Petition — Metro Truck Body, Inc. v. National Labor Relations Board

Supreme Court brief1980

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IN THE

Supreme Court of the United States

October Term, 1980

No. _é » Maes : e}

METRO TRUCK Bopy, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BoarD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CASTELLANOS & O’NEILL

FRANCIS J. O'NEILL, Esq.

1346 Wilshire Boulevard

Los Angeles, California 90017

Telephone: 213/484-1772

Attorneys for Petitioner

METRO TRUCK Bopy, INC.

ERK |

PANDICK PRESS, WEST COAST, 1945 S. FIGUEROA, LOS ANGELES, CALIFORNIA (213) 747-4321

)

SUBJECT INDEX

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IN THE

Supreme Court of the United States

October Term, 1980

INDEX

AUTHORITIES CITED

CASES PAGE

United States Supreme Court: No.

N.L.R.B. v. Tower Co., 329 U.S. 324, 333, (1946)..........c0000 ll

United States Court of Appeals: METRO TRUCK Bopy, INC.,

N.L.R.B. v. Air Control Prods. of St. Petersburg, Inc., 335 sas

Sih 05, ORC AB cs aici nectcesicks 12, 13 reenene

N.L.R.B. v. Bata Shoe Co., 377 F.2d 821 (C.A. 4) ....0...... 12,13 VS.

N.L.R.B. v. IDEAL LAUNDRY AND DRY CLEANING

CO SUR EIG ee eee 12 NATIONAL LABOR RELATIONS Boar,

N.L.R.B. v. JOCLIN MFG. CO., 134 F.2d 627...........c.s0000000 12 Respondent.

N.L.R.B. v. ORTRONIX, INC., 380 F.2d 737 (C.A. 5) ........ 12

N.L.R.B. v. POINSETT LUMBER MFG., 221 F.2d 121...... 12

N.L.R.B. v. SUN DRUG CO., 359 F.2d 408..............0:0000++ 12, 13 PETITION FOR A WRIT OF CERTIORARI TO THE

N.L.R.B. v. WILKENING MFG. CO., 207 F.2d 98, 100 ....... 13 UNITED STATES COURT OF APPEALS

UNITED STATES RUBBER COMPANY v. N.L.R.B., 373 FOR THE NINTH CIRCUIT

Fa ee 0b B catiietaece niece Fat CTE Oe 12

National Labor Relations Board Decisions:

Metro Truck Body, Inc., 223 NLRB Crses 988 ........... cece 5 To the Honorable, the Chief Justice and Associate Justices

Metro Truck Body, Inc., 230 NLRB Cases 28 .................000es 4

of the Supreme Court of the United States.

STATUTES METRO TRUCK BODY, INC., the petitioner herein,

prays that a writ of certiorari issue to review the judgment of

~~ oi. tees epee Re ‘he United States Court of Appeals for the Ninth Circuit

ationa abor Keilations Act, as amende tat. " : Sy ;

73 Stat. 519, 88 Stat. 395, 29 J.S.C. 151, et seq. )............00 4 CRONE Oe SRE Fae Ye oe tev eee

II UTP cate hnccia deer ete ee oie ee 5

a) Daan dn Nis area caenaean ne RL 3,4, 6 ; OPINIONS BELOW

gg |G RSE IGA Se UN MOSLAN AEE rr na P= © : i

Section I csicka lotsa de-stlbvos case sascha iccaamatakieiacsataueseisae sdeas iiadiuanda 4 The opinion of the United States Court of Appeals for the

Section I Nak patie cnipeanrincapacatepialienshaapiedisinebatations ovceecons 5 ) Ninth Circuit is unreported and is printed in Appendix A

aa ee | autached hereto, infra

Federal Rules of Evidence: The judgment of the United States Court of Appeals for

Gee Re ae oe Sol ec 2, 3,10, 11 ! the Ninth Circuit is printed in Appendix B, hereto, infra.

