Appendix — Neuhoff Bros. Packers, Inc. v. National Labor Relations Board

Supreme Court brief1967

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_., APPENDIX A |

; Sec. 10(b), Labor Management Relations Act

PREVENTION OF UNFAIR LABOR PRACTICES

(b). Whenever it is charged that any person has engaged

in or is engaging in any such unfair labor practice, the .

‘Board, or any agent or agency designated by the Board .

for such purposes, shall have power to issue and cause to

be served upon such person a complaint stating the charges -

in that respect, and containing a notice of hearing before the

Board or a member thereof, or before a designated agent or |

agency, at a place therein fixed, not less than five days after .

the serving of said complaint: Provided, That no complaint

shall issue based upon any unfair labor practice occurring

more than six months prior to the filing of the charge with

the Board and the service of a copy thereof upon the person

against whom such ‘charge is made, unless the person ag-

grieved thereby was prevented from filing such charge by

reason of service in the armed forces, in which event the.

‘six-month period shall be computed from the day of his

-’ discharge. Any such complaint may be amended by =

- member, agent, or agency conducting the hearing or

eso Gene a eu Gan pl «tn teen

an order based thereon. The person so complained of shall

have the right to file an answer to the original or amended

complaint and to appear in person or otherwise and give

testimony at the place and time fixed in the complaint. In

’ the discretion of the member, agent, or agency conducting

“the hearing or the Board, any other person may be allowed

to intervene in the said hineieaie and to prone testimony.

P 4 -

eae het SE al Siti hl ty th gM N.” Sectd aa

. ‘

Any such proceeding shall, so far as practicable, be con-

“A2

ducted in accordance with the rules of evidence applicable

. in the district Courts of the United States under the rules

of civil procedure for the district courts of the United States,

adopted by the Supreme Court of the United States pur-

suant to the Act of June 19, 1984 ial title 28, secs.

723-B, 723-C). |

Sec. 5, Administrative Procedure Act .

§ 1004. Adjudications é

In every case of adjudication required by statute to be

_ determined on the record after opportunity for an agency

hearing, except to the extent that there is involved (1) any

matter subject to a subsequent trial of the: law and the

facts de novo in any court; (2) the selection or tenure of

an officer or employee of the United States other than

examiners appointed pursuant to section 1010 of this title;

(3) proceedings in which decisions rest solely on inspec-

tions, tests, or elections; (4) the conduct of military, naval

or foreign functions; (5) cases in which an agency is acting | -

as an agent for a court; and (6) the certification of employee

representatives— - o

_ Netice of hearing and issues

(a) Persons entitled to notice of an agency hearing shall —

be timely informed of (1) the time, place, and nature

thereof; (2) the legal authority and jurisdiction under

which the hearing is to be held; and (3) the matters of fact

. ‘and law asserted. In instances in which private persoris are

the moving parties, on ee eo cree ome

- f

/ } AS

give ‘prompt notice of issues controverted in aot or iene

“and in other instances agencies may. by rule require re-

sponsive pleading. In fixing the times and ‘places for hear-

ings, due regard shall be had for the convenience and neces-

sity of the parties or their representatives. x

Procedure‘

(b) The agéncy shall afford al inbimeated parties oppor- .

tunity for (1) the submission and consideration of facts,

- ts, offers of settlement, or proposals of adjustment 7

where time, the nature of the proceeding, and the public in-

terest permit, and (2) to the extent that the parties are

unable so to determine any controversy by consent, hearing,

and decision upon notice and in enn with sections

1006 and 1007 of this title.

- Authority aia functions of officers and employees

evidence pursuant to section 1006 of this title shall make

the recommended decision or (initial decision required by _

section 1007 of this title except where such offiters. become

unavailable to the agency. Save to the extent required for

the disposition of ex parte matters as authorized by law, *

no such officer shall-consult any person or party on ariy

fact in issue unless upon notice and opportunity for all

' parties to participate; nor shall such Officer be responsible

‘to or subject to the ‘supervision or direction of any officer,

‘ employee, or agent engaged in the performance‘of investi-

gative or prosecuting functions for any agency. No officer, |

ethployee, or agent engaged in the performance of investiga-

A-4

_tive or prosecuting functions for any agency: in any’ case

shall, in that or a factually related case, participate or ad-

_ Vise in the decision, recommended decision, or agency review

_ pursuant to section 1007 of this title ¢ as witness or

counsel in public proceedings. This subsection shall not

apply in determining applications for initial licenses or to

. proceedings involving the validity or application of ‘ rates,

ee facilities, or practices of public utilities or carriers; nor shall

| it be applicable in any manner to the agency.or any member.

SO Ee ee ere ee ee

eis “Declaratory orders

(@) The’ agency is authorized in its sound discretion,

with like effect as in the case of other orders, to issue a

declaratory order to terminate a controversy or remove un-

certainty. June 11, 1946, c. 324, § 5, 60 Stat. 239. -°

: Bl

: APPENDIX B

In the

"United States Court of Appeals

- FOR THE FIFTH CIRCUIT =

oe No, 22917 g

NegvuHorr. Bros. Packers, INc.,

LY ‘Namonat LABOR RELATIONS. Boanp, 7

Sai , Respondent.

- Petition for Reviéw of an Order of the National Labor

Relations Board Sitting at Washington, ™ C.

(June 17, 1966.)

Before TUTTLE, Chief Judge, RIVES, Circuit 5 Judes, and

: ‘CHOATE, District Judge.

TUTTLE, Chief Judge: ‘This is a petition brought by

the company to set aSide an order of the National Labor

Relations Board and a cross-petition by the Board for en- .

forcement. The Board, affirming’ the trial examiner’s de-

cision, found that the company had violated Sections 8(a)

ae ter oh a a a.

