposed of by this Court's decisions in American Federation of
Labor v. National Labor Relations Board, supra, and Boire v.
Greyhound Corporation, 376 U.S. 473, 11 L.Ed.2d 849 (1964).
A. No “rule” of this Court denies review of final determi-
nations adverse to an employer party to representation pro-
ceedings.
In summarily dismissing the petition of the Stouffer Corpo-
ration for review of final agency orders adverse to its positions
in a representation proceeding to which it was party, the Court
of Appeals did not address the issues of the extent to which
an adversely affected party can obtain review where a statutory
scheme emphasizing the availability of review breaks down as
a result of circumstances unforeseen by Congress. Nor did the
Court of Appeals examine the correlative question of the ex-
tent to which Section 10 of the APA and the congressional ob-
jective of assuring judicial review of final agency action re-
quires the provision of judicial review availability in circum-
stances where the statutory scheme and its intent to provide
review are frustrated. On the contrary, the Court of Appeals
simply accepted as dispositive the so-called “longstanding” rule
against judicial review of certification proceedings urged upon
it by the Board (Appendix A-62) and intervenor Local 12
(Appendix A-67) without analysis or examination of the mean-
ing. application and underpinnings of that “rule” or the inap-
posite decisions cited in support of the rule’s “longstanding”.
Meaningful examination and analysis of the “rule” asserted
by the Court of Appeals as a bar to the review sought here
1 Eastern Greyhound Lines v. Fusco, 323 F.2d 477 (6th Cir.
1963): Timken-Detroit Axle Co. v. NLRB, 197 F.2d 512 (6th Cir.
1952).
eg —
—_ =
illustrates that, to the extent a “rule” exists, it is not applicable
and, on the contrary, its basis argues in favor of the review de-
nied by the Court of Appeals. In particular, this Court’s de-
cisions in American Federation of Labor v. National Labor Re-
lations Board, supra and more specifically in Boire v. Greyhound
Corporation, supra, demonstrate that the “rule” against non-
statutory review of Board certification proceedings is based
upon certain factors whose absence in this case not only make
the “rule” not applicable but require the review sought in the
Court of Appeals. First, in this Court's decisions as well as in
its earlier decisions cited by the Court of Appeals,? the entities
seeking review were either not parties to the underlying repre-
sentation proceedings or had available that review provided by
the “traditional method” of the statutory scheme of review. Thus,
in American Federation of Labor v. National Labor Relations
Board, supra and in Timken-Detroit Axle Co. v. NLRB,? neither
the union nor the employer entities respectively involved in those
cases were parties to the representation proceedings or, in the
“normal” operation of the statutory review procedures, would
have had any judicial review available under the “traditional
method” of Sections 9(d), 10(e) or 10(f) (29 U.S.C. Sections
159(d), 160(e) or 160(f)). In Boire v. Greyhound Corpora-
tion, supra and Eastern Greyhound Lines v. Fusco,* on the
other hand, the employers seeking review in those cases were
parties to the representation proceedings but sought review in
the federal district courts rather than availing themselves of the
Statutory scheme available to them through the “traditional
method.” Secondly, and the only rationale common to all these
cases in which non-statutory judicial review was denied, was the
fact that the provision of such review would work against the
2 Eastern Greyhound Lines v. Fusco, 323 F.2d 477 (6th Cir.
toate Timken-Detroit Axle Co. v. NLRB, 197 F.2d 512 (6th Cir.
l ).
* 197 F.2d 512 (6th Cir. 1952).
+ 323 F.2d 477 (6th Cir. 1963).
—_—
congressional policy expressed by Sections 9(d), 10(e) and
10(f) of assuring review in a manner that does not delay repre-
sentation proceedings. Third, in those cases in which an em-
ployer or union entity within the intended scope of the statutory
review scheme was involved (Boire v. Greyhound Corporation,
supra; Eastern Greyhound Lines v. Fusco, supra) no “rule” was
advanced that the adverse decisions were not subject to judicial
review but, on the contrary, that no reason existed for granting
an avenue of review in addition to the “traditional method”
available under the statute.
Thus, to the extent parties seeking review were not parties
to the underlying representation proceedings, the “rule” derived
from the decisions is simply that such parties have no “standing”
to seek judicial review from adverse Board orders not within the
scope of rights intended to be covered by the statutory scheme
of review. On the other hand, the “rule” derived from the de-
cisions dealing with parties to the underlying representation pro-
ceedings whose rights are within the intended scope of review
provided by the statutory scheme is simply that since that method
of judicial review is available, no reason consistent with the con-
gressional purpose of avoiding delay exists for departure from
the statutory scheme to “create” an additional method. Appli-
cation of these “rules” to the facts here, balanced against the
constitutionally mandated and congressionally expressed pre-
sumption of the availability of review, conclusively shows that
the Court of Appeals erroneously denied the petition for review
in that (i) the Stouffer Corporation was an employer party to
the underlying representation proceedings (ii) the statutory
rights of the Stouffer Corporation as an “employer” under Sec-
tion 2(2) of the Act and the unit contentions expressed by the
Stouffer Corporation with regard to the criteria deemed neces-
sary for determination under Section 9(b) of the Act were ad-
versely determined to the Stouffer Corporation by the Board
(iii) these adverse determinations of the Board, because of the
conduct of another employer party to the representation proceed-
ings, became final as to the Stouffer Corporation (iv) such final
—_
and adverse Board orders and the rights of the Stouffer Corpora-
tion denied by them are within the intended scope of rights as-
sured judicial review by the statutory scheme of the Act (v) as a
result of conduct of another employer party to the same repre-
sentation proceedings whose status as the only “employer” re-
sulted from the Board’s determinations adverse to the Stouffer
Corporation, the assurance of review for which the statutory
scheme was designed became unavailable in a manner neither
contemplated by the statutory scheme nor by Congress in enact-
ing it and (vi) no other recourse from the final agency action
of the Board adverse to the Stouffer Corporation exists other
than that sought in the Court of Appeals. These specific facts
and circumstances, therefore, present the obverse of the facts
and circumstances considered by this Court in Boire v. Grey-
hound Corporation, supra where the order for which district
court review was sought determined that the employer entities
party to the review proceeding constituted a “single” or “joint
employer” so that either employer party had available to it the
usual method of judicial review available under the statutory
scheme—that method being available, this Court saw no reason
to depart from it by allowing the additional review avenue of
proceeding in the district court. Here, on the contrary, the
Board's order for which review is sought in the Court of Appeals
determined that the Stouffer Corporation and CSI did not consti-
tute a “single” or “joint” employer thus giving to CSI only the
review method available under the statutory scheme and denying
the availability of that review avenue to the Stouffer Corporation.
Departure from the statutory method of review, accordingly, is
not sought by the Stouffer Corporation—that avenue being un-
available solely by operation of the Board's final and adverse
order, the judicial review intended by Congress to be available
to parties like the Stouffer Corporation is sought on the bases
set out in the petition for review filed with the Court of Appeals.
Under the circumstances present here, review must be afforded
upon such bases consistent with congressional purpose and con-
stitutional principle.
—=
B. “Parties” cannot be denied review when aggrieved by
final board orders denying substantive statutory rights.
The critical issues of law and policy involved in this case were
not considered by the Court of Appeals. Those issues must
be addressed and resolved by this Court. In that respect,
analysis shows that the factor critical to reviewability of adverse
agency orders—“finality’—is present under the extraordinary
circumstances here.
A “final agency order” is one which denies a right, establishes
or affects a legal relationship or imposes an obligation. Cities
Service Gas Company v. Federal Power Commission, 255 F.2d
860 (10th Cir.), cert. denied, 385 U.S. 837 (1958). “Finality,”
and thus reviewability, must be evaluated through a “realistic
appraisal” of the consequences of agency action. _/sbrandtsen
Company vy. U.S., 211 F.2d 51 (D.C. Cir.), cert. denied, 347
U.S. 990 (1954). These criteria, when meaningfully considered
and applied to the facts of this case, demonstrate the requisite
“finality” of the Board's adverse orders with respect to the
Stouffer Corporation and illustrate that non-statutory review
is the only proper judicial response to the unique, extraordinary
and extreme circumstances of this case.
The essential facts to be considered are that by direct operation
of the Board’s adverse orders, denying “employer” status, the
Stouffer Corporation has been denied all rights to effectively set
standards for and directly affect the employment conditions of
employees it maintains are its employees. In this respect as well
as by reason of the Board’s unit determination based only upon
denial of its “employer rights”, the Stouffer Corporation—as
a “party” to the representation proceeding—is “aggrieved”®
* Section 10(f) of the Act (Appendix A-97) provides, in pertinent
par*, that “any person (‘employer’) aggrieved by a final order of the
Board . . . may obtain a review of such order in any circuit court
of appeals . . .”
—
and, because of the unavailability of the “traditional” means of
review, faced with “agency finality” absent the review sought in
the Court of Appeals. Further, the Stouffer Corporation's legal
relationships with CSI have been prejudicially altered vis-a-vis
its now diminished and perhaps non-existent ability to affect
terms and conditions of employment of persons found by the
Board to be employees of CSI alone. A “realistic appraisal”® of
these facts, in the context of the unanticipated foreclosure of the
“traditional” statutory scheme of review that occurred here
solely by reason of the nature of the Board’s order, conclusively
establishes the finality of the adverse orders for which review was
sought in the Court of Appeals.
The Board's adverse orders, “finally” denying the statutory
rights of the Stouffer Corporation, are distinguishable from the
“usual” situations erroneously relied upon by the Court of Ap-
peals in which Board determinations have been deemed to lack
“finality” because a party failed to, or chose not to, avail itself
of the “traditional” method of review. The exceptional and ex-
treme circumstances of this case, involving final orders which
deny the substantive rights of a party to Board proceedings and
an unforeseen foreclosure of the method of review provided by
Congress, present a situation neither contemplated nor intended
by Congress nor previously dealt with by the courts. Accord-
ingly, the petition for review here must be evaluated on its own
merits, in conjunction with congressional purpose and constitu-
tional principle.
The statutory scheme of review (29 U.S.C. §§ 159(d), 10(e),
10(f)) evidences a clear-cut congressional purpose to assure ju-
dicial review to parties adversely affected by Board certification
proceeding orders, once “final”. Insofar as extant precedent
(discussed and analyzed at Part A, supra) has denied non-statu-
tory judicial review, such denial—in the case of “parties” to
8 Annot., 47 L.Ed.2d 843, 851-852 (1976).
— pa
representation proceedings—has been grounded upon considera-
tions consistent with the statutory scheme and the congressional
purpose underlying it. Thus, provision of an avenue of judicial
review to adversely affected parties has been withheld where the
availability of statutory review through the “traditional” refusal
to bargain method exists and allowance of an additional or al-
ternative review medium would cause the kind of “delay” of
Board certification orders that the statutory scheme is designed
to preclude. Boire v. Greyhound Corporation, supra; Bays v.
Miller, 524 F.2d 631 (9th Cir. 1975); S. Rep. No. 573, 74th
Cong., Ist Sess. 14; H. Rep. No. 972, 74th Cong., Ist Sess. 20.
Neither the policy considerations against delay nor any as-
sumption that “traditional” review will be available at some
point are present here. “Traditional” review is admittedly not
possible because of the effect of the Board's orders denying the
Stouffer Corporation “employer” status and “delay” cannot re-
sult from the review sought in this case.’ On the contrary, non-
statutory review is not only consistent with but effectuates the
clear intent of Congress to provide an accessible means of review
to aggrieved parties when “finality” of agency action is con-
clusively established, as it is here. Further, provision of such
review is constitutionally mandated where, as here, non-statu-
tory review is the only recourse for challenge of adverse and
final agency action.
* Squillacote v. Teamsters Local 344, — F.2d —, 95 LRRM
2977 (7th Cir. 1977), among other such decisions, squarely recog-
nizes that the “presumptive” availability of review at some point is a
major premise of Section 10 of the Act (29 U.S.C. Sections 160(e),
160(f)) and that any “rule” against departure from that scheme of
review is grounded only upon preventing “litigious interruptions” of
Board processes (Id. at 2982-2983). ere the statutory scheme
does not work to protect the review rights of parties intended to be
assured review and “delaying interruption” is not a consequence, the
question of availability of non-statutory review requires other con-
siderations.
_—
C. Review of final board orders, adverse to an employer
party to representation proceedings, is consistent with the statu-
tory scheme and constitutionally mandated.
Critical statutory and constitutional questions concerning the
requirement that judicial review be available at some point under
the unique and extraordinary circumstances of this case should
have been, but were not, considered by the Court of Appeals.
That the Stouffer Corporation, solely as a result of the Board’s
adverse “employer” decision, had no other judicial or adminis-
trative remedy available to it other than review by the Court of
Appeals was not questioned. Nor was there any argument that
the only policy reasons for precluding non-statutory review—
“delay” or “circumvention” of the “usual method”—applied to
the facts here. Considered in conjunction with the “final” and
adverse dispositions made of the Stouffer Corporation's statutory
rights and the unavailability of “traditional” review under unique
circumstances neither intended nor contemplated by Congress,
significant and unusual questions of that assurance of review de-
manded by Section 10 of the APA (5 U.S.C. Sections 701-706)
in supplementation of and within the interstitial “gaps” of statutes
designed to assure review as well as the due process rights to
review foreclosed by unanticipated circumstances demanded and
now demand consideration and resolution. Califano v. Sanders,
— U.S. —, 51 L.Ed.2d 192, 199 (1977); Abbott Laboratories
v. Gardner, 387 U.S. 136, 140 (1967); Retail Store Employees
Union, Local 954 v. Rothman, 298 F.2d 300 (D.C. Cir. 1962);
Deering Milliken v. Johnston, supra at 859. Consideration and
meaningful determination of these questions, where as here it
is clear that judicial review has not been intentionally “withheld”
by Congress under extreme and unforeseen circumstances ad-
versely affecting and divesting a party of statutory rights to
which it claims entitlement, shows that review cannot be con-
stitutionally denied in this case. Templeton v. Dixie Color Print-
ing Co., 444 F.2d 1064 (Sth Cir. 1971).