Rules of the United States Supreme Court:

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JURISDICTION

The judgment of the United States Court of Appeals for

the Ninth was entered on March 10, 1980. A timely petition for

rehearing was denied on February 25, 198v.

The jurisdiction of the Court is invoked under 28 USC

9/254 and Rule 19.1(b) of the Rules of the United States

Supreme Court; where a Court of Appeals has, in effect, by

ignoring the issue presented on appeal, decided an important

question of federal law which has not been, but should be,

settled by this court; to wit: what standards should apply to a

“true translation” of a NATIONAL LABOR RELATIONS

BOARD ballot from English to Spanish and for markings in the

Spanish language on the ballots counted and certified for the

Union in an NLRB election. This question affects more than

the parties to this action since it effects a large population of the

United States who are Spanish speaking in administrative and

judicial proceedings involving the use and translation of the

Spanish language. At issue is the interpretation and application

of Rule 604 of Rules of Evidence for United States Courts and

Magistrates, and Rule 604 of the Federal Rules of Evidence,

both sections requiring a “true translation.”

QUESTIONS PRESENTED

1. Whether the finding of fact by the NLRB‘ that:

On September 1, 1976, a majority of employees in the

appropriate unit in a secret ballot election conducted by NLRB

designated the Union as their collective bargaining representa-

tive,? is supported by substantial evidence in the record as a

whole where the record does not comply with Rule 604 of the

Federal RULES OF EVIDENCE.

' NATIONAL LABOR RELATIONS BOARD is herein referred

to as NLRB.

2 Transcript of Record, Pleadings, Volume 1, page 116, herein

referred to as (R. 116). References preceding a semicolon are to the

NLRB findings; those following, to the evidence.

2. Whether the NLRB has conducted a fair hearing re the

meaning of the Sth and 14th Amendment of the United States

Constitution “due process” clause where the NLRB has denied:

(a) A hearing on the alleged charge herein of Viola-

tion of NLRAS Section 8(a)(5) and Section 8(a)(1), 29

U.S.C. 158(a)(5) and 29 U.S.C. 158(a)(1), and has

granted summary judgment that was opposed by the

company,‘ and has entered its orders that are sought to be

enforced herein.

STATUTES INVOLVED

Federal Rules of Evidence, Rule 604, provides:

“An interpreter is subject to the provisions of these rules

relating to qualification as an expert and the administration of

an oath or affirmation that he will make a true translation.”

Rules of Evidence— United States Supreme Court Version,

Rule 604 provides:

“An interpreter is subject to the provisions of these rules

relating to qualification as an expert and the adminstration of

an oath or affirmation that he will make a true translation.”

29 USC 160(3)e provides:

“The Board shall have power to petition any court of

appeals of the United States, . . ., wherein the unfair labor

practice in question occurred or wherein such person resides or

transacts business, for the enforcement of such order and for

appropriate temporary relief or restraining order, and shall file

in the court the record in the proceedings, as provided in

Section 2112 of title 28, United States Code (28 USC § 2112).

oes The findings of the Board with respect to questions of fact

if supported by substantial evidence on the record considered as

a whole shall be conclusive.”

3 NATIONAL LABOR RELATIONS ACT is herein referred to

as NLRA.

4METRO TRUCK BODY, INC. is herein referred to as the

“Company.”

“4

7m]

53]

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United

States provides in pertinent part as follows:

“No person shall be . . . deprived of life, liberty, or

property, without due process of law... .”

STATEMENT OF THE CASE

1. Nature of the case

NLRB has filed an application herein pursuant to NLRA,

as amended (61 Stat. 136, 73 Stat. 519, 88 Stat. 395, 29 U.S.C.

151, et seq.) The basis of the application herein is Section

10(e) of NLRA, 29 U.S.C. 160(e) for the enforcement of its

orders issued against the Company on June 14, 1977 and

reported at 230 NLRB Cases 285 (R. 111-121); infra,

Appendix C.

The NLRB orders are in part based on findings of fact and

conclusions of law made in a representation proceeding under

Section 9 of NLRB, 29 U.S.C. 159, (NLRB Case Number 31-

RC-3127), the record of said proceeding being before this

Court pursuant to Section 9(d) of NLRA, 29 U.S.C. 159(d).