Petitioner,

TIO ta Ae ee ee ey

. limited to “all produ

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5 and 1 of the Act, by refusing to bargain with a certified

union, following «representation proceedings which are Loa

subject of attack by the were.

On July 2728, 1964, a. hearing was held on the union’s

| representation petition, requesting: certification, for a unit,

ie ig and maintenance employees of _

the company’s, Dallas plant, located at 2821 Alamo Street.”

On August 28, 1964, based upon the facts adduced in this. .

hearing, the Regional Directot issued a-decision and diréc-

tion of election, finding an | appropriate unit consisting of

- “all produttion and maintenance eaten at .the em-

ployer’s Alamo ‘Street plant and its hotel and restaurant

department~Wood Street plant: {also in Dallas] * * * in.”

_ cluding porters and intga-plant tritck drivers’. but exclud-_

ing intér-wlia entployees in the feed ‘lot. department [at |

ilford, Texas] and certain other truck” ‘drivers. Peti- ©

. tioners request for review of the Regional Director’s.action

was denied by, the Board, since’ it allegedly ‘ “raised ” ne.

‘substantial issues warranting review.” a

Pursuant to the Regional Director's order, an election

was “conducted on “September 22, 1964, resulting in 315

votes being cast for the union, 347 against and 43 challenged

” hpallots. The union filed objection to the following employer

conduct, allegedly affecting the outcome of the election:

oe Certain pre-election conduct including the following, :

“ “By questioning the employees about how they were. going ~ )

- to vote;” [ii] the manner in which the. company prevented

three alleged employees from voting by denying them, access -

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to the grounds of the company, where the balloting was

taking place. Finding that the company had engaged in

“conduct reasonably calculated to interfere with a free

choice ‘in the election,” .the Regional Director, on January

12, 1965, set the election aside. The company ’s request for

review of this order was denied by the Board.

The Regional ‘Director then ordered “a second election,

which - was held on February 18,’1965, at a public park

near the Alamo Street plant, the reason being given that

the company had previously refused to permit employees

allegedly: entitled to cast challenged ballots to enter its

premises. This election resulted in 388 votes for the union,

295 against and 58 challenged votes. During this election, —

Board agents who were conducting ‘it refused to allow 13

employees, whose ineligible (supervisory) status had been _

“established” by the Regional: Director after the first elec-

tion, to vote. However, these agents permitted two other

employees, previously found ineligible, to ‘cast challenged

ballots, after questioning revealed that the duties of these

two employees had changed. While the polls were still opén,

the company requested that the Regional Director allow the

13 “supervisory” employees at least to cast — |

ballots. This request was denied.

Subsequently, the company filed a timely’ aed to

the second election, alleging that certain conduct of the

“Board agents in the presence of voting employees indicated

; that the Board favored the union in the election. ‘The.

Regional Director found this contention to be without

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merit and also found that the 13 employees denied ballots

had previously been found to be supervisors and were

thus properly excluded from the unit. Based upon these

findings, he certified the union as the representative. of

the employees in the appropriate unit. The company’s re-

quest for a review of this latter decision was denied by

the Board as — no substantial issues warranting re-

view. 7

li Sei ie clay aclight 66 Geka with the cone

pany; it then filed charges and the complaint in the instant

case issued:. After the company answered, the general counsel

moved for judgment on the pleadings. The trial examiner,

issued an order: to show cause directing the company to in-

dicate the factual issues it intended to: raise. Upon con-

sideration of the company’s response, the examiner con-

cluded that no factual hearing was required and determined

_ the issues of law in favor of the general counsel. _

In view of the state of the record (in effect, the ion

of summary judgment), we must assume that for the Board

to prevail, any factual issues that may have properly been

rdised before the Board, are to be viewed most strongly

from the standpoint of company, with the exception of

the issue as to. the appropriateness of the bargaining unit. As

to this, there was a hearing and resolution of the issue by

the Director. — 3 3 |

In light of the “large 1 measure of informed discretion”

committed to ‘the Board in this area of fixing appropriate

ynits,” Packard Co., v. NLRB, 330 U. S. 485, 491, we con-

7] :

B-5 .

: cae that the Board’s determination that the unit actu-

ally designated was an appropriate unit even though some

other unit might also have been properly designated, must

_ be affirmed. . :

The two grounds for ie aside the first ‘diictie were:

(1) the company prevented three persons from entering

its premises to cast ballots, and (2) in the period between

the filing of the petition and the election, supervisory

employees interviewed individual employees, sometimes at

places away from their work stations, urging them to vote

against the union.

We deal first with thé action of the company in. n' turning

away from the gate three “employees.” It is not disputed

- that the desirable atmosphere surrounding holding of such

an election is what has been described as “laboratory con-

, ditions.” See NLRB v. Houston Chronicle Publishing Com-

pany, 5th Cir.,'300°F. 2d 273, 278. It is against this back-

ground that we test the undisputed facts relating to the

denial of access of the three persons to the company’s

premises. Since there was no resolution of any disputed

issues, we must assume the facts to be as stated by the

affidavit. of Joe Boyd Neuhoff, an employee of the peti-

tioner who was stationed at the main’ gate of the plant

with instructions to not allow unauthorized persons on the

premises during the hours of the eleetion, .