=
In the unique circumstances present here and in light of an
express statutory recognition that judicial review should be
available to “parties” (e.g.. 29 U.S.C. Section 159(d), 160(e),
160(f)), review must be afforded within the purposes expressed
by the statutory scheme balanced against the congressional
intent expressed in Section 10 of the APA where “clear and
convincing” evidence that Congress sought to assure review is
shown. Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 410 (1971); Abbott Laboratories v. Gardner, supra. The
established “finality” of the Board's orders here with respect
to the Stouffer Corporation's asserted rights underscores and
strengthens its rights of reviewability and the importance of
the statutory and constitutional principles which were not con-
sidered or applied by the Court of Appeals.
The statutory and constitutional assurances of the rights of
“aggrieved” parties to seek review from “final” and adverse
agency actions, under the kind of extreme and unforeseen
circumstances present in this case, demonstrate that denial of
review will not be tolerated where it results in the abrogation of
rights conferred by Congress. This is particularly the case
where, as here. no “policy” reasons for withholding review
exist. E.g., Citizens to Preserve Overton Park v. Volpe, supra;
Abbott Laboratories v. Gardner, supra, U. S. v. Storer Broad-
casting, 351 U.S. 192 (1956); Bethesda-Chevy Chase Broad-
casters v. FCC, 385 F.2d 967, 968 (D.C. Cir. 1967); Js-
brandtsen Co. v. U. S., 211 F.2d 51, 55 (D.C. Cir.), cert.
denied, 347 U.S. 990 (1954). Substantive “review” rights
cannot properly be disposed of by easy reference to an asserted
“longstanding rule”. Those rights and the principles which
support them were neither considered nor applied by the Court
of Appeals. Consideration and application of those essential
factors, under the circumstances present here, demonstrates that
review is not only statutorily but constitutionally demanded
here
—23—
D. The decision of the Court of Appeals is in conflict with
principles of review confirmed by this Court and determines
the extent to which review should be available under circum-
stances that should be decided by this Court.
The statutory scheme of the National Labor Relations Act
with respect to certification or representation proceedings (29
U.S.C. Sections 159(d), 160(e), 160(f)) is designed to assure
to “parties” judicial review of final and adverse Board orders
through a method that is counter-balanced against that “de-
lay” to certification proceedings which Congress found objec-
tionable. In providing this scheme of review, consistent with
the objective of expediting certification proceedings, Congress
gave effect to its intent to assure review jurisdiction to “ag-
grieved” persons consistent with the same expression of its
intention that judicial review should be widely available ex-
pressed in Section 10 of the APA. Although the statutory
scheme of review provided in the National Labor Relations
Act has been rendered unworkable under the unique circum-
stances of this extraordinary case, that unanticipated and un-
foreseen flaw in the NLRA's scheme of review cannot be
deemed to carry with it a corresponding defect in the jurisdic-
tional supports to administrative review provided by the APA.
The decision of the Court of Appeals, however, produces just
such an illogical and improper result, contrary to this Court's
continuing insistence that statutory schemes of review should
not be read to foreclose judicial review of final agency action
absent “clear and convincing” evidence of Congress’ intent to
do so. Califano v. Sanders, — US. —, 51 L.Ed.2d 192
(1977); Mathews v. Eldridge, 424 U.S. 319. 47 L.Ed.2d 18
1976); Weinberger v. Salfi, 422 U.S. 749, 45 L.Ed.2d 522
(1975); Cf., Califano v. Goldfarb, — U.S. —, 51 L.Ed.2d
270 at 274, footnote 3 (1977).
To the extent existence of a congressional intent is made evi-
dent by the statutory scheme for review of the National Labor
_~_
Relations Act, that intent “clearly” and “convincingly” mani-
fests a purpose to assure judicial review to parties aggrieved by
final agency action. Where, as here, that intent and purpose
can be given effect consistent with avoidance of any “delay” to
Board certification proceedings, due process and constitutional
demands that review be available require that review be pro-
vided. Unlike the situation in Califano v. Sanders, supra where
the party seeking non-statutory review had available to it the
statutory scheme of review there dealt with and unlike the situa-
tion in Boire v. Greyhound Corporation, supra where the party
there involved sought a method of review departing from the
statutory scheme available to it, there is no question that the
only avenue of review available to the Stouffer Corporation—as
a party aggrieved by decisions of the Board in representation pro-
ceedings—is the avenue sought in the Court of Appeals and
erroneously denied to the Stouffer Corporation. Such denial,
premised solely upon an asserted “longstanding” rule of this
Court derived from the inapposite decision in American Federa-
tion of Labor v. National Labor Relations Board, supra, disre-
gards the decisions of this Court as well as the decisions of other
courts of appeal* emphasizing the constitutional requirement that
review not be foreclosed where not otherwise available under the
Statutory scheme.
Further, the denial of review by the Court of Appeals, in im-
properly extending the asserted “longstanding” rule of this
Court's decision thirty-seven years ago in American Federation
of Labor v. National Labor Relations Board, supra to a matter
involving a party to representation proceedings barred solely
as a result of the adverse decisions made from availing itself of
the statutory scheme designed to provide it with review rights,
attempts to determine statutory and constitutional issues of the
extent to which review should be made available under cir-
cumstances specifically left unanswered by this Court in Boire
‘ Squillacote v. Teamsters, Local 344, — F.2d —, 9 LRRM
2977 at 2982-2983.
—
v. Greyhound Corporation, supra and Califano v. Sanders,
supra. Boire v. Greyhound Corporation, supra and Califano vy.
Sanders, supra read in conjunction with one another and juxta-
posed against this Court's repeated insistence upon the provision
of judicial review consistent with the presumption that judicial
review must be available to challenge the actions of federal ad-
ministrative officials, demand the review that was sought by the
Stouffer Corporation in the Court of Appeals.
CONCLUSION
For the foregoing reasons, it is respectfully urged that this
petition for writ of certiorari should be granted.
Respectfully submitted,
GERALD TOCKMAN
706 Chestnut, Suite 1010
St. Louis, Missouri 63101
Attorney for Petitioner The Stouffer Corpo-
ration d/b/a Stouffer's Cincinnati Inn
APPENDIX
=
JPw
D—1593
Cincinnati, Ohio
225 NLRB No. 170
United States of America
Before the National Labor Relations Board
Cincinnati S.I. Company, a Limited )
Partnership d/b/a Stouffer’s Cincin-
nati Inn
Employer
and
> Case 9-RC-11305
Hotel, Motel, Restaurant Employees
and Bartenders’ Local 12 of the
Hotel and Restaurant Employees
and Bartenders’ International Un-
ion, AFL-CIO
Petitioner “
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before
Hearing Officer Felix C. Wade. Following the hearing and
pursuant to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of Procedure,
Series 8, as amended, this case was transferred to the National
Labor Relations Board for decision.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor Relations
Board has delegated its authority in this proceeding to a three-
member panel.
— A-2 —
The Board has reviewed the Hearing Officer's rulings made at
the hearing and finds that they are free from prejudicial error.
They are hereby affirmed.
Upon the entire record in this case, the National Labor Re-
lations Board finds:
1. The parties stipulated and we find that Cincinnati SI.
Company, a limited partnership d/b/a Stouffer's Cincinnati
Inn, hereafter CSI, is a limited partnership, existing under the
laws of the State of Ohio, engaged in the operations of a hotel
facility in Cincinnati, Ohio. During the past 12 months, a
representative period, the Employer had gross sales in excess of
$500,000, and purchased goods valued in excess of $50,000,
from firms located outside the State of Ohio and caused such
goods to be shipped directly from locations outside the State
of Ohio to its facilities in Cincinnati, Ohio. In view of the fore-
going, we find that the Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning certain
employees of the Employer.’
1 The Employer moved to dismiss the petition as untimely be-
cause of the allegedly expanding nature of the um. At the time the
hearing closed on March 25, 1976, there were 96 employees in
various classifications. The Employer is building a 33-story struc-
ture, attached to the present facilities, which will add 438 more
rooms, but no new job classifications. The anticipated date of com-
pletion is August 1, 1977. Those presently employed constitute 45
percent of the anticipated expanded 210 employee complement, and
they are performing in 100 percent of the projected job classifica-
tions. In these circumstances, we are satisfied that the present em-
ployee complement constitutes a substantial and representative
segment of the ultimate projected complement of employees. Ac-
cordingly, we conclude that the petition herein was not prematurely
filed, and the motion to dismiss the petition is hereby denied.
—_.
4. The Petitioner seeks to represent a unit including all setup
employees, doormen, bellmen, garage employees, parking
attendants maids, housemen, laundry employees, linen room
employees, elevator operators, seamstresses, maintenance emplc +
ees, and painters, but excluding office clerical employees, book-
keepers, desk clerks, PBX operator, reservationists, night audi-
tor, property auditor, accounts receivable clerks, health club
employees, lifeguards, confidential employees, sales employees,
security personnel, professional employees, and supervisors? as
defined in the Act. The Petitioner seeks a less than hotelwide
unit in that it would exclude the employees of Stouffer Corpora-
tion,*® hereafter called Stouffer, who work in the restaurant,
cocktail lounges, and banquet rooms.* The Employer con-
tends that CSI and Stouffer are joint employers, and that only an
overall unit including all these employees sought by Petitioner
plus the employees of Stouffer is appropriate.
There are two separate entities operating at Stouffer's Cincin-
nati Inn. One is CSI which operates the accommodations por-
tion of the motel, and the other is the Stouffer Corporation which
2 The parties stipulated, the record shows, and we find that the
teaten persons are supervisors: Barry Cholak, general manager:
Ed Nicholas, assistant manager; Earl Hatt, resident manager, Walter
Moore, garage manager; Herbert Brockschmidt, set-up manager;
Paul Craig, bell captain; Thelma Rupp, executive housekeeper;
James Smart, director of sales; George Nagengast, district mainte-
nance supervisor; and Ruben Grant, maintenance supervisor.
* The parties stipulated, the records shows, and we find that
Stouffer Corporation is an Ohio Corporation engaged in the hotel
and food business in several States. At its Cincinnati, Ohio, facility
during the past twelve months it had gross sales in excess of $500,000
and purchased goods valued in excess of $50,000 from firms located
outside the State of Ohio and caused them to be shipped directly to
its facility within the State of Ohio.
4 These empioyees are classified as: waiters’ waitresses, cooks and
pantry employees, bus help, food and beverage cashiers, hostesses,
bartenders, utility employees, receiving employees, and banquet
employees.
operates the restaurant, cocktail lounges, and banquet facilities.
CSI owns the building in which these functions are performed
and at which it operates a 462-room motel in Cincinnati, Ohio,
known as Stouffer’s Cincinnati Inn. CSI operates the motel
under a license agreement with Stouffer Foods Corporation of
Cleveland, Ohio, and the latter holds a lease agreement under
which it conducts the food and beverage operations of the
motel. Neither of these concerns has an interest in the other,
nor do persons in one hold an office in the other.> The license
agreement grants CSI the right to use the trade name “Stouffer’s”
for its motel. CSI in turn pays Stouffer a license fee equal to 5
percent of its gross room rental and agrees to adhere to “stand-
ards of quality for motel hotel operation” described in the li-
censes. The standards are predominantly physical standards
dealing primarily with the physical appearance of the property
and the manner in which it must be equipped and maintained.
The license contains a list of services which CSI must provide
for its guests. Insofar as is relevant herein, the license agreement
provides that CSI will not compete with Stouffer, will not ad-
vertise except in an acceptable manner, and will not sell or lease
the Stouffer name. The penalty for a breach of the license is
revocation. There is nothing in the license agreement which per-
tains to wages or fringe benefits for CSI’s employees. While
Stouffer provides CSI information on area wage rates, Stouffer
does not participate in the determination as to what the wage rate
shall be nor does it overrule CSI’s wage determinations. It is
significant that Stouffer’s quarterly inspection is aimed primarily
at the physical aspects of the facilities and is only incidentally
* AIRCOA, a management company, is retained by CSI to assist
it in m ing the accommodations portions of the motel for which
services CSI pays a fee. Stouffer does not retain AIRCOA in any
capacity, nor do any principals of either serve as officers of the other
and neither has an interest in the other. AIRCOA is owned by the
partners of CSI and performs management services for other motel/
hotel operations, located in various cities, which are owned by the
partners.
~~ wae
concerned with CSI’s employees. In fact, Cholak, CSI’s gen-
eral manager, testified this was “basically a physical inspection.
As you can see, there is very little in it that dealt with personnel.”
Cholak further commented on the items inspected saying: “the
inspector is more concerned about the physical compliance than
anything else, yes. He would not get into personnel training
or other items, you know, wage scales or anything else.”
Of ‘urther relevance herein are two aspects of the license
agreement, one of which provides that CSI “will not employ nor
seek to employ any person who is at the time employed by .. .
[Stouffer] and will not directly or indirectly induce any such
person to leave his or her employment.” This precludes transfer
or interchange of employees. Secondly, the agreement spe-
cifically negates any intention by the following language: “The
Company [Stouffer] and Licensee [CSI] are not and shall
not be considered as joint venturers, partners or agents of each
other, and neither shall have the power to bind or obligate the
other except as set forth in this agreement.” S
Stouffer leases from CSI certain areas of the motel for the sale
of food and beverages. Thus, on the first floor Stouffer has the
restaurant, cocktail lounge, kitchen storage, restaurant manager's
office, and three small offices for bookkeeping, personnel, and
assistant managers; in the basement near the elevator Stouffer
has a receiving area; and on the second floor, Stouffer has a
banquet kitchen, storage areas, and cocktail lounge. The rental
for these facilities is based on a percentage of the food and
beverage sales made by Stouffer. While Stouffer and CSI em-
ployees may, in isolated situations, be near one another, they do
not work with each other in the performance of their duties.