The United States Court of Appeals for the Ninth District

had jurisdiction of this application, because the alleged unfair

labor practices are alleged to have occurred at the Company’s

plant in Torrance, California, within this Court’s jurisdiction.

2. Course of Proceedings

(a) Representation Proceeding

The Union filed a representation petition on March the 10,

1975 with NLRB (R. 3-4). On March 13, 1975, the Union

filed a charge with NLRB alleging that the Company violated

Sections 8(a)(3) and (8)(a)(1) of NLRA, 29 US.C.

® Decisions and Orders of the NLRB, Volume 230, Page 28.

138(a)(3) and 138(a)(1) when it discharged eight (8) em-

ployees because they were “illegal aliens.” On April 20, 1976,

the NLRB dismissed NLRB General Counsel’s Complaint,

which case is reported, as Metro Truck Body, Inc. 223 NLRB

Cases 988.

In conformity with NLRB policy to delay representation

proceedings until the unfair labor charges are resolved, the

representation hearing pursuant to Section 9(c) of NLRA, 29

U.S.C. 159(c) was postponed until after the dismissal of the

Section 8 charges; the hearing on the representation proceed-

ings was held on July 28, 1976 (R. 5), before Hearing Officer

SHERI ROSS. Decision and Direction of Election was entered

on August 5, 1976 by the Regional Director pursuant to

authority delegated by NLRB under Section 3(b) of NLRA, 29

U.S.C. 153(b).

The company filed its REQUEST FOR REVIEW OF

DECISION AND DIRECTION OF ELECTION on August 18,

i976 with NLRB (R. 12), which was denied on August 26,

1976 by NLRB (R. 17).

The representation election was held on September the Ist,

1976 (R. 19-20).

At that time, the Company objected to the Tally of Ballots

and indicated that it would file formal Ojections to Tally of

Ballots (R. 29).

The Company filed its OBJECTIONS TO TALLY OF

BALLOTS AT ELECTION (R. 21) and OBJECTIONS TO

ELECTION (R. 29) on September 9, 1976.

The Regional Director purusant to delegated authority

(supra) entered his Supplemental Decision and Certification of

Representative on September 29, 1976 (R. 47-50).

The Company filed itt REQUEST FOR REVIEW OF

SUPPLEMENTAL DECISION OF REGIONAL DIRECTOR

AND CERTIFICATION OF REPRESENTATIVE on October

8, 1976 with NLRB (R. 51), which was denied by NLRB on

November |, 1976 (R. 60).

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(b) The Unfair Labor Practices Proceeding

The Union filed a Charge against the Company on January

10, 1977, alleging violations of Sections 8(a)(1) and 8(a)(5)

of NLRA in that the Company has failed and refused to

bargain in good faith with the Union (R. 61); the Regional

Director of NLRB filed his complaint thereon on February 3,

1977 (R. 62-66); the Company filed an Answer to Complaint

on February 14, 1977 (R. 67).

General Counsel for NLRB filed a Motion for Summary

Judgment on March 2, 1977 (R. 71); the Company filed its

OBJECTIONS TO MOTION FOR SUMMARY JUDGMENT

on March 31, 1977 (R. 86).

NLRB entered its Decision and Order granting Summary

Judgment on June 14, 1977 (R. 111-121), which is the basis for

the Application for Enforcement herein.

The Ninth Circuit Court of Appeal entered its Order For

Enforcement on March 10, 1980.

3. Statement of Facts Relevani to the Issues

(a) “Majority” of the employees in a unit required for

Representation Certification.

The official NLRB ballot that was used at the election had

the following instructions:

“MARK AN ‘X’ IN THE SQUARE OF YOUR CHOICE

MARQUESE CON UNA ‘X’ DENTRO DEL CUADRO

DE SU SELECCION

YES NO

SI NO

in response to the question in English and Spanish:

eee «

rt 6 csr ii

“Do you wish to be represented for purposes of collective

bargaining by—

AUTOMOTIVE EMPLOYEES, LAUNDRY DRIVERS

& HELPERS LOCAL 88, INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA”6

(R.18).