The Regional Director’s notice of election described those

eligible to vote as those of the unit “who were employed

during the payroll period’éndingAugust 27, 1964.” It further

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provided that “employees who have quit or been discharged

for cause since the designated payroll period * * * and who

have not been rehired or reinstated prior to the date of

the election, ‘shall not be eligible to. vote.” Neuhoff had a.

list of the persons who were. identified as being’ on the

_ payroll.for the period ending August 27th. This affidavit

’~ stated that three former employees of the company,’ ac-

* companied by two labor organizers, sought to come on to

the property and go to the polling place, stationed some

120 feet from ‘the main gate, claiming the right to cast their

ballots. Stating that this group ‘ in obvicus view of every-

one, began to march into the plant through the front ga

Mr. Neuhoff said that*he met the group in the middle of

the ‘gate and told them in a normal tone of voice ‘that they

could not come in to the plant because their names were

_ not on the voting eligibility list. Mr. Neuhoff stated that

one of the organizers yelled in a loud voice to Mr. Boyd

of the National Labor Relations Board, who was walking

across the parking lot, and complained to Mr. Boyd, who

then left, after having said nothing. He stated that the or-

ganizer, in an angry voice, stated “that he was going to get

'. a court order and the response was that he should go ahead

and get the order. The three workers remained in the middle.

of the gate and listened to the conversation.

In his decision; the examiner concluded that the three -.

‘ _o should have’ been permitted to cast challenged ballots,

‘Two of these had filed unfair labor practice discharge charges

with the Board, and the ‘third later filed a similar charge. The

Board su ently upheld the contention of one of these three,

finding that he had been discriminatorily discharged and ordered

his reinstatement. The other two charges were dismissed. -

’ B-7

and set the election aside, “not because the’ ballots were

Sufficient in ‘number to have effected the outcome (they

were not), but because in excluding potential voters from ‘

the: premises. and not letting them cast challenged ballots,

_ the company Violated section 8(a) 1 of the Act (citing

Macon Textiles, Inc., 80 NLRB 1525, 1549-1550,) thereby

invalidating the election (citing Dal-Tex Optical Co., 137

NLRB 1782, 1786-1787).” After so stating, the Regional

Director. added “neither can it be said that the above

activity [excluding the potential voters] was isolated, as

the action-was taken in the presence ‘of other voters and in

an area clearly visible to employees on their way to vote. ”

As this court said in National Labor Relations Board v.*

Huntsville Manufacturing Company, 5th Cir., 208 F. 2d

430, “Congress entrusted to the Board the control of the

election proceedings and the determination of - the steps

necessary to conduct an election. NLRB .v. Waterman, 309

U.S. 206; 60 S. Ct. 493, 84 L. Ed. 704; Inland Empire Ditrict -

Council, etc. v., Millis, 325. U.S. 697, 65 S, Ct. 1316, 89 L.

- Ed. 1877. It was primarily for the Board to determine

whether the election was fairly conducted or was unfairly

conducted and should be set aside.” 203 F. 2d 430, 434.

We conclude that the Board here conformed “to the standard

of a reasonableness which courts may exact of the Board

in the exercise of the discretion accorded it in determining .

‘whether or not the election should be set aside for ir-

regularities in procedure.’” NLRB v. Huntsville Manufac-

——:

« .

SORT DLT LEIS SSIES, MILES LOE A LENT LE BRET IT

PORE SL ALRITE EOL NEE ION OOD RIT NEALE RE TENG OK RES Ce

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turing Co., supra, p, 434. We should therefore not upset"

the Board’s determination that this first election should be

set aside. : : oe

The. Board having concluded that the conduct of the

company by having its representative at the gate who _

turned the workers away “in an area clearly visible to.

employees on their way to ‘vote” was such as to destroy

- the “laboratory conditions” desirable for the conduct of a

Board election, it is not necessary for us to consider the

‘second issue, touching on the findings that company super-

visory employees had questioned employees during the pre- .

- elettion period. If there are questions: of fact as to this

issue which were resolved only ex parte; and are thus subject

to attack, it is not necessary that these questions be re-

solved in the circumstances now present. |

We come next to the contention of the otitiones that

the second election was invalid becatise thirteen members

who fell within the category of employees during the pay-

roll: period ending August 27, 1964, were not permitted to

vote, even by casting challenged ballots, because the Director

" ascertained that they had theretofore been found to be

supervisory employees. “As the Board points out, even if all

thirteen of these persons had been permitted to vote and

had voted against the union, this could not have affected _

the result. The question therefore is whether the denial by ~-

the Board’s agents of their request to cast challenged ballots

. can be equated with the conduct of the company employee

Neuhoff. in turning away the three employees at the time

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| 7 B-9

of the first election. Again, bearing in mind the degree of

- discretion which is necessarily lodged in the’ Board" with

respect # determining the fairness of elections, it can be

readily seen that there’ is a substantial distinction between.

. What happened at the first election and what happened on

the second. It was.the Board representative conducting the

election who, when the thirteen presented themselves, de-

clined to permit them to cast ballots. ‘This was the act of

an impartial Board representative, charged by law with the.

duty of running a fair election, who, having been informed by

the Director that these men were supervisors and thus

not eligible, declined to permit them to vote. While, of.

course, biased conduct by such Board representatives that

would destroy the desired “laboratory conditions,” would

also be a proper basis for setting aside an election, here

there is no charge of any fact from which a fact finder

could determine that the manner in which the request to

vote was turned down could prejudice or deter others of

the employees from casting their ballots as they. saw fit.

‘We are constrained, therefore, to accept the determination

by the Board that the simple conduct of the Board agents _

in declining the right of these thirteen individuals to cast

a ballot oe 1s eee 9 OE that in any way —

prejudiced the election.

hg ide a te Sas We i al he ns «|

individuals would not have affected the results, it” there-

fore becomes unnecessary to determine the correctness of

the determination that they were, in fact, supervisors. The

. petitioner seriously challenges this determination, asserting

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that no factual detinililinathon. with an opportunity to be

fully heard, has been afforded the petitioner on this matter.

The Board responds that the failure te have a hearing on

any truly contested facts in this regard was the fault of the

petitioner in not adequately asserting facts to substantiate _

such a charge in its effort to obtain a review before the

Board. We do. not need to determine whether, in fact, the

ex parte. findings, here could be supported on the Record as

made if this were a critical issue, because, as we have pointed ©

out, it is of no importance to ascertain the correctness

vel non of the Director’s finding that they were supervisors. .