Stouffer maintains the restaurant and cocktail lounge at its own
expense. This includes plumbing, commercial refrigeration sys-
tems, kitchen exhaust systems, and other equipment situated in
the areas leased by Stouffer. Stouffer pays all expenses con-
nected with the conduct of its operations, such as taxes and in-
—_ =
surance. CSI agrees not to lease or use any other space in the
building for restaurant purposes and grants to Stouffer the sole
right to provide food and beverages in the building.
The record shows, and we find, that Cholak, CSI’s general
manager, is the overall supervisor of CSI’s employees and sets
the wage and fringe benefits of all CSI’s employees. He also
handles their grievances. He is responsible only to the partners
of CSI. Although as testified by Sparling, the labor relations
director for Stouffer, Stouffer makes a report to Cholak con-
cerning wages and fringe benefits, based on area surveys Stouf-
fer has conducted, Sparling further stated it is within Cholak’s
sole discretion to determine its applicability.
While the license provisions set forth standards dealing with
management and employee personnel, such standards are
couched in general language and are at best broad guidelines
which impose no significant personnel requirements on CSI.
Thus, the license significantly does not reserve in Stouffer the
right to determine wages, hours, or other conditions of employ-
ment, nor is there any evidence that Stouffer has the right to hire,
fire, or discipline CSI employees. Insofar as Stouffer employ-
ees are concerned, Sherwood, the restaurant manager, determines
their labor relations matters, including the setting of wages
and handling of grievances. Both CSI and Stouffer prepare
their own payroll, do their own bookkeeping, and have separate
immediate and overall supervision. Each firm also has sep-
arate wage scales, and health, hospitalization, and life insur-
ance. While Stouffer has a pension plan for its employees, CSI
has none. Moreover, contact between employees of CSI and
Stouffer is minimal. The greatest amount of contact are in-
stances where CSI banquet setup employees work in preparing
for Stouffer banquet functions. In this regard they set up tables,
chairs, and other necessary equipment for banquet functions and
remove them at the end of each function. However, these CSI
employees perform their function separately and do not work
—*
“with” Stouffer employees." For this service, CSI receives from
Stouffer 50 cents per meal for those dining in the banquet room.
There is also some contact between the maintenance employees
who are employed by CSI and the Stouffer employees inasmuch
as minor maintenance is performed in the food and beverage
areas by the maintenance staff. Similarly, the elevator operator
not only services the housekeeping department employees but
also provides elevator service for the room service waiters. The
Stouffer and CSI employees have separate lunchrooms, locker
rooms, and restrooms, and only CSI employees punch the time-
clock on the third floor. No Stouffer personnel attend CSI
department meetings. CSI and Stouffer both have their own
employee pamphlets setting forth benefits, general rules and
regulations, and location of services. In addition, the working
hours of CSI employees differ substantially from those of the
Stouffer employees.
Stouffer and CSI each pays one-half of the salaries of the em-
ployees in the sales and catering departments, and of the per-
sonnel coordinator.‘ The firms also share in the expense of
these operations. Stouffer carries a share of the salaries of
CSI’s district maintenance supervisor and of CSI’s service ele-
vator operator. CSI and Stouffer also have joint marketing
and advertising activities. They share in the use of such serv-
ices as window washing, pest control, and internal security, with
each paying its fair share of the cost.
6 The CSI banquet setup employees and bellman will also on
occasion work for Stouffer as waiters and in other capacities in the
banquet room and will be paid by Stouffer for such service. These
appear to be the only instances of interchange of employees.
* The sales department employees are concerned with attracting
business to the motel. The catering department is concerned with
coordinating room reservations and functions for groups once they
are booked into the motel. The personnel coordinater conducts the
initial employment interview with nonmanagement applicants for
both CSI and Stouffer and maintains certain employment records
for both. However, the final determination on hiring is done by Stouf-
fer or CSI personnel for their respective employees.
—
There is little contact between employees working in the food
and beverage operations and the remainder of the hotel em-
ployees, particularly those in the unit sought by Petitioner. It
is true that all employees involved herein are hourly paid and
have some of the same benefits, but it is also true that each of
these benefits is controlled by the respective Employers of the
employees.
The food-beverage and the motel operations are under sep-
arate management with, as stated before, separate immediate
and daily supervision. There is no evidence of interchange of
employees and no overlapping of duties beyond that mentioned
above. There have only been two transfers between CSI and
Stouffer employees. It is our opinion that the functions of the
hotel employees herein are definable and are clearly separate
from those of the food-beverage employees. The operations of
CSI and Stouffer are not such that either controls the labor re-
lations policy of the other.
We have long held that the critical factor in determining
whether a joint employer relationship exists is the control which
one party exercises over the labor relations policy of the other.
It is immaterial whether this control is actually exercised so long
as it may potentially be exercised by virtue of the agreement
under which the parties operate. Here Stouffer neither exercises
actual, not possesses potential, control over CSI’s labor relations
under the license agreement. It is undisputed that Cholak alone,
with his supervisors, hires, fires, and in every other respect sets
the terms and conditions of employment of the hotel’s employees.
The Employer in its brief advances the contention* that, be-
cause of the interrelations of Stouffer and CSI and their license
~ The joint employer issue was fully liti herein, whereas in
a prior proceeding, involving the same hotel, it was not raised. Ac-
cordingly, we base our finding herein on the evidence before us and
are not bound by the prior proceeding.
—_—
and lease provisions, there is control of labor relations. But,
as noted above, the agreements merely provide broad guidelines
and whatever relations Stouffer and CSI have with each other
they do not involve labor relations.
For the foregoing reasons, and on the record as a whole, we
find Stouffer and CSI are not joint employers of all the employ-
ees employed at Cincinnati S.1. Company, a limited partnership
d/b/a Stouffer’s Cincinnati Inn, within the meaning of the Act.
The unit Petitioner seeks is noted above. The parties disa-
greed as to the unit placement of certain individuals working for
CSI. Accordingly, we shall determine their status. Tom
Adamson is in training to become an assistant manager, but
does not possess the authority to hire or fire. His training was
to end 4 months from the end of January 1976, and Cholak testi-
fied that at that time, he would have acquired the authority to
hire and fire, and responsibly direct employees. As of the
hearing, he had only been employed about 22 weeks, but had
attended one department head meeting. In view of the fore-
going, we shall exclude Adamson, as a supervisor. As Rebecca
Niemann, the front office manager is salaried, possesses the au-
thority to hire and fire, and directs the work of about 20 per-
sons, we shall also exclude her as a supervisor. The following
individuals: Marge Nolting, sales manager; William Gryner,
sales director—state organizations; Lynette Kayden, corporate
sales manager; Peggy McAlpin, secretary to director of sales;
and Stephanie Graule, sales receptionist, are all employed in the
sales office, performing basically sales or clerical functions, work
in a different location than the employees requested, have
separate supervision, and do not interchange with or perform
any of the duties performed by the employees sought. Ac-
cordingly, we shall exclude them as office clerical employees
having no community of interest with the unit employees. Terry
Rehage, assistant director of catering, is salaried and has an
— A-10 —
office in the general office area. Her primary function is selling
group food and beverage business to convention and private
groups. As she does not interchange with or perform any
functions of employees of the unit, we find she has no community
of interest with the unit employees. The desk clerks, PBX
operators, reservationists, and night auditor are office clericals,
and, in conformity with Board policy to follow area practice
where clear, we shall exclude these classifications. As the
property auditor and accounts receivable clerk do not inter-
change with or perform any functions of unit employees, have
no contact with unit employees, are separately supervised, and
are in the general office area separated from unit employees, we
find they have a separate community of interest and shall also
exclude them as office clerical employees.
The parties agreed, and we find, that the executive house-
keeper, Rupp, is a supervisor and is thus excluded from the
unit. Under the executive housekeeper are two assistant house-
keepers and three employces classified as “supervisors” by the
Employer." The three “supervisors” are hourly paid, earning
30 cents more an hour than the maids; they are not paid over-
time; and they wear badges with their names and the word
“supervisor” and uniforms colored differently from those the
maids wear. Their responsibility is to see to it that the maids
do the work they are supposed to do. They inspect the rooms
to see that they are properly cleaned. They train new employ-
ees. When a new maid is hired, she is told she is under the
wing of a “supervisor.” If the maid wants to leave and has not
finished her work, the “supervisor” sends her to the executive
housekeeper; if the maid has finished her work, the “super-
visor” has authority to allow the maid to leave for legitimate
reasons. Each “supervisor” has from 11 to 14 maids working
for her and when there are 3 of them they each have 6 floors
* There are four employees with the title “supervisor.” However,
one is the linen room supervisor who, in fact, supervises no one.
— A-11 —
and 150 rooms to cover. If they are not satisfied with a maid's
work they direct the maid to redo any item. The night super-
visor has authority to allow maids to leave. early if the execu-
tive housekeeper is not in the house. “Supervisors” also report
rule infractions to the executive housekeeper. They do not
have. the power to hire or discharge maids. We are unable
on this record to determine whether the “supervisors” are su-
pervisors within the meaning of the Act, and, accordingly, we
shall have them vote subject to challenge.
The two assistant housekeepers are in charge of the house-
keeping department when the executive housekeeper is on va-
cation or has a day off. Rupp takes a 3-week vacation or has
at least 1 day off per week. These assistants are salaried. They
are not paid for overtime. They report to the executive house-
keeper what the maids are doing, the nature of their work,
and their attitude. They directly supervise those not “super-
vised” by one of the three “supervisors” discussed above. They
also have the authority to call to a “supervisor’s” attention
anything wrong that they observe on the “supervisor's” floor.
New employees are told the assistants are supervisors. When
Rupp is off, the assistants can bring in maids for overtime if
needed. The assistants make recommendations or evaluations
as to the maids’ job performance every 6 months. The assist-
ants only make formal reports on the job performance of house-
keeping employees. They do not perform any maid services.
On Rupp’s day off, the assistants have authority to order
laundry supplies and to permit maids to go home early on
personal business or for illness. They also have authority to
redistribute the rooms among the maids. Cholak testified that
the two assistant housekeepers were informed by Rupp that
they have authority to hire and fire, and that, at the time the
job was created, he and Rupp determined that the assistants
would have authority to hire and fire. The two assistant house-
keepers attend meetings of department heads when Rupp is
absent. They have badges on their uniforms with the title
— A-12 —
“Assistant Housekeeper.” In view of the foregoing, we shall
exclude the assistant housekeepers from the unit on the ground
that they are supervisors.
The Employer now, in agreement with the Petitioner, would
exclude the health club employees, who are separately located;
have different duties, hours, and conditions of employment;
are salaried and paid commissions on massages given, which
represent one-third of their income; and are licensed. They
have separate locker facilities in the health club and there is
no interchange between health club employees and other unit
employees. We find they have no community of interest with
the unit employees and shall exclude them.
The three lifeguards are students who are employed from
May | to October 1. They are contacted by the resident man-
ager during their spring break and given an opportunity to
return, but there is no certainty that they will return. The
three schedule their own hours. They are hourly paid, receive
a student minimum wage rate, and do not receive any fringe
benefits. They do not interchange or have contact with em-
ployees in the unit found appropriate herein. As they are stu-
dents hired only for the summer months, whose employment
terminates with the beginning of the school year, there is no
evidence these individuals have recurring jobs or are hired
each season; and they have no community of interest with the
unit employees. We shall exclude them from the unit found
appropriate herein.
General Manager Cholak’s secretary, Patricia Heidmann, is
salaried, makes out the payroll from the time cards, handles
Cholak’s correspondence and telephone calls, assists the prop-
erty bookkeeper and accounts receivable clerk, has access to
personnel files, and sits in staff meetings. Accordingly, we
find that she is a confidential employee and shall exclude her
from the unit.
— A-13 —
The setup men are engaged in setting up for meetings, both
food and nonfood functions. They provide tables, tablecloths,
ashtrays, and glasses for meetings. They subsequently break-
down the set-up, and clean the room. For a meal function,
they set up all tables and chairs in a prearranged table setting
arrangement. After the meal is finished, they break the tables
and chairs down, remove them, and clean the room. It is their
responsibility to clean and maintain the room itself as well as
provide the audiovisual equipment, public address system, lec-
tern, and easel, all of which belong to CSI. Setup men are
under the supervision of CSI personnel who direct their work
and supervise them in every detail. However, in certain re-
spects they are directed by Stouffer employees. This direction
is limited to setup employees following the prearranged table
setting arrangement that the Stouffer personnel has communi-
cated to the supervisor of the CSI employees. They work in
the same area as Stouffer employees when the latter are par-
ticipating in serving the banquet, and later when Stouffer em-
ployees remove food, china, crystal, glass, and silver. Setup
employees, however, have completed their work and departed
the area when Stouffer employees begin their tasks, and do
not reappear until the Stouffer employees have completed their
assignments and have left the area. Although they are in an
area where Stouffer employees work and are engaged in cer-
tain activities where they have certain related responsibilities
with Stouffer employees, as they are employees of CSI, share
CSI employee benefits and conditions of employment, and are
the only nonoffice clericals who would be unrepresented, we
shall include them in the unit.
The bellmen and doormen have the same immediate super-
vision and interchange their duties. Bellmen and doormen are
hourly paid, come in daily contact with unit employees, punch
the same tire clock, place their cards in the same rack, and
perform service functions for guests, not clerical in nature, as
do other unit employees. The garage employees and parking
— A-14—
attendants are under one supervisor. They receive free park-
ing in the garage, punch the same time clock as unit employees,
use the same rack for their time cards, and, like bellmen, per-
form a service function for guests and come in immediate con-
tact with guests. The one elevator operator’s hours coincide
with those of other housekeeping employees. Her main func-
tion is to facilitate delivery by housekeeping of fresh linens
and supplies to the guest floors. Her subordinate purpose is
to aid the food and beverage delivery for room service and
to bring restaurant supplies to the banquet level on occasion.
Her primary purpose is to keep the elevator in service and thus
prevent the food-beverage service employees from parking the
elevator on the floor where they are providing room service.
When she is not on duty, the elevator operates itself. She, like
others in the housekeeping department. with whom she is
grouped in CSI’s organizational chart, is under the executive
housekeeper, has the same hours as other housekeeping em-
ployees, punches the same timeclock, puts her timecard in the
same rack, and is used to insure housekeeping employees easy
and ready access to the elevator.