The spanish translation for “YES” on the official ballot

was “SI” namely one capital “S” and one capital “I”. There

were no markings placed over the “I” on the official ballot, i.e.

no accent mark nor any dot. In Spanish the meaning of the

word is changed by the use of a dot or an accent when writing

the word (R. 24).

In the instant case, two of the ballots had written in the box

under the word “YES” — “SI”, the handwritten Spanish word

“si” (R. 48). The hand written “si” was dotted; it was not

printed in Capital Letters as set forth in the official ballot

(R. 18). In Spanish, a handwritten “si” with a dot over the “i”

means “if’’ and not “yes”; “yes” in Spanish has to be written

with an accent such as “‘s1”, (R. 24-25).

The two ballots in question were counted as Votes for the

Union by BEVERLY JOHNSON, a staff member of NLRB

(R. 19-20). Before the election, BEVERLY JOHNSON admit-

ted that she did not understand Spanish (R. 26). During the

counting of the ballots the Company objected to BEVERLY

JOHNSON counting the two questioned ballots as affirmative

ballots cast for the Union, and noted at the bottom of the

official Tally of Ballots that formal objections to the Tally

would be filed later (R. 19).

6 Herein referred to as the “Union.”

FN es i ee i

The NLRB tally of votes show that:

1. Approximate number of eligible voters 22

2. Void ballots 0

3. Votes cast for PETITIONER 13

oi eet oe ge

6. Votes cast against participating labor

organization(s) u

7. Valid votes counted 22

(R. 19).

OBJECTIONS TO TALLY OF BALLOTS AT ELEC- |

TION were filed by the Company on September 1976, (R. 21)

on the following grounds:

i. The mark “si” in Spanish does not mean “yes” but

rather “if when it is written with a dot as was written in

the two (2) ballots in question... .. .

2. The markings, “si” clearly identify the voters as

Spanish Speaking, and therefore destroy the “SECRECY”

of the ballot that is mandated by the NATIONAL LABOR

RELATIONS ACT. (R. 21-22).

On September 29, 1976 the Regional Director of NLRB

made a finding of fact in SUPPLEMENTAL DECISION AND

CERTIFICATION OF REPRESENTATIVE that “the word

“si” printed in the square designated for “yes” votes indicates a

clear choice for union representation.” (R. 48)

Based on said finding of fact in the representation proceed-

ing, the NLRB concluded in the Unfair Labor Practice case

that:

“4. Since September 29, 1976 the above-named labor

organization has been and now is the certified exclusive

representative of all employees in the aforesaid appropri-

ate unit for the purpose of collective bargaining within the

meaning of Section 9(a) of the Act.”

and entered its order thereon that is sought to be enforced

herein. (R. 119-120)

The Company raised the same issues in REQUEST FOR

REVIEW OF SUPPLEMENTAL DECISION OF REGIONAL

DIRECTOR AND CERTIFICATION OF REPRESENTA-

TIVE (R. 51 at 53-54); and in ANSWER TO COMPLAINT

(R. 67 at 68); and in OBJECTIONS TO MOTION FOR

SUMMARY JUDGMENT (R. 86 at 88-90).

(1) Unfair Labor Charges.

On October 8, 1976 the Company filed REQUEST FOR

REVIEW OF SUPPLEMENTAL DECISION OF REGIONAL

DIRECTOR AND CERTIFICATION OF REPRESENTA-

TIVE on the grounds that:

(1) That the regional director’s decision of a substan-

tial factual issue is clearly erroneous on the record and

such error prejudicially affects the rights of a party.

(2) That a substantial question of law or policy is

raised because of, (a) the absence of, or (b) a departure

from, officially reported Board precedent. (R. 51)

The text of said request clearly sets forth the substantial

factual issue of the finding by the Regional Director of a

“majority of emplo 2es in the unit” as determined by the

counting of the two questioned ballots that had “si” written in

the “YES” box (R. 53-54).