It is the effect of their challenge that is alleged by the peti-

tioner to have the effect of vitiating the second election.

Since this challenge is not valid, we need not ascertain

whether, if the finding were crucial, it could stand in light

of the procedural posture of ‘the case.

This case is not without difficulty. The Board ascer-

tained that conduct of the respondent denying access to

the voting place by three persons who claimed the right

to cast ballots (which right was later vindicated as to one),

such conduct being in view of other employees, destroyed

the “laboratory conditions” desirable for the conduct of |

the election and’ thus set aside an election which:had been _

otherwise clearly won by the. company; thereafter, at a ‘

second election, which otherwise was overwhelmingly won |

by the union, the Board agents at the voting ‘place de-

*clined to permit thirteen persons, found ex. parte‘ by, the

"B-ll

_” Dieotne fhe euperviaors, to cast votes: ‘The Board de-

clined to find that thie ciscumstance destzoyed. the “lab-

oratory conditions.” —

aceasta a ee we con-

clude”that there is a valid basis for distinguishing the two

' sets of circumstances because of the self-help exercised

by the employer in the first instance. Furthermore, the

overwhelming vote cast in the second election in favor of

the bargaining agent adds weight to the argument that an

P Se eee

eisarcurine: by the Board.

‘The an wil be ENFORCED. | Te

SS BES EEE INS IF

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; - United States Court of Appeals.

_ FOR. THE FIFTH CIRCUIT

' No. 22917

' Nevnorr. Brorners, Packers, INc., | \.

: or Petitioner,

Vv. \

Nammowa Laos RezaTions Boar, ©

Respondent.

DECREE

Before: Tuttle, Chief Judge, Rives, Circuit Sate, and

Choate, ‘District Judge. . |

THIS CAUSE came on to be heard’ upon the petition of

Neuhoff Brothers, Packers, Inc. to review and set.aside an.

order of the. National Labor Relations Board issued against

‘ petitioner on August 12, 1965, and ‘upon the cross-petition

+ of the Board for enforcement of said order, The Court heard _

~ argument of respective counsel on May 17, 1966, and has —

considered the briefs and the transcript of record filed in

this cause. On June 17, 1966, the Court being fully advised

in the premises, handed down its decision granting enforce-

ment of the Board's order. Tn conformity therewith, it is

hereby |

ORDERED, ADJUDGED AND DECREED that the or-

der of the National Labor Relations Board, dated August 17, ” P

~~,

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1965, directed against Petitioner, its officers, agents, succes-

* sors; and assigns be enforced, and that Neuhoff Brothers,

‘Packers, Ine., Dallas, Texas, its officers, agents, successors,

and assigns abide by and, perform the direction of the Board

in said order contained.

ENTERED: ne : ce

T LEOEE ML SLT REIMER IP PE

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+ ..» In the

- United States Court of ‘Appeals

_ FOR THE FIFTH CIRCUIT

eg ey

“\- ; : ° ‘ _ | 7 :

NEvHOFF BROTHERS, PACKERS, inc, |

Appellants,

. \ ae re UE _ Namowat Lapor RELATIONS Boao, eo ase

A? 4 oe | eee ia a.

a On Petition. for Review of an Order of the National Labor

ype. Thee | ‘Relations Board ag at Washington, D.C.

(NOVEMBER 16, 1966) Jt

1 ON PETITION FOR REHEARING hae

“~\) Before TUTTLE; Chief Judge, RIVES, Circuit Judge, and

de -. CHOATE, District Judge.

: PER CURIAM:

- a "PP IS ORDERED that the petition for rehearing filed in |

the above styled and nuribered. cause be, and the sume is, « ~

, hesby DENIED.

APPENDIX C

NATIONAL Lasor RELATIONS Boarp,

: : _ Petitioner,

a *

Ponesrr LUMBER & MANUFACTURING CoMPANy,

Respondent.

a er No. 6921

PER CURIAM. ©

_ This is a petition to ulate an order of the National

Labor. Relations Board finding the Poinsett Lumber and

Manufacturing - Company guilty of unfair labor practices |

“based upon a finding of refusal to bargain and one instance .

_° of an alleged, threat made to a union emiployee because of

union membership, ‘The refusal to bargain is admitted, but

the company claims that the union certified as bargaining |

- agent does not represent a majority of employees in the

bargaining unit..An election was conducted under the super-

vision of the Board but the union received a majority of only — |

“a very few yotes and the company contends that the result

was achieved as the result of threats and pressure. exerted

on behalf of the union. The company duly filed objections |

; to the election, raising substantial questions as to threats .

| and intimidation and asking a hearing with regard. thereto.

Insteac. of ordering ‘a hearing, the Board, acting upon the

' yéport of investigation by its Regional Director, certified -

ats baie a ii ah Sh ad

“6-2

the union as bargaining representative notwithstanding the

exceptions of the company thereto and its request for a hear-

ing again made. On. the hearing in the unfair labor practice’

proceeding, the company offered evidence of the threats and

coercion upon which it relied, but this was excluded by the

The rules and regulations of the National Labor Relations

Board: clearly coriteniplate that a hearing shall be granted —

when substantial questions are raised as to the validity of

an election. Section 102.61 of the regulations provides, in

part: |

“If exceptions are filed, either to the report.on-chal- , -

lenged ballots, objections, or both if it be a consolidated

’ report, and it appears to thé Board that. such exceptions.