Under Executive Housekeeper Rupp are 10 laundry workers,
4 housemen, 37 maids, a seamstress, a linen room “super-
visor”, and the above service elevator operator. The laundry
employees launder all the motel’s linen on the premises. The
housemen clean the public areas of the Inn; substitute to op-
erate the washer in the laundry room; maintain the public
restrooms during the day; clean the stairways, various floors,
elevators, stairways, and lobby floors; move furniture; and take
new linens coming in from the street and take them to the
linen room. Their responsibility is largely janitorial. There are
37 maids, of whom 36 are referred to as production maids
and the other as a parlor maid. The production maids perform
the functions of changing the linen in the rooms, cleaning the
rooms, and supplying them with necessary items for guest use.
In so doing, they pick up linen and supplies, take them to the
— A-15 —
rooms, place them in the appropriate places, and clean the
rooms. The parlor maid cleans the offices of the general man-
ager, bookkeepers, reservation and front desk clerks, and the
health club. The seamstress works in the linen room on the
third floor. She works the same hours as unit employees. She
substitutes for maids when needed. There is no evidence that
the linen room “supervisor” possesses any supervisory author-
ity and we so find. She oversees the linen room, keeps supplies
moving, and takes care of glasses for guests. She gives out
linen and supplies to the maids, keeps the room tidy, takes
care of lost and found items, and answers the phone. All em-
ployees under the housekeeper wear uniforms of different types
for each of the separate job classifications.
The maintenance department is on the third floor next to
the housekeeper’s office. There are three maintenance employ-
ees and one painter. They are under the immediate supervision
of Grant, the maintenance supervisor. The maintenance em-
ployees are engaged primarily in painting, refurbishing, and
minor maintenance and mechanical duties in connection with
the entire building. They do not work in the area where Stouf-
fer has its facilities except to perform emergency work of a
minor nature, as all Stouffer fixtures and kitchen equipment is
maintained by an outside contractor. CSI’s major maintenance
is also contracted out.
The housekeeping, laundry, engineering, and maintenance
departments are on the third floor, as are the locker rooms of
the employees working in these jobs. They eat on the third
floor and punch the same timeclock, and put their timecards in
the same rack. They are all hourly paid and receive the same
fringe benefits. We shall include these employees in the unit.
Finally, the Employer contends that the unit sought by the
Petitioner is inappropriate on the ground that it is contrary
to area practice, which, it asserts, supports a unit hotelwide
— A-16 —
in scope. However, the record shows that the area practice is
not clearly defined and that there are a variety of arrange-
ments in the area. Accordingly, in view of our finding that
CSI and Stouffer are not joint employers, that the employees
sought by Petitioner share a community of interest, and that
there is no existing and well-defined area practice to the con-
trary, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All setup employees, bellmen, doormen, garage employ-
ees, parking attendants, maids, housemen, laundry em-
ployees, linen room employees, elevator operators, painter,
and maintenance employees at Employer's Stouffer's Cin-
cinnati Inn, 150 West Fifth Street, Cincinnati, Ohio, but
excluding office clerical employees, bookkeepers, desk
clerks, PBX operator, reservationists, night auditor, prop-
erty auditor, accounts receivable clerks, health club em-
ployees, safeguards, confidential employees, sales employ-
ees, security personnel, professional employees, and
supervisors as defined in the Act.
Direction of Election
An election by secret ballot shall be conducted among the
employees in the unit found appropriate, as early as possible,
but not later than 30 days from the date below. The Regional
Director for Region 9 shall direct and supervise the election,
subject to the National Labor Relations Board Rules, Series 8,
as amended. Eligibe to vote are those in the unit who were
employed during the payroll period ending immediately be-
fore the date below, including employees who did not work
during that period because they were ill, on vacation, or tem-
porarily laid off. Also eligible are employees engaged in an
economic strike which commenced less than 12 months before
—
the election date and who retained their status as such during
the eligibility period and their replacements. Those in the
military services of the United States may vote if they appear
in person at the polls. Ineligible to vote are employees who
have quit or been discharged for cause since the designated
payroll period; employees engaged in a strike who have been
discharged for cause since the commencement thereof and who
have not been rehired or reinstated before the election date;
and employees engaged in an economic strike which com-
menced more than 12 months before the election date and
who have been permanently replaced.'® Those eligible shall
vote whether or not they desire to be represented for collec-
tive-bargaining purposes by Hotel, Motel, and Restaurant Em-
ployees and Bartenders Local 12 of the Hotel and Restaurant
Employees and Bartenders’ International Union, AFL-CIO.
Dated, Washington, D.C. September 8, 1976.
10 In order to assure that all eligible voters may have the oppor-
tunity to be informed of the issues in the exercise of their statutory
right to vote, all parties to the election should have access to a list
tend and their addresses which may be used to communicate with
them. Excelsior Underwear Inc., 156 NLRB 1236 (1966); N.L.R.B.
v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is
hereby directed that an election eligibility list, containing the names
and addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 9 within 7 days of the date
of this Decision and Direction of Election. The Regional Director
shall make this list available to all parties to the election. No ex-
tension of time to file this list shall be granted by the Regional Direc-
tor except in extraordinary circumstances. Failure to comply with
this requirement shall be grounds for setting aside the election when-
ever proper objections are filed.
— A-18 —
STOUFFER'S
The Stouffer Corporation
1375 Euclid Avenue Cleveland, Ohio 44115
(216) 861-3450
November 22, 1976
Cincinnati S. I. Company
Cincinnati Towers
Attn: Mr. Barry Cholak
150 West Sth Street
Cincinnati, Ohio
Re: Cincinnati S. I. Company, a limited partnership,
d/b/a Stouffer’s Cincinnati Inn
225 NLRB No. 170
Gentlemen:
It is our understanding that you intend to proceed to bargain
with respect to the fragmented employee unit found appropriate
by the Board in the above-numbered case on September 8, 1976.
As the joint employer of the employees in the unit improperly
found appropriate by the Board, and as such employer of all
other employees working at Stouffer’s Cincinnati Inn, we are in
disagreement with the above-referenced unit determination, are
directly affected by that determination and constitute a “person
aggrieved” within the meaning and for the purposes of Section
10(f) of the National Labor Relations Act, as amended with
respect to the Board’s Order in this case.
It is our intention to take all appropriate steps to obtain ju-
dicial review of the above-mentioned Board Decision and, in
that connection, to secure the invalidation of the Board’s unit
— A-19 —
decision. In that connection, we wish to put both of you on
notice that should recognition be extended and bargaining con-
ducted in reliance upon the Board’s irregular unit determination
here, such recognition and bargaining will be at the peril and
jeopardy of both of you. Among other things, once it is ju-
dicially determined that the unit in question is not proper, each
of you will bear joint responsibility for repayment to any em-
ployees of all initiation fees, dues and assessments which may
be obtained through union security and check-off contract pro-
visions over the several years that it will require to obtain a
judicial reversal of this highly improper decision. In view of our
intended course of action, and particularly the fact that both
the Decision and your conduct in reliance upon it will preju-
dicially affect the rights and interests of this Company, we sin-
cerely suggest and demand that no conduct be taken by either
of you in reliance on this Board Decision until the matter is
finally determined in a judicial forum.
Sincerely,
STEVE SPARLING
Director
Labor and Employee Relations
SS:ep
— A-20 —
STOUFFER’S
The Stouffer Corporation
1375 Euclid Avenue Cleveland, Ohio 44115
(216) 861-3450
November 22, 1976
Hotel, Motel, Restaurant Employees and Bartenders
Local 12 of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO
Attn: Oscar G. Lee, President-Business Manager
1015 Vine Street, Room 710
Cincinnati, Ohio 45202
Re: Cincinnati S. I. Company, a limited partnership,
d/b/a Stouffer’s Cincinnati Inn
225 NLRB No. 170
Gentlemen:
It is our understanding that you intend to proceed to bargain
with respect to the fragmented employee unit found appropriate
by the Board in the above-numbered case on September 8, 1976.
As the joint employer of the employees in the unit improperly
found appropriate by the Board, and as such employer of all
other employees working at Stouffer's Cincinnati Inn, we are
in disagreement with the above-referenced unit determination,
are directly affected by that determination and constitute a “per-
son aggrieved” within the meaning and for the purposes of
Section 10(f) of the National Labor Relations Act, as amended
with respect to the Board’s Order in this case.
— A-21 —
It is our intention to take all appropriate steps to obtain
judicial review of the above-mentioned Board Decision and, in
that connection, to secure the invalidation of the Board’s unit
decision. In that connection, we wish to put both of you on
notice that should recognition be extended and bargaining con-
ducted in reliance upon the Board’s irregular unit determination
here, such recognition and bargaining will be at the peril and
jeopardy of both of you. Among other things, once it is ju-
dicially determined that the unit in question is not proper, each
of you will bear joint responsibility for repayment to any em-
ployees of all initiation fees, dues and assessments which may
be obtained through union security and check-off contract pro-
visions over the several years that it will require to obtain a
judicial reversal of this highly improper decision. In view of
our intended course of action, and particularly the fact that both
the Decision and your conduct in reliance upon it will preju-
dicially affect the rights and interests of this Company, we sin-
cerely suggest and demand that no conduct be taken by either
of you in reliance on this Board Decision until the matter is
finally determined in a judicial forum.
Sincerely,
STEVE SPARLING
Director
Labor and Employee Relations
SS:ep
— A-22 —
Arthur H. Friedman
Attorney-at-Law
816 Dixie Terminal Building
Cincinnati, Ohio 45202
Phone: 721-0712
November 29, 1976
Mr. Steve Sparling, Director
Labor and Employee Relations
The Stouffer Corporation
1375 Euclid Avenue
Cleveland, Ohio 44115
Dear Mr. Sparling:
The Cincinnati S. I. Co. acknowledges receipt of your letter of
November 22nd.
As you know, following a number of Labor Board hearings,
culminating in an election, the National Labor Relations Board
recognized the Hotel, Motel, Restaurant Employees and Bar-
tender’s Union, Local No. 12 as the duly authorized bargaining
agent for certain employees employed by the Cincinnati S. I.
Co. and ordered the Cincinnati S. I. Co. to enter into collective
bargaining with the said Local No. 12.
As a result of that order, the Cincinnati S. I. Co. and Local No.
12 have been engaged in collective bargaining over the past
two weeks. It is the feeling of the Cincinnati S. I. Co. that it
has no alternative but to continue this bargaining in good faith
to ultimately arrive at a labor contract as per the order of the
National Labor Relations Board. To do otherwise, unless sub-
sequent orders superseded this order, could result in the Cin-
cinnati S. I. Co. both being guilty of an unfair labor practice
and being held in contempt of the Board’s order.
— A-23 —
It is our position that we have no alternative but to continue
these negotiations unless ordered by a proper tribunal to cease
bargaining.
Very truly yours,
ARTHUR H. FRIEDMAN
AHF /kw
— A-24—
In the United States Court of Appeals
For the Sixth Circuit
The Stouffer Corporation d/b/a
Stouffer’s Cincinnati Inn,
Petitioner,
v. No. 77-1094
National Labor Relations Board,
Respondent.
PETITION FOR REVIEW
1. The Stouffer Corporation d/b/a Stouffer's Cincinnati Inn
(herein “Petitioner”), petitions the Court to set aside, suspend,
medify and otherwise review the Order of the National Labor
Relations Board entered on September 8, 1976 in the matter
known as “Cincinnati $.1. Company, A Limited Partnership
d/b/a Stouffer's Cincinnati Inn”, 225 NLRB No. 170 (Case
No. 9-RC-11305) before such agency. The National Labor Re-
lations Board erroneously determined that Petitioner and Cin-
cinnati S. I. Company, a limited partnership (herein “CSI”),
were not joint employers of the employees of Stouffer's Cincin-
nati Inn, arbitrarily and improperly held that a grouping of em-
ployees at Stouffer's Cincinnati Inn were employed by CSI only
and constituted a unit appropriate for collective bargaining un-
der Section 9(b) of the Labor Management Relations Act (29
USC § 159(b)) in compliance with the unit sought in the peti-
tion of Hotel, Motel, Restaurant Employees and Bartenders’
Locai 12 of the Hotel and Restaurant Employees and Bar-
tenders’ International Union, AFL-CIO (herein “the Union”)
and improperly ordered and conducted an election within such
an arbitrary and improper unit to the prejudice of this Petitioner
and the employees of Petitioner and CSI employed at Stouffer's
Cincinnati Inn.
— A-25 —
2. This Petition is filed and Petitioner is entitled to the relief
requested herein pursuant to 29 USC § 160(f) and 5 USC
§$ 704.
a. Petitioner is a party aggrieved and has suffered legal wrong
within the meaning of 5 USC § 702 because of the aforesaid
determinations of the National Labor Relations Board in 225
NLRB No. 170 (Case No. 9-RC-11305).
b. The Order of the National Labor Relations Board in 225
NLRB No. 170 (Case No. 9-RC-11305 is a final Order for
which judicial review is available since CSI, erroneously deter-
mined by the National Labor Relations Board to be an em-
ployer-entity separate and apart from Petitioner with respect to
some of the employees employed at Stouffer's Cincinnati Inn,
has negated the only other method through which review of a
National Labor Relations Board unit determination is afforded
(to-wit, refusal to bargain and subsequent review of the unit
determination under the provisions of 29 USC §§ 159(d),
160(e) and (f); see, Boire v. Greyhound, 376 U.S. 473 (1964) )
by bargaining with the Union for an arbitrary and improper
grouping of some of the employees employed at Stouffer's Cin-
cinnati Inn to the prejudice of this Petitioner and all employees
of Petitioner and CSI.
c. As a result of denial of the only other avenue of judicial
review available as described above, the issues presented and
resolved to Petitioner's detriment in 225 NLRB No. 170 (Case
No. 9-RC-11305) are not otherwise reviewable, and unless re-
view is afforded as sought here, Petitioner and the employees
of Petitioner and CSI employed at Stouffer’s Cincinnati Inn will
suffer and continue to suffer irreparable harm and injury both
in the present matter as well as in any other representation mat-
ter which may occur in the future involving the determination of
appropriate unit issues at other Inns in and around the United
States owned and operated by The Stouffer Corporation with
other entities similar in nature and scope to CSI.