Said Request for Review on the grounds of substantial

questions of fact and law and policy was denied by the Board

(R. 60).

On January 8, 1977 the Union filed an Unfair Labor

Practice charge based on the failure of the Company to bargain

(R. 61).

General Counsel for NLRB filed the complaint (R. 62)

which the Company answered (R. 67) raising the same issues

listed above. MOTION FOR SUMMARY JUDGMENT was

granted without hearing (R. 111). The company filed its

7 . ° "a

;

OBJECTIONS TO MOTION FOR SUMMARY JUDGMENT

setting forth the above issues and the continual refusal of the

NLRB to review them. No hearing was ever granted on these

issues by the Board.

REASONS FOR GRANTING THIS WRIT

1. First Question Presented

The question of what standards for a “True Translation”

should apply to translations from the English language to other

languages, such as Spanish, and from other languages, such as

Spanish, to English in judicial and administrative proceedings

have never been decided by this court. This issue is presented

clearly and simply in this case and affects more than the parties

to this proceeding. Vast portions of the population of the

United States of America are now non-English speaking and

need accurate translations in judicial and administrative pro-

ceedings, if those proceedings are to conform to our standards

of Evidence and Due Process.

Section 10(b) of the NLRB amended provides that, so far

as practicable, unfair labor practice proceedings shall be con-

ducted in accordance with the rules of evidence applicable in

the district courts of the United States.

Federal Rule of Evidence Section 604 provides that: “An

interpreter is subject to the provisions of these rules

relating to qualification as an expert and the administration

of an oath or affirmation that he will make a true

translation.”

The whole election results are in question because “SI”

translated has no meaning without a dot or accent mark.

The only person qualified to translate Spanish in the record

of the Representation Proceeding is ANITA L. CASTEL-

LANOS (R. 24). NLRB staff member BEVERLY JOHNSON

who tallied the votes disqualified herself as a Spanish Inter-

preter before the election was held (R. 26).

we manera thesia

The only evidence in the record of a “true translation

under oath by a qualified interpreter is that of ANITA L.

CASTELLANOS. She certified that “si” when written with a

dot over the “i” means “if” and not “tyes”.

To interpret “si” otherwise is not a true translation of the

Spanish word “si” which is required by Federal Rules of

Evidence Section 604.

The United States Supreme Court has held that the

determination of whether a majority of employees in a unit has

indicated representation by a Union, be made in accordance

with such formal (emphasis added) rules or procedure as the

Board may find necessary to adopt in the sound exercise of its

discretion. NLRB v. TOWER CO., 329 US. 324, 333, 91 L.Ed.

322, 328. To date the Board has not adopted any formal rules

with regards to “marked ballots” nor has the Board in the

present case cited us to any such formal rule.

2. Second Question Presented

(a) Substantive Due Process

The fifth amendment to the United States Constitution

would seem to require that a record of evidence be without

ambiguity where translations to and from the English Language

are involved. More than just a resemblance to the meaning of

the. English must be demonstrated. It must convey the true

meaning and not a similarity of meaning to be a basis for the

determination of rights and duties to follow from the evidence

presented to a judicial tribunal or an administrative tribunal.

Without this standard of a true translation, the judicial or

administrative proceeding becomes a farce.

(b) Procedural Due Process

A fair hearing is required.

“DUE PROCESS” CLAUSE OF THE 14th AMEND-

MENT OF THE UNITED STATES CONSTITUTION

REQUIRES A FAIR HEARING WHERE THE EM-

PLOYER CHALLENGES THE RESULTS OF AN

ELECTION.

oe! EES aN a es OS

In NLRB v. ORTRONIX, INC. 380 F.2d 737 (C.A. 5), the

court held that an NLRB hearing is necessary and indispensible

if an employer challenges the results of an election since the

employer can meet ‘is burden of showing the election was

unfairly conducted only through the presentation of evidence in

support of his charges.