do not raise substantial and material issues with respect

to the conduct or results of the election, the Board may

decide the matter forthwith upon the record, or may

make other disposition of the case. If it appears to the

Board that such exceptions raise substantial and ma-

terial factual issues, the Board may direct the regional

director or other agent of the Board to issue and cause

to be served upon the parties, a notice of hearing on

said exceptions before a hearing officer. The hearing

shall be conducted in accordance with the provisions

of sections 102.5u, 102.57, and 102.58, insofar as appli-

_ cable. Upon the close of the hearing, the agent con-

, ducting the hearing, if directed by the Board, shall

prepare and cause to be-served upon the parties a re-

port ‘resolving questions of credibility and<containing

findings of fact and recommendations %o.the Board, as”

to the disposition of the challenges or objections, or .

both, if it be a consolidated report.” -

[1] “If the Board had granted a hearing in accordance. |

with this rule, the evidence taken thereon would have been

C-3

sii a part of the record in the representation proceeding

and would have been before the Board in the unfair labor

practice hearing and before this court on the review of the

_Board’s action taken with respect thereto. 29 U.S.C.A. § 159

(d). The Board, however, did not grant a hearing to the

company but acted upon an investigation made by its Re-

gional Director at which’ the company was given.no oppor-

tunity to present the evidence upon which it relied in sup- |

port of the substantial questions which it had raised as to

the validity of the election by the exceptions which it had

filed thereto. The Board determined that the questions were

sy not substantial on the basis of the report filed by the Re-

gional Director without affording the company an oppor- —

tunity to be heard and without having before it the evidence

upon which the Regional Director had based his report.

Under such circumstances, we think that the company was’

entitled to present its evidence at the unfair labor practice

hearing before the Trial Examiner and that the order should ~

be set aside and the cause remanded ‘to the Board in order

that the evidence may be taken and considered by the oe

‘Board in passing upon the validity of the election.

[2-5] If a hearing had been held and the evidence had

been taken and passed upon by the Board in the represen-

tation proceeding, the Board would not be required to go

into the matter again in the absence of special circumstances

showing that it was in the interest, of justice that this be

done; but the evidence has not been taken nor a hearing

accorded the company at any time even though substantial

| questions affecting the validity of the election had unques- .

C4 :

tionably been raised by-its exceptions. We think that it is

. entitled to a hearing.at some stage of the proceedings so

that it may produce the evidence: upon which it relies for

consideration by the Board and for consideration by this

court in proceedings to enforce or set aside the Board’s or-

der.” As said by the Supreme Court in N. L. R. B. v. Indiana . °

; and Michigan Electric Co., 318 U.S. 9, 28, 63 S. oe

, 405, 87 L. Ed. 579: -

The Act accords a oon degree of finality to the

Board’s findings of fact, and this Court has been insist-

ent that the admonition of the Act be strictly observed.

But courts which are required upon a limited review to

lend their enforcement powers to the Board’s orders are

' granted some discretion to see that the hearings out -

of which the conclusive findings emanate do not shut

off a party’s right to produce evidence or conduct cross-

‘ ‘examination material to the issue. The statute demands -

respect for the juidgment of the Board as to what the

evidence proves. But the court is given discretion to see’

' that before a party’s rights are finally foreclosed his

case has been fairly heard. Findings cannot be said to

have been fairly reached unless material evidence which

might impeach, as well as thet wiich will support, its

findings, is heard and weighed.”

See also N. L. R. B. v. West Texas Utilities Cd, 5 Cir.,

214 F. 2d 732

, UIE ERNE NT

the finding of the Board that a threat was made is supported

‘by substantial evidence. The language relied on amounts to

“no more than an expression of opinion that if the employee

Jost his job he could not get employment in another mill in

- that area and he might not have a job long. If this language

C5 . . —

had been used on the eve of an election or during an or-

ganizational campaign it might well have been treated as a

threat; but the election was over at the time and no or-

ganizational campaign or other union activity was in prog- ©

ress,. It appears to be no more than idle conversation be-

tween employees of the company, and certainly is not of

- sufficient importance standing alone to’ ‘form me basis of a,

Board order. ;

The order of the Bead Wi’ eek atl cates cause

will be remanded to.the Board with direction to hear the

evidence offered by the company with cael to the hie

' of the election.

* Remanded: .

TTT RE NIN RAN t

4 See MIPS neem

OF CRE RIE YEP ETI MLR NII POI IM ALE TOM ONG OVE IIE ES TIN rs OLE AMER rit Ay

NATIONAL LABOR RELATIONS Boarp, ;

eee Petitioner,.

v. Boa:

THe Lorp BALTrmorE Press, INc.,

: 7 Respondent.

6 , ¢

No. 8416. :

United States Court of Appeals

. Fourth Circuit.

‘Argued Jan. 5, 1962.

Decided March 19, 1962.

Before SOPER, BRYAN and BELL, Circuit Yaiges.

_ ALBERT V. BRYAN, Circuit Judge.

The order of the National Labor Relations’ Board!

requiring The Lord Baltimore Press to bargain with Amal-

gamated Lithographers of America is here resisted, funda-

mentally, upon the assertion that. the election favoring the

union as the collective bargaining representative of Balti- _

more’s employees was unfairly conducted..The immediate

challenge is to the Board’s refusal to accord Baltimore a.

hearing: on its exceptions to the election.

We stay the order’s enforcement because. of tho I Board’s ~

denial of the hearing.” The election’s validity is thus made

a premature question, to await the outcome of the further

‘+ proceedings we order. =

3 National Labor Relations Act, §- 10(c), 29 U.S.C.A. § 160(c)..

_ *Id., § 10(e), 29 U.S.C.A. § 160(e). *

: ° . C-7 -

: On May’, Lovo aelien cimscll r shales, ti

. the supervision of the Board’s Regional Director, to ascer- |

tain whether a certain unit of its employees desired Amal-

gamated as its bargaining representative.’ The election was

held June 11, 1959 and the union.won. Next day Baltimore

hak teats We tan det ok: ek: seen: Chan alin

that it be set aside. Presently, potnm, the objections

stated that:

“(1)- During the period immediately prior to the

election Employer supervisory personnel engaged in

organizing and other activities on behalf of the Union,

by which employees were induced, coerced .and caused _

, to favor the Union, sign cards for the Union and vote

* for the Union, all of which was unknown to the Em- -

ployer until after the election.”