—_e
3. Contrary to the determinations of the National Labor Re-
lations Board in 225 NLRB No. 170 (Case No. 9-RC-11305),
Petitioner operates Stouffer’s Cincinnati Inn as a joint employer
with CSI and the National Labor Relations Board’s contrary
determination and consequent limitation of a unit to those em-
ployees held to be employees of CSI only to the exclusion of all
other employees employed by Petitioner and CSI at Stouffer's
Cincinnati Inn are improper, arbitrary and capricious and not
supported by substantial evidence on the record as a whole.
Wherefore, Petitioner prays the Order of the National Labor
Relations Board in 225 NLRB No. 170 (Case No. 9-RC-11305)
be set aside, suspended, modified and otherwise reviewed.
Dated this 11th day of February, 1977.
—_Y
In the United States Court of Appeals
for the Sixth Circuit
The Stouffer Corporation d/b/a )
Stouffer's Cincinnati Inn,
Petiti >ner,
v. . No. 77-1094
The National Labor Relations Board,
Respondent.
MOTION FOR LEAVE TO
INTERVENE
Comes now Hotel, Motel, Restaurant Employees and Bartend-
ers Union Local No. 12 of the Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO (herein “Inter-
venor”), pursuant to Rule 15(d) of the Federal Rules of Appel-
late Procedure and moves this Honorable court for leave to
intervene in this proceeding for the review of the decision and
order of the National Labor Relations Board, entered at Wash-
ington, D.C. on September 8, 1976, and in support of this mo-
tion respectfully represents:
1. Intervenor is the labor union which initiated the represeata-
tion proceeding before the National Labor Relations Board
(herein “Board”) which resulted in the Order entered on Septem-
ber 8, 1976, which is the subject of this Petition for Review.
2. Pursuant to that Order an election by secret ballot was
conducted among the employees of Cincinnati S.1. Company, a
Limited Partnership, d/b/a Stouffer's Cincinnati Inn (herein
“CSI") in accordance with the Rules and Regulations of the
Board on October 8, 1976. Thereafter, on October 18, 1976,
as a result of that election, Intervenor was certified pursuant
to Sec. 9(a) of the National Labor Relations Act, as amended,
a
— A-28 —
as the exclusive bargaining representative of all employees of
CSI in the unit found appropriate by the Board.
Motion granted, noting that any time for oral argument is
subject to agreement of the parties as to sharing allocated time.
s J. P. Hehman
Clerk
On December 28, 1976, Intervenor and CSI entered into a
collective bargaining agreement effective December 5, 1976
through December 4, 1979, covering the wages, hours of em-
ployment and other conditions of employment of said employees.
3. Intei1venor, if permitted to appear before this court as
herein requested, desires to present a brief and submit oral argu-
ment in support of said Order of the Board entered as aforesaid.
Intervenor respectfully submits that it has an important and
considerable interest in the outcome of this proceeding in that
any order of this court setting aside, suspending or otherwise
modifying the Order of the Board sought to be reviewed would
necessarily result in great harm and damage to Intervenor and
the employees of CSI whom it represents and who are covered
by the collective bargaining agreement between Intervenor and
CSI referred to above. Specifically, the setting aside. suspension
or modification of said Order may invalidate the Certification of
Representative issued by the Board, may invalidate the said
collective bargaining agreement, would deprive said employees
represented by Intervenor of their rights under and pursuant to
said agreement, may require repayment of the membership dues
paid to Intervenor by said employees pursuant to the union
security and check-off provisions of said agreement, and would
otherwise hinder and disrupt the bargaining relationship now
existing between Intervenor and CSI.
— A-29 —
Wherefore, Intervenor respectfully moves this honorable
court: (1) that it be permitted to intervene as a party in this
review of the decision and order of the National Labor Rela-
tions Board dated September 8, 1976, and that it further be
allowed the privilege of filing briefs and arguing orally before
this court; and (2) for such other and further relief as to the
court may seem just and proper and as the exigencies of the case
may appear.
Dated this 2nd day of March, 1977.
— A-30 —
In the United States Court of Appeals
For the Sixth Circuit
The Stouffer Corporation d/b/a .
Stouffer’s Cincinnati Inn,
Petitioner,
v. ‘ No. 77-1094
National Labor Relations Board,
Respondent. |
MOTION OF PETITIONER FOR ENTRY
OF DEFAULT JUDGMENT
Comes now Petitioner, the Stouffer Corporation d/b/a Stouf-
fer’s Cincinnati Inn, by and through its attorney, and respect-
fully moves the Court to enter a Judgment of Default against
Respondent National Labor Relations Board for the relief re-
quested in said Petitioner's Petition for Review, setting aside,
suspending or modifying the Order of the National Labor Re-
lations Board in 225 NLRB No. 170 (Case No. 9-RC-11305).
As grounds for this Motion, Petitioner states:
1. That the instant Petition for Review was docketed in this
Court and a certified copy thereof was served on Respondent
National Labor Relations Board by letter of the Clerk on Feb-
ruary 14, 1977.
2. Hotel, Motel, Restaurant Employees and Bartenders’
Union Local No. 12 of the Hotel and Restaurant Employees
and Bartenders’ International Union, AFL-CIO, filed a Motion
for Leave to Intervene on March 2, 1977 which Motion was
subsequently granted by this Court.
— A-31 —
3. Pursuant to the provisions of Rules 17 and 26(c) of the
Federal Rules of Appellate Procedure, Respondent National
Labor Relations Board was to have transmitted the record of
the proceeding before it, 225 NLRB No. 17 (Case No. 9-RC-
11305), to the Clerk within 40 days after service of the in-
stant Petition for Review upon it, or before March 30, 1977.
4. No extension of time has been granted Respondent Na-
tional Labor Relations Board by this Court within which to file
the record as required by Rule 17 of the Federal Rules of
Appellate Procedure.
5. Respondent National Labor Relations Board has not, as
of the date of the filing of this Motion, complied with the pro-
visions of Rule 17 of the Federal Rules of Appellate Proce-
dure or the dictates of this Court regarding strict compliance
with the time schedules specified in the Federal Rules of Ap-
pellate Procedure, and has failed to transmit said record to the
Clerk.
6. Respondent Nationa! Labor Relations Board is disrupt-
ing and impeding the orderly process of the instant Petition
for Review and this Court's docket by its failure to transmit
the record to the Clerk within the time required by Rule 17
of the Federal Rules of Appellate Procedure.
Wherefore, for the foregoing reasons, Petitioner The Stouf-
fer Corporation d/b/a Stouffer's Cincinnati Inn prays that the
Court enter a Judgment of Default against Respondent Na-
tional Labor Relations Board as hereinabove requested.
Dated this 9th day of April, 1977.
— A-32 —
No. 77-1094
United States Court of Appeals
For the Sixth Circuit
The Stouffer Corporation d/b/a Stouffer’s >
Cincinnati Inn,
Petitioner,
National Labor Relations Board,
Respondent, +
Hotel, Motel, Restaurant Employees and
Bartenders Union Local No. 12 of the
Hotel and Restaurant Employees and
Bartenders International Union, AFL-
CIO,
Intervenor. |
ORDER
Upon consideration of the petitioner’s motion for entry of
default judgment, the intervenor’s memorandum in opposition
thereto and the respondent’s motion in opposition thereto,
It is ORDERED that the motion for default judgment be
and it hereby is denied.
Upon further consideration of the respondent’s motion for
leave to file instanter a motion for extension of time for filing
the certified list, it is ORDERED that the motion be and it
hereby is granted.
Upon further consideration of the respondent’s motion for
extension of time to file the certified list, it is ORDERED that
— A-33 —
the motion be and it hereby is denied. Respondent is granted
leave to file the certified list not later than fourteen (14) cal-
endar days from the file date of this order.
Entered by Order of the Court
JOHN P. HEHMAN, Clerk
—_~
In the United States Court of Appeals
For the Sixth Circuit
The Stouffer Corporation d/b/a ,
Stouffer's Cincinnati Inn, )
Petitioner,
v. No. 77-1094.
National Labor Relations Board,
Respondent. J
MOTION TO DISMISS PETITION
FOR REVIEW
To the Honorable, the Judges of the United States Court of
Appeals for the Sixth Circuit:
The National Labor Relations Board, Respondent herein,
hereby- maves the Court to dismiss the petition for review
herein on the grounds that_the Board's Decision and Direction
of Election is not a final order subject to judicial review under
Section 10(f) of the National Labor Relations Act. (61 Stat.
136, 73 Stat. 519, 88 Stat. 395, 29 U.S.C. 151, et seg.) In
support of its Motion, the Board submits herewith its Memo-
randum of Points and Authorities.
WHEREFORE, the Board respectfully prays that its mo-
tion to dismiss be granted.
Respectfully submitted,
ELLIOTT MOORE
Deputy Associate General Counsel
National Labor Relations Board
By WILLIAM WACHTER
Assistant General Counsel for
Special Litigation
1717 Pennsylvania Ave., N.W.
Washington, D.C. 20570
Dated: Washington, D.C. April 29, 1977.
— A-35 —
Memorandum of Points and Authorities in
Support of Motion to Dismiss
Petition for Review
The petitioner, Stouffer Food Corp., (herein “Stouffer”) has
a license agreement with the Cincinnati S.I. Company (herein
“CSI”), a limited partnership, which grants to CSI the rights to
use the trade name “Stouffer's” for its motel located in Cincin-
nati, Ohio. Pursuant to this license agreement, CSI operates a
motel known as Stouffeur’s Cincinnati Inn (herein “the Inn”).
Stouffer holds a lease agreement with CSI under which Stouffer
conducts the food and beverage operations at the Inn. These
operations include a restaurant, cocktail lounges and banquet
rooms.
The Hotel, Motel Restaurant Employees and Bartenders’
Local 12 of the Hotel and Restaurant Employees and Bartenders’
International Union, AFL-CIO (herein “the Union”) filed a
_ petition for an election among employees of CSI who work at
the Inn. The unit sought by the Union was a less than “hotel-
wide” unit in that it did not include the employees of Stouffer
who work in the Inn’s restaurant, cocktail lounges and banquet
rooms. CS/ contested the unit sought by the Union contending
inter alia that CSI and Stouffer are joint employers of all em-
ployees working at the Inn, and that only an overall unit in-
cluding the employees sought by the Union plus the employees
of Stouffer is appropriate.
On September 8, 1976, following a hearing, the Board issued
its Decision and Direction of Election, 225 NLRB No. 170
(Attachment “A”) in which it found, contrary to CSIs con-
tention, that CSI and Stouffer do not constitute a joint employer.
The Board also found that the unit sought by the Union was an
appropriate one and accordingly, directed that an election be
conducted among the employees therein. Thereafter, Stouffer,
claiming to be a party aggrieved by a final Board order, filed a
petition with this Court to review the Board’s ruling.
— A-36 —
Argument
Courts of Appeals, unlike district courts, are “without the
jurisdiction over original suits conferred on district courts by
§$ 24 of the Judicial Code, as amended 28 U.S.C. § 41. Such
jurisdiction as [they do have], to review directly the action of
administrative agencies, is specially conferred by legislation
relating specifically to the determinations of such agencies made
subject to review, and prescribing the manner and extent of the
review.” A.F.L. v. N.L.R.B., 308 U.S. 401, 403 (1940). Here,
the provision of the National Labor Relations Act which gives
a right to review is Section 10(f) (29 U.S.C. § 160(f)). The
language and legislative history of this Section make clear that,
in the instant case, the Court does not have jurisdiction to enter-
tain Stouffer's petition for review.
Section 10(f) provides that “any person aggrieved by a final
order of the Board” may petition for review in an appropriate
Court of Appeals. “[I]t has long been established that the phrase
‘a final order of the Board,’ as used in this Section (10(f)),
refers to an order of the Board either dismissing a complaint in
whole or in part or directing a remedy for unfair labor practices
found—in either case an order entered at the culmination of
the procedure described in Section 10(b) amd (c) of the Act.”!
Laundry Workers Union v. N.L.R.B., 197 F. 2d 701, 703 (C.A.
5, 1952). See A.F.L. v. N.L.R.B., 308 U.S. 401 (1940); Boire
v. Greyhound Corp., 376 U.S. 423, 476-477 (1964); Eastern
Greyhound Lines v. Fusco, 323 F. 2d 477, 479 (C.A. 6, 1963);
Local 542 Operating Engineers v. N.L.R.B., 328 F. 2d 850,
853-854 (C.A. 3, 1964), cert. denied, 379 U.S. 826.
Similarly, it has long been settled that Board rulings in repre-
sentation proceedings under Section 9 of the Act—e.g., setting
' Section 10(b) and (c) authorizes the Board, after the filing of
a charge oe Section 8 unfair labor practices, to issue complaints,
hold hearings, find facts, determine issues, and enter orders dismiss-
ing complaints or directing remedies for unfair labor practices found.
—<
aside, directing, or refusing to direct an election, designating a
proper unit, or certifying a union as bargaining representative—
are non-adversary in nature and do not result in judicially re-
viewable final orders. Boire v. Greyhound Corp., supra; A.F.L.
v. N.L.R.B., supra; Modern Plastics v. McCulloch, 400 F. 2d
14, 19 (C.A. 6, 1968); Cameron v. N.L.R.B., 33 LRRM 2133
(C.A. 6, 1953); Timken Detroit Axle Co. v. N.L.R.B., 197 F.