The court stated:

“In our view there exist numerous substantial and material

issues of fact. . . which call for a formal hearing and the

failure of the Board to provide one was a denial of

procedura! due process.”

The court cited its own UNITED STATES RUBBER COM-

PANY vy. NLRB, 373 F.2d 602 (C.A. 5) in support of its

holding.

In NLRB v. BATA SHOE CO., 377 F.2d 821 (C.A. 4), the

court held:

“To borrow the words of Judge Brown, writing for the

Fifth Circuit, ‘it is clear that Section 8(a)(5) orders which

rest on crucial factual determinations, made after ex parte

investigations, and without a hearing cannot stand.’ NLRB

v. AIR CONTROL PRODS. of ST. PERTERSBURG,

INC., 335 F.2d 245, 249, (C.A. 5, 1964).”

The court in the BATA case supra went on to define what were

substantial and material factual issues raised so as to necessitate

a hearing:

“The determination however, of whether substantial and

material factual issues have been raised so as to necessitate

a hearing is a question of law and ultimately a question for

the courts.”

citing UNITED STATES RUBBER CO. v. NLRB, supra,

NLRB v. SUN DRUG CO., 359 F.2d 408, NLRB v. IDEAL

LAUNDRY & DRY CLEANING CO., 330 F.2d 712, NLRB v.

JOCLIN MFG. CO., 134 F.2d 627, and NLRB v. POINSETT

LUMBER MFG. 221 F.2d 121.

In discussing the need for a hearing the court stated at

page 826 in the BATA case, supra:

“A hearing is unnecessary, therefore, where if all the facts

contended for by the objecting party were credited no

ground is shown which would warrant setting aside the

election. NLRB v. AIR CONTROL PRODS. OF ST.

PETERSBURG, INC., supra; accord NLRB v. SUN

DRUG CO., supra; NLRB v. WILKENING MFG. CO., 207

F2d 98, 100.”

In the instant case, it would appear that if the contention of

the Company were all credited on each of the grounds sepa-

rately stated, there would be grounds for setting aside the

election on each of those grounds:

FIRST: If the intent of the two persons who wrote “si” in

the box for marking an “X” for the Union Representation, was

to write “if’’ as the literal meaning of the Spanish word “si”

means, and not “yes”, which is written in Spanish with an

accent as “si”, then under Section 9(c) of the National Labor

Relations Act the union did not receive more than one vote of

the majority of the votes cast as required by the National Labor

Relations Act. In this case, the union would receive only 11

votes which would not be enough under the rules and statute

requiring one more than majority. In this case there were 22

votes cast, and a majority would be eleven, but the Board Rules

require one more, to wit: Twelve (12) votes.

SECOND The whole ballot is in question because 11 of

those who were voting marked the ballot in the YES-“SI” Box.

The facts show that 15 of the 22 employees voting were Spanish

speaking. The ambiguity in the mistranslation of the English

word “YES” leaves in doubt the intent or meaning of the

employees who are spanish speaking who marked an X in the

YES-“SI” box. Did they mean “yes” or did they mean “if”?

CONCLUSION

This court has never interpreted what is meant by a “true

translation” by the Federal Rules of Evidence. This case

presents clearly and simply the issue that effects a large

minority of the population of the United States. Those who do

not speak nor understand the English language. It clearly

presents to the Court an opportunity to not only clarify the

Federal Rules of Evidence as it effects this large minority in

daily judicial and administrative proceedings but also give

meaning to the due process clause of the Fifth and Fourteenth

amendments where translations to and from the English lan-

guage are involved in the courts and administrative agencies of

the United States of America.

| |

‘ Respectfully submitted.

: CASTELLANOS & O’NEILL

;

3 BY:

FRANCIS J. O'NEILL, Esq.

4 Attorneys for Petitioner

: MetRO TRUCK Bopy, INc.

: CASTELLANOS & O'NEILL

; Attorneys at Law

1346 Wilshire Boulevard

Los Angeles, California 90017

Telephone: (213) 484-1772

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.