The supervisory personnel to which pain ref-

erence was one Creston E. Ford, the foreman of its litho-

graphic department. Following an ex parte investigation,

including in camera interviews with the witnesses of whom

_ it -was apprised by the ‘employer, the Regional Director

concluded that the objections should be overruled and —

Amalgamated certified as the exclusive representative of

the Baltimore employees. To this report Baltimore filed

exceptions. The Board denied them’ without a hearing,

thinking a hearing unwarranted and unsought, and accord-

__ ingly certified Amalgamated.

Thereafter, Beltimone declined 03 bargain with the union,

contending that its selection as the collective agent was in-

valid. At the union’s instance the Board issued a complaint

} . id, § 9(c) (1) and atc 29 U.S.C.A. § 159(c) (1) and (2).

Pn re.

STE RI, OE RATIO LE SI BE TNT MeN ae TR

PPR BY

gee

accusing Baltimore of: an unfair labor practice as defined in

§ 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (5),

(1). In the hearing on this complaint before the Examiner,

Baltimore proffered oral and documentary evidence purport-

ing to delineate the ‘activities of Ford. Quoting from the

offer made before the Examiner, the evidence it tendered

a would show that

.“He [Ford] said that he i the company had

os done and would do some dirty tricks’ to us and told

them to look at what they have done to me. Further, ;

- that Mg. Ford told employees under his supervision ‘you

fellows. better sign a card and send them .in’ under

circumstances in which it was perfectly clear that he

was talking about union cards which were the \only

cards being circulated in the plant at the time.

“Further, that Mr. Ford told witnesses under his

supervision that the plant superintendent was just a

hatchet man and the men had better get — and

‘get the union in. ~ :

“Further, that many ptimes and immediately - before

the election Mr. Ford stated to employees under his

. supervision ‘that. the plant wasn’t a family affair any

_ longer, that the men didn’t any longer have the security

~ they had before and that the fellows —_ to have

‘a union to protect themselves.”

This evidence the Examiner declined to heer. He was.

of the opinion that as the Board had already decided the

- dispute in the representation proceeding, the question was

no longer open., Whereupon’ on his recommendation the

Board entered the order it now seeks to enforce.

| With the. respondent Baltimore, we think it should have

__ been heard on its exceptions in the election proceeding.

C-9

» Indwelling, of course, was a request for a hearing upon --

them. The Board’s Rules and Regulations, Section 102.69,

allowed such a hearing. But we need not now enlarge on

the point because, in the absence of a hearing at that stage,

_ the employer should certainly have been accorded.a hear- . _

ing thereon in the complaint proceedings, and wé discuss

the point under ‘that head.

[1] ‘The Examiner and the Board clearly erred in reject-

ing the testimony when last offered. Ford’s activities—if

true—could not be lightly brushed off. The Board has

repeatedly declared, and again recognizes in its brief here,

that advocacy .of the union by a supervisor-employee, un-

known to the employer, is cause for annulment of the elec-

tion. Shovel Supply Co., 118 N.L.R.B. 315° (1957); Park-

chester Machine Corp., 72 N.L.R.B: $410 (1947); Robbins

_ Tire & Rubber Co.) 72 N.L.R.B. 157 (1947). Awareness by

Baltimore of Ford’s aiding of the union is not indicated

in the evidence. Entreaties and importunities of the, kind

here suggested were not permissible and protected— oa |

leged”—under 8(c) of the Act, 29 U.S.C. 158(c) as express-

ing only “* * * views, argument, or opinion * * *”, Nor

, would they necessarily be neutralized by the alleged oral

‘and written attempts of Baltimore to persuade the employ-

ees against unionization. It must be remembered that Ford

- truth the employer should have had an opportunity to pre-

. sent its side. |

eananmemlennees .

ee en ee oe Se

C-10

Baltimore’s strictures on the supervisor’s electioneering,

given increased countenance by a Show of proof, raised

“substantial and material factual issues”. Rules and Regula-

tions, supra, Sec. 102.69(d). Actually, the report of the

Regional Director in the election proceeding itself reflects

evidence of partisan remarks by Ford, particularly “that *

he. [Ford] knew that the Company had done some dirty

tricks to us, ‘look what they done to me’” and “the plant

. 3 superintendent was just a hatchet man”. age

Such words would come with particular. poe from Ford.

-He had once been a superintendent and only recently de-

~~—tnoted. His admonitions were directed to subordinates and

he talked from 37 years of experience with Baltimore: Just’

then the company was in a critical period,. passing from

a family proprietorship of 80 years to a new ownership, a

‘transition already creative of uneasiness among the em-.

_” ployees. Though away-on vacation from May 30 until June

9 (two days before the election), it is not clear esa as

absence erased his earlier campaigning. |

The right of the employer to the audience ofthe Board

in these circumstances was enjoined upon. the Board in

NLRB. v. Poinsett Lumber & Mfg. Co., 221.F. 2d 121.

(4 Cir. 1955) by this court with geectes language, as fol-

lows: ras es SOA tee

“Tf a hearing had been held and the evidence had

been taken and passed upon by the Board in the repre-

sentation proceeding, the Board would not be required

to go into the matter again in the absence of special .

circumstances showing that it was in the interest of

justice that this be aes but .the evidence has not

C-11

been ps a hearing accorded the company at any |

time even though substantial questions affecting the

- validity of the election had unquestionably been raised

_ by its exceptions. We think that it is entitled to a

\ hearing at some stage of the proceedings.so that it may

produce the evidence upon which it relies for considera-

- tion by the Board and for consideration by this court

in ca yeas to enforce or set aside the Board’s order.

on’

“Similar ickdites _— aie N.LR.B. e Tampa }

Crown Distributors Inc., 272: F., 2d 470 -(5 Cir. 1959);

_. NLRB. v. Dallas City Packing Co., 230 F. 2d 708 (5 Cir. _

1956); N.L.R.B. v. West Texas Utilities Co., 214 F. 2d 732

(5 Cir. 1954).