2d 512, 513 (C.A. 6, 1952); Eastern Greyhound Lines v. Fusco,
supra, 323 F. 2d at 479. This is so because, as the Supreme
Court early recognized, the former order “authorized by § 10
may be reviewed by the court on petition of the Board for en-
forcement of the order, or of a person aggrieved, in conformity
to the procedure laid down in § 10, which says nothing of certi-
fications. On the other hand, the latter determination “author-
ized by § 9, is nowhere spoken of as an order, and no procedure
is prescribed for its review apart from an order prohibiting an
unfair labor practice,” A.F.L. v. N.L.R.B., supra, 308 U.S. at
404. See Section 9(d)? and cases cited supra, p. 3.
That Congress, by structuring the Act in this manner, in-
tended to preclude direct review of representation determinations
is clear. At the time Congress enacted the Wagner Act it con-
sidered and rejected the suggestion that all orders of the Board
should be reviewable in the Courts of Appeals. Instead, Con-
gress chose to exclude representation certifications of the Board
from federal appellate review, except in the circumstances speci-
fied in Section 9(d). See, discussion in A.F.L. v. N.L.R.B.,
supra, 308 U.S. at 409-410.
Moreover, legislative history of 1947 Amnedments to the Act
clearly reveals that Congress was aware that under this statutory
2 Section 9(d) of the Act provides for the certification by the
Board of the record of a representation proceeding in the case where
there is a petition for review of an order of the Board made pursuant
to Section 10(c) and based in whole or in part upon the facts certi-
fied in the representation proceeding. In that event, the record in the
certification proceeding becomes part of the record upon which the
decree of the Court reviewing the unfair labor practice order is based.
— A-38 —
scheme certain instances might arise, such as the instant case,
where Board representation decisions might not be subject to
Court review. See A.F.L. v. N.L.R.B., supra, 308 U.S. at 411;
Boire v. Greyhound, supra; Leedom v. Kyne, supra. Neverthe-
less, Congress determined that continued restricted judicial re-
view was necessary in view of the overriding need to expedi-
tiously resolve issues in countless representation cases. Thus,
the House Bill, H.R. 3020, contained provi sons permitting any
interested person to obtain court review of a Board certification
in the same manner as a final Board order. The House Report
accompanying the bill (H.R. Rep. No. 245, 80th Cong., Ist
Sess. at 43) explained that the changes were necessary because
employees and unions that had lost elections had no recourse to
judicial review “no matter how wrong the [Board’s] certification
may be.” The Senate bill (S. 1126), however, did not contain
a corresponding section and the House provision was subse-
quently deleted by the conference committee because such a
provision would permit dilatory tactics in representation pro-
ceedings. See Remarks of Senator Taft, 93 Cong. Rec. 6444.
The Board decision here—directing a representation election
—falls squarely within the category of rulings under Section 9
for which direct review in the Court of Appeals has been con-
sistently denied.* See A.F.L. v. N.L.R.B., supra; Cameron v.
N.LRB, supra; Local 542, Operating Engineer v. N.L.R.B.,
supra, 328 F. 2d at 853-854; Bays v. Miller, 524 F. 2d 631
% This general rule of nonreviewability applies to Board represen-
tation case decisions in all but a few rare circumstances, the principal
exception being a case in which the Board’s order, by its own ad-
mission, contravenes a specific prohibition of the Act. Leedom v.
Kyne, 358 U.S. 84 (1958). See, McCulloch v. Sociedad National,
372 U.S. 10 (1962). However, even the rare exceptions do not
permit direct review in the Courts of Appeals, which Stouffer’s seeks
here, but provides only for limited review in a district court. Boire
v. Greyhound, supra, 376 U.S. at 479-480; Eastern Greyhound Lines
v. Fusco, supra, 323 F. 2d at 479; Cameron v. N.L.R.B., 33 LRRM
2133 (C.A. 6, 1953), Local 542, Operating Engineer v. N.L.R.B.,
supra, 328 F. 2d at 853-854.
— A-39 —
(C.A. 9, 1975). Nor does this general rule of nonreviewability
fall here, merely because the party seeking relief has no readily
available avenue to court review. It is true that the Board’s
resolution of the joint-employer issue precludes Stouffer from
refusing to bargain and thereby precipitating an unfair labor
practice proceeding. (See, pet. for review, p. 2.) However, as
shown supra, pp. 4-5 (A. 37, 38), a full review of the legislative
history of the Act reveals a strong and lasting Congressional in-
tent to avoid delay in representation proceedings. And the Courts
have consistently held that this policy overrides any presumption
of the availability of judicial review, except in the rare situation
(not alleged here) where the Board has acted in direct contra-
vention of a specific mandate of the Act. See, supra, pp. 4, 5 (A.
37, 38), n. 3. Thus, the Ninth Circuit observed in Bays v.
Miller, supra:
To permit [a party seeking review] to go behind this formal
correctness and challenge the merits of the Board's finding,
even by application of a narrow “abuse of discretion” stand-
ard, would require the Court to make a time-consuming
analysis of the Board's factual findings and legal conclu-
sions. The availability of such chalienges would allow the
dilatory maneuvers which Congress chose to prevent.
In the instant case, Stouffer does no more than to challenge
the Board’s determinations that it is not a joint employer with
CSI of the latter’s employees at the Stouffer Cincinnati Inn, and
that a unit comprised of ColI’s, but not Stouffer’s, employees at
the Inn is appropriate. These are precisely the sort of deter-
minations which the Supreme Court has held are not subject to
judicial review except if, and when, they form the basis for a
final unfair labor practice order. A.F.L. v. Labor Board, supra;
Boire v. Greyhound, supra. It is therefore apparent that Stouffer's
position for review must be dismissed.
—
Conclusion
For all the foregoing reasons, the Board respectfully submits
that the petition for review must be dismissed for lack of juris-
diction.
Respectfully submitted,
JOHN S. IRVING
General Counsel
JOHN E. HIGGINS, JR.
Deputy General Counsel
CARL L. TAYLOR
Associate Generai ~ounsel
ELLIOTT MOORE
Deputy Associate General Counsel
WILLIAM WACHTER
Assistant General Counsel for Special
Litigation
RICHARD COHEN
Attorney
National Labor Relations Board
1717 Pennsylvania Avenue, N.W.
Washington, D.C. 20570
Telephone. (202) 634-1521
Dated: Washington, D.C., April 29, 1977
— A-41 —
Office of the Clerk
United States Court of Appeals
For the Sixth Circuit
Cincinnati, Ohio 45202
John P. Hehman
Clerk
May 17, 1977
Mr. Gerald Tockman
Mr. Louis N. Laderman
706 Chestnut Street, Suite 1010
St. Louis, Missouri 63101
Re: The Stouffer Corporation d/b/a Stouffer’s Cincinnati
Inn, Pet .oner v. National Labor Relations Board,
et al., Respondent
Our No. 77-1094
NLRB No. 9-RC-11305
Dear Counsel:
In accordance with Section 10(e) of the National Labor Re-
lations Act, as amended, you are hereby notified of the filing to-
day of the certified list of all documents, transcripts of testimony,
exhibits and other material upon which the order of the Board
was entered in the above case. The Board has filed this certified
list in lieu of transmitting the entire record to this Court. See,
Rule 17, Federal Rules of Appellate Procedure.
A copy of the certified list is enclosed.
Your attention is directed to Rule 25(d), Federal Rules of
Appellate Procedure which requires that all papers presented for
filing must include a certification that service on opposing coun-
— A-42 —
sel has been effected. The certificate should indicate the date,
the manner of service and the names of those served.
Please acknowledge receipt of this letter.
Very truly yours,
John P. Hehman, Clerk
s/ By Suzanne W. Hogan
Suzanne W. Hogan
Deputy Clerk
cc: w/o encl.
Mr. Elliott Moore Mr. Jerry F. Venn
Deputy Assoc. General Counsel 1200 Mercantile Library Bldg.
N.L.R.B. 414 Walnut Street
1717 Pennsylvania Ave. Cincinnati, Ohio 45202
Washington, D. C. 20570
United States Court of Appeals
For the Sixth Circuit
The Stouffer Corporation d/b/a
Stouffer’s Cincinnati, Inn,
Petitioner,
v. >» No. 77-1094
National Labor Relations Board,
Respondent. —
Certified List of the National Labor Relations Board
The National Labor Relations Board, by its Executive Secre-
tary duly authorized by Section 102.115, Rules and Regulations
of the National Labor Relations Board—Series 8, hereby certi-
—S
fies that the list set forth below constitutes a full and accurate
transcript of the entire record of a proceeding had before said
Board and known upon its records as Case No. 9-RC-11305S.
Such transcript includes the pleadings and testimony and evi-
dence upon which the Order of the Board was entered and in-
cludes also the findings and order of the Board.
Volume 1—Exhibits introduced into evidence at the Hearing:
Board’s Exhibit Nos.:
1-A thru 1-F
2 thru 9
10 and 10(a)
11 and 11(a)
12 and 12(a)
13 thru 18
Employer's Exhibit Nos.:
1 (rejected )
2 thru 8
9 (rejected )
10 thru 40
Petitioner's Exhibit Nos.:
1 thru 3
4 and 4-A
5 (identified only)
6 thru 38
Volume Il Certified Record
Stenographic transcript of testimony taken before
Hearing Officer Felix C. Wade on January 6, 7,
19, 22, 24, 26, 27, 28, 29 and 30, 1976 ...... 1-731
—
Volume Ill
Stenographic transcript of testimony taken before
Hearing Officer Felix C. Wade on February 9, 10,
and March 15, 16, 17, 18, 24, and 25, 1976 ... 732-1444
Volume 1V—Pleadings
1. Copy of Union's Brief to the Board, dated
_ fy | PrTricrrer Te
2. Copy of Petitioner's Brief, dated June 1, 1976
3. Copy of Decision and Direction of Election
issued by the National Labor Relations Board
on September 8, 1976 ..........0ceeee-
1-5]
1-50
1-19
IN TESTIMONY WHEREOF, the Executive Secretary of
the National Labor Relations Board, being thereunto duly au-
thorized as aforesaid, has hereunto set his hand and affixed the
seal of the National Labor Relations Board in the city of Wash-
ington, District of Columbia, this 12th day of May, 1977.
John C. Truesdale
Executive Secretary
National Labor Relations Board
(Seal)
CHRONOLOGICAL LIST OF RELEVANT
DOCKET ENTRIES
In the Matter of: Stouffer Corporation
d/b/a Stouffer’s Cincinnati, Inn
Case No.: 9-RC-11305
11.19.75 Petition filed.
11.28.75
12.11.75
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1.20.76
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Notice of Representation Hearing, dated.
Order Rescheduling Hearing, dated.
Hearing opened.
Petitioner's Interim Motion to the Regional Director,
dated.
Petitioner's Motion for Order to Show Cause why
the Petition should not be dismissed Administratively,
dated.
Petitioner's Motion to the Regional Director re-
questing a copy of his denial, dated.
Regional Director's Order denying Petitioner's
Interim Motion, dated.
Regional Director's Order denying Petitioner's Mo-
tion for Order to Show Cause, dated.
Petitioner’s request for extension of hearing date,
dated.
Telegram rescheduling hearing, dated.
Order Rescheduling hearing, dated.
Union's letter requesting rescheduling of the hear-
ing, dated.
Telegram rescheduling hearing, dated.
Hearing closed.
Order transferring Representation case to the Na-
tional Labor Relations Board, dated.
Union's Brief to the Board, dated.
Petitioner's Brief, dated.
Board’s Decision and Direction of Election, dated.
— A-46 —
In the United States Court of Appeals
For the Sixth Circuit
The Stouffer Corporation d/b/a .
Stouffer’s Cincinnati Inn,
Petitioner,
v. . No. 77-1094
National Labor Relations Board,
Respondent. |
PETITIONER’S OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS
To the Honorable, the Judges of the United States
Court of Appeals for the Sixth Circuit:
The Stouffer Corporation d/b/a Stouffer’s Cincinnati Inn,
Petitioner herein, moves the Court to deny the Motion to Dis-
miss filed by the National Labor Relations Board, Respondent
herein, for the reasons that said Motion is both untimely and
without merit under the extraordinary and exceptional circum-
stances presented by the Petition for Review herein. In support
of this Opposition, Petitioner submits herewith its Memoran-
dum of Points and Authorities.
Wherefore, Petitioner respectfully moves the Court to deny
Respondent’s motion to dismiss and to consider the instant pe-
tition for review on its merits.
Respectfully submitted,
GERALD TOCKMAN
Dated this 24th day of May, 1977.
ome fir G? ae
Memorandum of Points and Authorities in Support of
Opposition to Motion to Dismiss
I. Preface.
Petitioner, The Stouffer Corporation d/b/a Stouffer's Cincin-
nati Inn (herein “The Stouffer Corporation”) filed its petition
for review of the Order of Respondent National Labor Rela-
tions Board (herein the “Board”) in the matter known as “Cin-
cinnati S. I. Company, A Limited Partnership d/b/a Stouffer's
Cincinnati Inn and Hotel, Motel, Restaurant Employees and
Bartenders’ Local 12 of the Hotel and Restaurant Employees
and Bartenders’ International Union, AFL-CIO”, 225 NLRB
No. 170 (Case No. 9-RC-11305) [Attachment “A” to the
Board’s Memorandum of Points and Authorities, herein referred
to as “Board Memorandum”] on February 14, 1977. On March
2, Hotel, Motel, Restaurant Employees and Bartenders Union
Local No. 12 (herein “Local 12”) was granted leave to inter-
vene pursuant to Local 12’s motion therefor “to present a brief
and submit oral argument” in support of the Board’s Order
in 225 NLRB No. 170 (Motion for Leave to Intervene, para-
graph 3). On May 2, 1977, following notifications from the
Court and Intervenor Local 12' with respect to the filing of
the record herein, the Board instead filed its Motion to Dis-
miss in disregard of the fifteen (15) day time limitation for
such motions and without leave of Court for filing out of time.”
That Motion, as hereinafter demonstrated, is as inaccurate as
it is untimely.
1 In its April 19, 1977 Opposition to Petitioner’s Motion for
Entry of Default Judgment, Intervenor Local 12 stated that Inter-
venor had contacted the Board on a number of occasions concerning
the need to respond herein and that Intervenor was informed nothing
had been done “due to an oversight on the part of the attorney as-
signed to the matter”. Such “oversight” is further reflected in the
Board’s failure to file the certified list, pursuant to Fed.R.App.P.