_ [2,3] Certification of the election did parE

it against review. Altogether interlocutory—just a step in the

enforcement proceeding—it was as a matter of law subject

to vacation or revision at any time before the trial of the

unfair labor practice complaint became final. Pittsburgh

Plate’ Glass Co. v. N. L. R. B., 313 US. 146, 162, 61 S. Ct.

, 908, 85 L. Ed. 1251 (1941). °

The onder ‘of the Bound: wilt bs eet aside with a direction:

to hear Baltimore’s evidence and a in objection

to the election, .

Order set aside and remanded. os

PP PARR EE BE NP OE

~~. GB.

_ NaTIoNaL Laszor RELATION? Boarp, :

, v ———~____ Petitioner,

a oe a. |

CAPITAL Bakers, INc., | |

: Respondent...

fo AT i

United States Court of Appeals -

Before HASTIE and FREEDMAN, Circuit Judges, and

WEBER, District Judge. -

WEBER, District Judge.

_ § 151 et seq. for. enforcement of its order dated . August

25, 1964. The Board found that respondent violated Section

/8(a) (5) and (1) of the Act by refusing to bargain with

the Union as, the duly elected and certified representative af

of its employees. This case involves one dut of four of re-_

spondent’s plants [Paxton Street plant, Harrisburg, Pa.]

upon which petitions. were heard on a consolidated ‘record

resulting in findings that: each was an appropriate bargain-_

ing unit, and directing that an election be held.

At the hearing on the petition. respondent contested the

appropriateness of the single plant unit. Respondent did not

. request the Board to review this finding. :

This case is before the Court on the petition of the Na-

tional Labor Relations Board pursuant to Section 10(e) of.

the Nationa! Labor Relations Act, as amended, 29 U.S.C.

a Gs

At the ‘iis of 62-ballots 31 favored the Union, 29

were opposed, and 2 ballots were challenged by the Union.

The Regional Director conducted an administrative investi-

gation, overruled one challenge and sustained one. The chal-

lenged ballot which was overruled. was not counted. because

it would not change the result, and the Union was accord-

ingly certified. Respondent aves a’ request for hearing at

this time. ;

A Request: for Review was filed by the cain with

tespect''to the sustained challenge on-the grounds that’ the

Regional Director had ‘denied respondent a’ hearing. with

respect to. the supervisory status of the challenged employee.

The Request for Review was denied without hearing.

The respondent refused to recognize or bargain with the

Union and an Unfair Labor Practive charge and hearing

followed. Here respondent contended that. the’ single plant

-unit was inappropriate but the Trial Examiner refused :to

pass .on this issue on the grounds that respondent’s failure

_ to seek a review of the original representation decision pre- .

cluded litigating this issue is) any subsequent unfair labor

| practice proceeding.’ Also, respondent sought to introduce ©

evidence on the alleged supervisory status of the challenged

employee. The Trial Examiner refused to pass on this issue |’

~ IN LEB. Rules and Regulations, Series 8, Sec. 102.67(f):

. “The parties may, at any time, waive their right to request

review. . Failure to request review shall preclude such parties

from relitigating, in any related subsequent unfair labor prac-

tice proceeding, any issue which was, or could have beén, raised

in the representation proceeding. Denial of a .request for re-

view shall constitute an affirmance of the regional director’s

action which shall also _—— relitigating any. such issues

in bax related subsequent unfair labor practice nntueall af

LORRI INE OPM RENEE ES

Peery whe ~—e

’ ”

C14

on the wy that Ge takes Board’s refusal of ieee

Review. of. this issue could not be relitigated under the

Board’s Rules. A detailed offer of. proof was made on the

record but was rejected by the Trial Examiner. Respondent’

also claimed that it was improperly denied a hearing on the

question of the alleged supervisory status of the challenged

ballot. The Trial Examiner rejected this contention on: the -

grounds that ‘it had been examined and rejected by the

Board on the Request for Review, and, absent newly discov-

ered evidence, the issue could not be relitigated in the com.

pt hearing.

‘This petition for enforcement followed. Respondent admits

that it has refused to recognize and bargain with the Union,

but asserts that the Labor Board’s findings and conclusions

that respondent violated the Act are not supported by sub-

_ stantial, material and valid evidence on the record-considered

as a whole, as required by the Act, and are erroneous as

a matter of law. Specifically, respondent contends that: _

: (1) The Board’s determination that the challenged

employee was supervisory. was made on the basis of an

exparte investigation and without granting a hearing

which deprived respondent and its employees of their

rights under law; and |

(2) The direction of an election in a single plant unit

was erroneous and contrary to the. —— of oe

National Labor Relations Act. —_..

a L

THE APPROPRIATE BARGAINING UNIT |

Z) - DETERMINATION. .

- Respondent argued that the determination of the appro-

‘Peinte bargaining: unit ier this caso was made by thip Labor

controlling.” 29 U.S.C. § 159(c) (5).

C-15

Board in violation of Section 9(c) (5) of a Act which

provides that:

_ “In determining whether a unit is appropriate. for’ the |

purposes specified in subsection (b) of this section the ex-.

tent to which the employees havo organized shell nd¢ ‘bo

In support of this argument respondent points to its his- -

‘tory of representation petitions. Respondent. operates six

bakery plants within an 85 mile radius of Harrisburg, Penn-- ©

sylvania. In 1956 and in 1960 the Board held that a unit of |

employees in a = plant ‘of ccna was not dppro-

priate, holding that:* ; _E.