17(b), within the time set by this Court’s Order of April 29, 1977.
2 6th Cir. R. 8; Fed.R.App.P. 27(d), 32(b).
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Il. Statement of the Case.
The Board's statement of the case that Cincinnati S. I. Com-
pany (“CSI”) “contested the unit sought” by Local 12 “con-
tending that CSI and Stouffer are joint employers” and that
the Board's Order for which review is sought here “found con-
trary to CSIs contention” (Board Memorandum, pps. 1-2) is
directly the opposite of what is involved here. The Board’s Order
(Attachment “A” to Board Memorandum) and the record of the
proceedings in the underlying representation matter No. 9-RC-
11305 on which it was based (Certified List of the National
Labor Relations Board, filed May 17, 1977) show: The Stouf-
fer Corporation and CSI, not CSI only, were parties to and
participated in the representation proceedings;* The Stouffer
Corporation and CSI, not CSI only, contested the unit sought
by Local 12; The Stouffer Corporation and CSI, not CSI only,
contended that The Stouffer Corporation and CSI were the
joint employer of the employees in the unit sought;* and, the
Board’s Order found contrary to the contention of The Stouf-
fer Corporation and CSI, not CSI only.* CSI determined to
accept the Board’s Order, thus foreclosing the “traditional
* In the hearings conducted in Case No. 9-RC-11305 (Volume
II, Certified List at pages 23, line 16-24, line 14; and 30, line 23-32,
line 1 of the Certified Record), in order that “all parties would be
before the Board”, Hearing Officer Felix C. Wade granted the motion
of the Stouffer Corporation to intervene (copies of the relevant record
pages are appended, for the Court’s convenience, as “Exhibit 1”).
+ The Brief filed with the Board was filed on behalf of The Stouffer
Corporation and CSI, summarizing the contentions of both parties
to the representation proceedings (Certified List, Volume IV, item 2).
> The Board’s Order (Attachment “A” to Board Memorandum),
in addition to specific determinations concerning the corporate and
interstate commerce aspects of The Stouffer Corporation (Attachment
“A”, p. 3 at fn. 3), expends nine (9) pages discussing and making
“conclusions” concerning the contentions and evidence elicited by
The Stouffer Corporation and CSI (Aitachment “A”, pps. 1-9) with
respect to the joint employer issue.
—_)
method” for review of the Board’s adverse determinations with
respect to The Stouffer Corporation and its contentions—The
Stouffer Corporation, being aggrieved by that Order and the
final consequences to The Stouffer Corporation flowing from
it, filed the petition for review now before this Court. That
petition, as hereinafter maintained, is a proper basis for that
judicial review of final administrative agency determinations
constitutionally mandated by fundamental due process.
III. Argument.
Although academically informative, the Board Memorandum
does not address the issues before this Court. Neither the de-
cisions cited by the Board nor the discussion of the “traditional
method” for review (Board Memorandum, pps. 2-6) deal with
the critical questions here. Those questions, simply put, are:
1. Whether a party to a representation proceeding (The
Stouffer Corporation), whose position and contentions
(e.g., “employer status” and “unit propriety”) are fi-
nally denied by Board Order, can obtain judicial re-
view of such “agency action”?
2. Whether the “traditional method” for such judicial re-
view, even if unavailable under the extraordinary cir-
cumstances here, is the only method for that judicial
® CSI, as noted by Local 12 in its Motion For Leave To Intervene,
participated in an election conducted in the employee unit found
“proper” by the Board’s Order for which review is sought here and,
following certification, entered into a collective bargaining agreement
with Local 12 (Motion For Leave To Intervene, paragraph 3). This
conduct, as the Board itself acknowledges (Board Memorandum,
pps. 5-6), denied to The Stouffer Corporation what the Board con-
tends is the “usual” and “only” avenue for review of Board repre-
sentation proceeding determinations, e¢.g., review when the represen-
tation determinations are the “basis” for a refusal to bargain order
(Board Memorandum, pps. 2-6).
—_—S
review of final agency action which due process re-
quires?
These issues, and the position of The Stouffer Corporation,
with respect to them, are set out infra.
1. “Finality” of agency action demands availability of ju-
dicial review.
Acceptance by CSI of the Board’s determinations that CSI
and The Stouffer Corporation do not constitute a “joint em-
ployer” and that a unit limited to some of the employees working
at Stouffer's Cincinnati Inn is proper,’ without question, finally
resolved such matters with respect to CSI and Local 12. Such
“finality”, however, is equally applicable to and determinative of
the contrary position and contentions of The Stouffer Corpora-
tion under the extraordinary circumstances present here. In fact,
the Board acknowledges such finality as to The Stouffer Corpora-
tion but simply maintains that such conclusive, adverse deter-
minations® are not subject to review (Board Memorandum, pps.
5-6).
All of the authorities cited by the Board in its Argument
(Board Memorandum, pps. 2-6) deal with situations where only
one party was involved in a Board representation proceeding
and that party sought to circumvent the readily available method
of “traditional review.” Here, notwithstanding the Board's fail-
7 See note 6 supra and text thereby supported.
* That adverse determinations of the kind for which review is
sought here are “final” cannot be Fong For example, Black’s
Law Dictionary (4th Ed. 1968) de “final order” at page 1247
as:
“One which terminates the action itself, or decides some matter
litigated by the parties, or operates to divest some right; or one
which completely disposes of the subject-matter and the rights
of the parties.” (emphasis added)
— A-51 —
ure to acknowledge the “party-status” of The Stouffer Corpora-
tion in the underlying representation proceedings, there are two
parties to the final determinations contained in the Board’s
Order—although one party (CSI) has closed off the “tradi-
tional” avenue of review, such closure does not make the Board’s
determination as to the other party (The Stouffer Corporation)
any less “final” or “reviewable”. On the contrary, absent the
“circumvention” and “delay” considerations underlying the
policies with respect to the “traditional review” authorities cited
by the Board,® the extraordinary circumstances here’® illustrate
why “finality” and thus “reviewability” exist.
The Board’s Argument does not and cannot seriously quarrel
with the facts that its Order is “final” and “aggrieves” The Stouf-
fer Corporation with respect to those determinations for which
The Stouffer Corporation, as a party to the underlying representa-
tion proceeding, seeks review in this Court. On the contrary,
the Board simply ignores the questions of finality and adverse
. disposition by the expedient of the “traditional review” argu-
ment it “traditionally” makes—e.g., the “usual method” is the
only avenue of review. But, Congress did not intend the “tra-
ditional review” procedure to serve as a “weapon” for denying
® Board Memorandum, pps. 3-5.
10 Although the Board makes light of the substantive adverse
determinations to the rights and interests of The Stouffer Corpora-
tion for which review is sought here (e.g., Board Memorandum, pe 6
at the last paragraph of Argument), it neither denies “finality
that The Stouffer Corporation is “aggrieved”. More importantly, the
Board does not and cannot cite any case like the one before this
Court wherein review has been denied in a two-party, joint employer
situation. Boire v. Greyhound Corporation, the only “joint em-
ployer” decision cited, instructs exactly the opposite of the Board's
conclusion. In Boire where the “joint employer” determination was
opposite that here, e.g., the two parties were determined to be a
“joint employer”, the only basis for denying review was the avail-
ability to either party of “the “traditional review” method. Absert
such availability, which under the circumstances present here is
clearly not available, the Court made clear that review would not
only have been proper but required.
— A-52 —
judicial review to an aggrieved party whose rights have been
affected or denied by what that party contends is an arbitrary
and improper administrative decision. The unavailability of
“traditional review”, under the extraordinary circumstances
here, demonstrates the “finality” and “reviewability” of the
Board’s Order as applied to The Stouffer Corporation.
“. . . [T]he courts must remain mindful of their position
as the only source of relief available to most claimants.
The courts enjoy a different perspective from the legis-
lature, however, for they also must sit as a check on gov-
ernmental excesses and into the calculus of interest they add
a general presumption of reviewability. Indeed, it would
be rare that a court was without jurisdiction to entertain
any objections whatever. Even under the committed-to-
agency discretion doctrine, partial review may be available
for separable issues, as to which discretion or expertise is
insignificant; this ‘vertical’ exception usually applies to
procedural issues. There are also issues of law which may
be reviewed without reaching factual disputes . . .
There is rarely any justification for holding that an agency
action is invariably unreviewable. Most Courts have ad-
mitted the possibility of review for claims of unconstitu-
tionality in substance or procedure and for allegations that
the agency violated clear statutory duties or exceeded its
Statutory jurisdiction.” Saferstein, “Nonreviewability: A
Functional Analysis of ‘Committed to Agency Discretion’ ”,
82 Harv.L.Rev. 367, 370, 372, 398 (Dec. 1968).
The Administrative Procedure Act, Chap. 10, 5 USC §§ 701-
706:
Lt)
. embodies the basic presumption of judicial review
to one ‘suffering legal wrong because of agency action, or
— A-53 —
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, 5 U.S.C. § 702, so long as
no statute precludes such relief or the action is not one
committed by law to agency discretion, 5 U.S.C. § 701(a).
The Administrative Procedure Act provides specifically
not only for review of ‘[a]gency action made reviewable by
statute but also for review of final agency action for which
there is no other adequate remedy in a court,’ 5 U.S.C.
§ 704.” Abbott Laboratories v. Gardner, 387 U.S. 136,
140 (1967).
See also, Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 410 (1971).
2. Direct review of final agency action is constitutionally re-
quired.
The argument advanced vy the Board here, that the appli-
cability of a special review statute (Section 10(f) of the Na-
tional Labor Relations Act, 29 USC §151, et seq.) excludes
nonstatutory review, might be of some relevance if CSI had
filed the instant petition for review. Although the continued
viability of that kind of argument has been seriously questioned
by decisional law directed toward assuring the wide availability
of judicial review for the challenge of federal “agency action”
(e.g., Califano v. Sanders, — U.S. —, 51 L.Ed.2d 192 (1977);
Bays v. Miller, 524 F.2d 631 (9th Cir. 1975)), it is clear
such a contention has no applicability where, as in the case
now before this Court, a party adversely affected by agency
action does not have an accessible review statute available to
it. Under such extraordinary circumstances, a party (here, The
Stouffer Corporation) subjected to “final agency action” (here,
denial of “employer status” and contra “unit findings”) for which
there is no other judicial remedy is entitled to the “basic (con-
Stitutional) presumption” of the availability of judicial review.
Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 28
— A-54 —
L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, supra;
United States v. Storer Broadcasting Co., 351 U.S. 192 (1956).
The petition for review before this Court asserts, and for
purposes of the instant motion must be taken as showing with-
out dispute, that (Petition for Review, paragraphs 1-2):
The Stouffer Corporation, petitioner here, was a party to
and participated in the underlying representation proceed-
ings (9-RC-11305) upon which the Board’s Order at 225
NLRB No. 170 is based;
The Stouffer Corporation maintained that it was an em-
ployer along with CSI of the employees involved in the
representation proceedings and that the grouping sought
was not an appropriate unit;
The Board adversely determined the contentions of The
Stouffer Corporation;
Such adverse determinations affected and will affect the
positions and interests of The Stouffer Corporation not
only with respect to Stouffer's Cincinnati Inn but also in
connection with other such facilities owned and operated
by The Stouffer Corporation with other entities similar in
nature and scope to CSI; and,
The actions of CSI foreclosed any method other than the
petition for review here through which judicial scrutiny
of the Board’s final determinations as to The Stouffer Cor-
poration can be obtained.
Under the unique fact circumstances set out here, arguments
concerning the “traditional” method of review where available
are simply inappropriate. Such contentions are not applicable
to deny the constitutionally mandated requirement of judicial
review of final agency action that underlies current decisional
law (e.g., Bethesda-Chevy Chase Broadcasters v. FCC, 385 F.
2d 967, 968 (D.C. Cir. 1967); lsenbrandtsen Co. v. U.S., 211
— A-55 —
F.2d 51, 55 (D.C. Cir. 1954)) particularly where, as here,
the “policy” considerations advanced against review (delay of
representation proceedings) do not exist See, e.g., Note, “Juris-
diction to Review Federal Administrative Action: District Court
or Court of Appeals,” 88 Harv.L.Rev. 980, 987 (Mar. 1975).
Although inadvertently omitted from the Board’s motion and
supportive inemorandum, the party status of The Stouffer Corpo-
ration to the representation proceedings and the final, adverse
dispositions by the Board of its substantive rights and interests
are determinative of the propriety of tne present review proceed-
ing. Final, adverse affects by agency action are reviewable
where “extreme” circumstances exist. Retail Store Employees
Union, Local 954 v. Rothman, 298 F.2d 330 (D.C. Cir. 1962); |
Note, supra, at 88 Harv.L.Rev. 987, 993-994. “Extreme” cir-
cumstances are unquestionably present in this matter since final
Board action has adversely disposed of substantive, statutory
rights of The Stouffer Corporation for which agency actions
the “traditional” review method is not available under the statu-
tory scheme of the NLRA. Templeton v. Dixie Color Printing
Co., 444 F.2d 1064 (Sth Cir. 1971).
“. . [Jurisdiction af the Federal Courts, of course, is not
absolute. It exists only for the protection of those rights
which Congress intended to be judicially enforceable, and
for which there is no other adequate administrative or judi-
cial remedy.” Deering Milliken v. Johnston, 295 F.2d 856,
859 (4th Cir. 1961; emphasis added).
IV. Conclusion.
As a party to the underlying representation proceedings, ag-
grieved by the final Order of the Board adversely disposing of
its position and contentions concerning employer status and
proper employee unit, The Stouffer Corporation has standing to
maintain the instant Petition for Review. Unavailability of
— A-56 —
the “traditional” or usual method for review, under the extreme
and extraordinary circumstances here, does not displace but in
fact enhances the position of The Stouffer Corporation in this
matter. Accordingly, the Board’s Motion to Dismiss the Petition
for Review should be denied particularly where, as here, the
complex and substantive issues before the Court demand dis-
position of this matter on the merits and the record now filed
with this Court.
Respectfully submitted,
GERALD TOCKMAN
Dated this 24th day of May, 1977.
[*23] EXHIBIT 1
I didn’t talk about a written motion I am sure, Mr. Hearing
Officer. I think Mr. Venn is in error on that.
Mr. Venn: I didn’t finish. I thought you were going to give
him an opportunity to reargue or resubmit
Mr. Kennedy: Excuse me.
Mr. Venn: A motion on the same subject supported by other
evidence. Maybe that’s a technicality.
Hearing Officer: I will say it is my understanding a motion
will be refiled.
Mr. Kennedy: Restated?
Hearing Officer: Restated?
Mr. Kennedy: Yes.
Hearing Officer: Are you prepared to do that, to restate that
motion at this time?
* Numbers appearing in brackets in text indicate page numbers
of orginal stenographic transcript of testimony.
—_.Y
Mr. Kennedy: Yes. It will be substantially the same.
This is a motion by C. S. I. Company, a limited partnership,
and the Stouffer Restaurants and Inns, Division of the Stouffer
Corporation to intervene as a party employer in this matter for
the reason that the real employer, in fact in law, in this action
is the same employer as the employer involved in Case No.
9-RC-10528 which was the subject of an investigation and hear-
ing by the Board beginning on May 24, 1974 and ending on
July 1, 1974.
The record as it stands is neither complete nor accurate if the
position of the Petitioner is to maintain throughout [24] this
hearing—and it’s necessary that this Employer have a right to
to stand here in the sense that he’s more than a bystander, more
or less the subject of the testimony as it is adduced by the peti-
tioner.
I don’t precisely know what the extent of your last ruling
was, and that’s why I have tried to add something additional
to the motion in the present form by seeking by a motion from
you the right to be an actual party to this thing and the right
to stand so that what this Employer may say and do will be
effective tools in the hands of you as the Hearing Officer and
the Regional Director in the decision of this thing.
To that end and in support of that, I am prepared to submit
some evidence.
Hearing Officer: Mr. Venn, would you like to be heard on
that?
Mr. Venn: Yes, I really honestly feel Mr. Kennedy's motion
begs the question here.
I don't deny the record is before the Regional Director on the
previous “R” Case hearing. The Petitioner petitioned for an
overall unit of all the relevant employees at Stouffer's.
— A-58 —
In any event, we petitioned for an overall unit, and their
parties agreed that on that basis that the employer, the correct
employer, was the employer of the housekeeping * * *
* . > > > * aa
[30] table here a complete copy of the transcript of the record
in Case No. 9-RC-10528. Do you wish me to introduce this
into the record here or do you have in the Regional files the
original copy of this document?
Hearing Officer: We have the originals of that document.
Mr. Kennedy: Are they available to you, sir?
Hearing Officer: They are available at this time.
Mr. Kennedy: Do you want to——
Hearing Officer: I would prefer to have them introduced
through a witness at a somewhat later occasion.
Mr. Kennedy: Do you mean this record I am speaking of?
Hearing Officer: Yes, that record constituting 345 pages
wherein the record began on May 24, 1974 and closed on July
1, 1974.
Mr. Venn: I would object to the admission of the record at
this time.
Hearing Officer: It has not been admitted.
Mr. Venn: All right.
Hearing Officer: I stated that if it is admitted, it will be ad-
mitted later through a witness.
Mr. Venn: All right.
Hearing Officer: At this juncture, Gentlemen, I am disposed
to grant Mr. Kennedy's motion to intervene on behalf of Cin-
cinnati S. I. Company, a limited partnership, and [31] Stouffer
Restaurant's and Inns, Division of the Stouffer Corporation,
— A-59 —
d/b/a Stouffer's Cincinnati Inn as being taken in the conjunc-
tive rather than in the disjunctive.
That is the party upon whose behalf you wish to intervene
at this time, is that correct?
Mr. Kennedy: That's correct.
Hearing Officer: I do this for the purpose of assuring the
Regional Director that all possible parties to this hearing will
be present and represented throughout the course of this hearing.
It will be the Regional Director’s determination whether Cin-
cinnati S. I. Company, a limited partnership, and Stouffer
Restaurants and Inns, Division of the Stouffer Corporation,
d/b/a Stouffer's Cincinnati Inn or simply Cincinnati S. I. Com-
pany, a limited partnership, or any other employing entity con-
stitutes an employer of the employees sought or in an appro-
priate unit.
Therefore, the motion is granted at this time and I full-well
expect we will have extensive record testimony to the corpo-
rate relationship of these possibly different corporations.
I am not at this time aware as to whether or not they are
separate corporations or a single corporation; but I will expect
testimony to be adduced with respect to that and with respect
to employer employees, and as to the appropriateness [32] of
any appropriate bargaining unit.
At a somewhat later time, I would like to see proposed stipu-
lations with respect to commerce with respect to either these
employers jointly ar severally as the parties and I determine
at that time.
Mr. Kennedy: I was distracted for a moment, Mr. Hearing
Officer. Did you say you wanted to have some testimony pre-
sented on this?
Hearing Officer: Yes, sir.
Mr. Kennedy: Some testimony?
— A-60 —
Hearing Officer: Yes.
Mr. Kennedy: I just wanted to be sure I heard you.
Hearing Officer: You heard me.
Mr. Kennedy: Thank you.
Hearing Officer: Now is it possible for us to proceed?
I will retain Employer’s Exhibit 1 at this time and a list of
rejected exhibits until such time someone can identify it through
sworn testimony and place it in the record.
Mr. Venn, are you prepared to proceed?
Mr. Kennedy: I have some matters I would like to bring
before the Hearing Officer, please.
Hearing Officer: Prior to going on with testimony?
What do you wish to bring forward, Mr. Kennedy?
Mr. Kennedy: Are we off the record now?
— A-61 —
In the United States Court of Appeals
for the Sixth Circuit
The Stouffer Corporations d/b/ a,
Stouffer’s Cincinnati Inn,
Petitioner,
v. \ No. 77-1094
National Labor Relations Board,
Respondent. )
RESPONSE TO PETITONER’S OPPOSITION TO MOTION
TO DISMISS THE PETITION FOR REVIEW
In its Opposition to the Board’s Motion to Dismiss the Pe-
tition for Review (herein “Pet. Opp.”), Stouffer argues that the
Board’s determination that Stouffer is not a joint employer of
the employees in the bargaining unit has created an “extreme”
circumstance necessitating Court review of the Board’s repre-
sentation decision under Section 10(f) of the Act (Pet. Opp.
10).1. The “extreme” circumstance cited by Stouffer is the fact
that the Board’s “joint employer” determination has made it
impossible for Stouffer to obtain review by refusing to bargain
and awaiting a Board order issued under Section 10(c) of the
Act. However, the courts have uniformly recognized that Con-
gress consciously designed Section 10(f) to prevent review of
1 Significantly, Stouffer has cited no case in which direct review
of a representation decision was permitted under Section 10(f).
Retal Store Employees Union, Local 954 v. Rothman, 298 F.2d 330
(C.A.D.C., 1962), cited 4 Stouffer as establishing the proposition
that “adverse affects (sic) by agency action are reviewable where
‘extreme’ circumstances exist” (Pet. Opp. 10) was, in fact, a case in
which the court granted the Board’s motion to dismiss an action
brought in district court (not pursuant to Section 10(f)) to review
the General Counsel’s refusal to issue an unfair labor practice com-
plaint. Id. at 332.
—_y
~
such representation determinations unless they become the sub-
ject of a Section 10(c) order and that, as a result, some parties
to representation proceedings may be precluded from obtain-
ing review of adverse determinations. See cases cited in the
Board's Motion to Dismiss, at pp. 3-4.
In A.F.L. v. N.L.R.B., 308 U.S. 401, 407-411 (1940),
which involved a situation analogous to the present case, the
Supreme Court held that where the Board's representation de-
cision resulted in the certification of one of two competing unions,
the other union could not obtain review under Section 10(f)
even though it claimed to represent a majority of the unit em-
ployees. There, as here (Pet. Opp. 8-10), the party suffering
the adverse determination claimed that due process required re-
view. The Court succinctly rejected this contention: “The argu-
ment too that Congress has infringed due process by withhold-
ing from federal appellate courts a jurisdiction which they never
possessed is similarly without force.” A.F.L. v. N.L.R.B., supra,
308 U.S. at 412. See also, Local 542, Int'l Union of Operating
Engineers v. N.L.R.B., 328 F.2d 850, 853-854 (C.A. 3, 1964),
cert. denied, 379 U.S. 826.
Indeed, it is apparent that the same reasons noted by the Court
in the A.F.L. case for Congress’ decision to preclude review of
representation decisions absent a Section 10(c) order are present
here. Thus, Congress weighed the benefits of permitting direct
court review of representation determinations against “the long
delays . . . resulting from applications to the federal appellate
courts for review of orders for elections” (/d. at 409-410) and
“made a deliberate choice of confliciing policies” (/d. at 411)
to preclude review. Stouffer contends (Pet. Opp. 6) that no
“delay” considerations exist in the present case. On the con-
trary, the identical “delay” factors in the A.F.L. case are present
here: If the Board's representation decision were subject to re-
view, the bargaining relationship between C.S.I. and the Union
— A-63 —
—neither of whom seek review—would be inhibited by the
possibility of the substitution of a new party to the bargaining
relationship or else by the potential for another elec..on.
In any event, Stouffer's interests under the Act have not been
injured, for Stouffer suffers no legal harm until the Board issues
an order against it arising out of unfair labor practice charges.
Should Stouffer be subjected to a Section 10(c) order that in-
volved its supposed “joint employer” status, it would, of course,
be able to obtain review of that issue under Section 10(e) or
(. To be sure, the negotiation of a contract between C.S.I.
and the Union may have some “practical” impact on Stouffer's
dealings both with its employees who work with the C.S.I. em-
ployees and with C.S.I. itself, but this is merely an incidental
result of the Board’s representation determination, not unlike
the effect that the negotiation of a bargaining agreement by a
subsidiary corporation might have on the parent corporation.
Such an interest is not sufficient to allow the incidentally affected
party the right to seek review under Section 10(f).?
2 Stouffer contends (Pet. . 2) that Rule 8 of this Court's
Local Rules Supplementing the Federal Rules of Appellate Proce-
dure required the filing of the Board's motion to dismiss herein within
fifteen days after Stouffer filed its petition for review. The apparent
Pp of Supplementary Rule 8 is to require an appellee to bring
to the Court's attention any ural defects in the man-
ner in which the j the Court has been involved—for
example, the filing of an untimely notice of appeal. The Rule cannot
reasonably be int to mean that subject matter jurisdiction
is automatically erred on this Court unless an objection is raised
within 15 days. Cf. Rule 12(h)(3), F.R.Civ.P., which states that a
defense of lack subject matter jurisdiction can be raised at any time.
- a Jordon v. Gilligan, 500 F.2d 701, 704, 710 (C.A. 6,
In any event, Stouffer fails to note that Local Rule 8 also provides
that the Court may waive the fifteen-day requirement sua sponte.
Since, as demonstrated in our original moving pa and above,
this Court has no jurisdiction to entertain a petition a of
Board's re niation decision, the interests of conserving judicial
and administrati ive resources warrant granting the Board's motion to
dismiss and waiving the fifteen-day requirement of Local Rule 8.
— A-64 —
Respectfully submitted,
JOHN S. IRVING
General Counsel
JOHN E. HIGGINS, JR.
Deputy General Counsel
CARL L. TAYLOR
Associate General Counsel
ELLIOTT MOORE
Deputy Associate General Counsel
/s/ WILLIAM WACHTER (KBH)
WILLIAM WACHTER
Assistant General Counsel for Special
Litigation
KENNETH HIPP
RICHARD COHEN
Attorneys, National Labor Relations
Board
1717 Pennsylvania Avenue, N.W.
Washington, D.C. 20570
Telephone: (202) 634-1521
Dated: Washington, D.C.
June 2, 1977
— A-65 —
In the United States Court of Appeals
For the Sixth Circuit
The Stouffer Corporation d/b/a '
Stouffer's Cincinnati Inn,
Petitioner,
v. » No. 77-1094
National Labor Relations Board,
Respondent. /
INTERVENOR’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SU.?ORT OF MOTION TO
DISMISS PETITION FOR REVIEW
I. Preliminary Statement
To the extent that any confusion may exist as to the proce-
dural posture of this review proceeding' Intervenor offers the
following brief statement of pertinent facts. Intervenor (herein
the “Union”) petitioned for an election among employees of
Cincinnati S.I. Company (herein “CSI"), a limited partnership
owning and operating Stouffer's Cincinnati Inn, Cincinnati,
Ohio pursuant to a license agreement with the Stouffer Cor-
poration (herein “Stouffer”). Stouffer operates the restaurant
facilities at the Inn under a lease with CSI as well as providing
food and beverage service at banquet functions. The Union
did not petition for an election among the employees employed
by Stouffer's at the Inn, only those employed by CSI. Stouffer
sought and was granted leave to intervene in the representa-
1 Petitioner claims that its status as an intervening party in the
Board representation proceeding was not made clear in the Board's
motion and supporting memorandum.
— A-66 —
tion proceeding before the Board. Stouffer urged two positions
in that proceeding, namely, that it was the joint employer (with
CSI) of the CSI employees the Union was petitioning for, and
that the only appropriate unit for an election was one en-
compassing the employees of CSI as well as those of Stouffer
employed at that Inn. The Board rejected both contentions
finding that Stouffer was not a joint employer of the CSI em-
ployees and that a unit limited to CSI employees was appro-
priate, both as urged by the Union. Subsequently, the Board
conducted an election among the CSI employees and the Union
was successful and was thereafter certified as the bargaining
agent of those employees. CSI and the Union then entered
into a collective bargaining agreement effective December 5,
1976 through December 4, 1979 covering the CSI employees.
No Stouffer employees are covered by that agreemen
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