“the high degree of integrated, panera and detailed

managerial $pntrol of labor relations policies for all the

plants, the interdependence of the plants in the’

‘ ployer’s- production-and- distribution system, jo —

larity of functions of all the production and maintenace

employees, and their uniform working conditions and

fringe benefits” (Joint Appendix ». 1366). 3

all compelled a conclusion that a. singie plant unit was not

appropriate. (Case No. 4—RC—4091). In, 1961, the parent |

- organization of the Union involved here agreed to and the af

Labor Board directed an election in a multi-plant unit of all

respondent’s plants, which the Union lost. In 1963 the Board

, reversed its 1960 position and directed an election in a

single plant unit in Williamsport on petition of a local of -

the Teamsters Union. A Request for Review of the unit

determination was denied, but the" Union lost the election.

Also in‘ 1963, af ed Poctolls plant, tp Bown creed »

if ae & PARITY

Sia konlint th Ladibti eh ielacaatascasiash isan

C-16

single plant oi usin for a Teamsters Union Saek ‘the

- respondent requested Review which was denied, and the

- Union lost the election.

The present proceeding grew “a of four single plant

representation petitions in 1963 for four of respondent’s

plants, and the determination by the Regional Director after

hearing, that each of said plants was’an appropriate unit for

} the production and maintenance employees. The respondent __

did not file a Request for Review of this determination, but _

filed its Request for Review on the supplemental determina-

tion of the Regional Director concerning the contested bal-

lots in the election. In this Request for Review respondent

stated that it was not abandoning its objection to the unit |

determination but it devoted its arguments to the challenged .

ballot issue. The Trial Examiner at the unfair labor prac-

tice hearing held that under-Sec.-102.67(f) of the Board’s —

Rules and Regulations the respondent’s failure to request

review of this finding precluded it from being raised at this

“time, in the absence of any evidence unavailable at the time

_. of the representation hearing. Respondent did ‘not seek to

introduce further testimony on the unit issue, but argued .

that the finding of a single plant unit was a reversal of prior |

determinations of -the Board without ‘proper justification.

Section 10 (e) of the National Libte Relations ‘Act

— a:

iene “So cieisllen that inn aok serene Velike the Beant.

‘its member, agent, or agency, shall be considered by the

- court, unless the failure or neglect to irge such objec- J

tion shall be excused because of extraordinary: circum-

ae oe en § 160(e). .

This has not only heen held to preclude judicial considers

! tion of issues not raised before the Board, N. L. R. B. v. Local

. 476, United Association of Journeymen of the Plumbing &

Pipefitting Industry, AFL-CIO, 368 U.S. 401, 402. (1962),

82S. Ct. 423; 7 L, Ed. 24.382; N. L. R.‘B. v. Ochoa

Fertilizer Corp., 368 U.S. 318, 322, 82 S. Ct. 344, 7 L. Ed. 2d.

312 (1961), but also to apply where an issue litigated before

3 the Trial Examiner has not been raised by a timely exception

= ‘to a determination of the Board by Request for Review.

| _N. L. R. B. v. Mooney. Aircraft, Inc.,_ 310 F. 2d 565, 566

(5th Cir., 1962); N. L. R. B. v .-Giugtina Bros. Lumber (o.,

" 258 F. 2d 371, 374 (9th Cir., 1958).

Petitioner argues that ‘to have raised the wit representa-

tion issue in 1963 in this case would have’ been futile in

____the face of adverse determinations in two cases within a few

~ months prior to the present case where respondent’s requests -

to review unit determinations had been refused by the Board.

[1] While technically respondent failed to request review

of the unit determination of the Regional Diregtor, respond-.

ent.did contest this issue at the representation hearing it re-

_ -served this question in its Request for Review of the post-

election report, it argued this issue before the Trial Exam-

iner at the unfair labor practice hearing. We feel that the

; respondent is not now barred from raising. this objection

before the Court since this has been his position from the in- ,

ception of the proceedings, and the Board-has been ade-

. quately appraised of his intention to rely on this. N. L. R. B.

y. Eastern Mass. St. Ry.. Co., 235 F. 2d 700, cert. den. 352

er 7 eee :

a te C18

US. 951, 77 S, Ct. 325, 1 L. Ed. 2d 242 (1st Cir. 1956);

N. L.'R..B. v. Revere Metal Art Co,,/280 F. 2d 96, cert...

den. 364 U.S. 84, 81 S. Ct: 225, 5 L. Hd. 2d 189 (And Cir.

‘ee | \

‘In fact, at the unfair labor practice hearing, the Trial.

Examiner specifically noted that respondent was precluded |

from court review of the representation case; -and that the

- appropriate means of testing the result was to take the

risk of refusing to bargain, and to challenge the finding in ’

the unfair labor practice complaint proceeding. That is what .. ~

.?espondent was trying. to do. The Trial Examiner added: .

“Certainly it is not my function to prevent Scand.

ent from adequately presenting its case in whatever -

forum is proper, and I do not so view my function.”.

Court ‘has decided the case of N. L. R. B. v. Metropolitan

Life Insurance Company, 380 ‘US. 438, 85 S. Ct. 1061, 13

‘L. Ed. 2d 951 (April 5, 1965).-This was a unit determina-

tion case (among a number of others from the various cir-

-quits) in which the Board by:a change of policy certified a

gingle office unit ofthe insurance company.4s an appropriate

unit. The Court of Appeals for the First Circuit refused to

enforce the Order on’ the grounds that because of the

Board’s failure to articulate specific reasons for its unit de-

termination, the Board’s apparently inconsistent determina-

tion of appropriate units of respondent’s employees in other

cities and regions, its failure to discuss what weight, if any,

it gave to the factor of the extent of unit organization, and

the fact that in these cases the Board consistently certified

o ° a

- C-19

din wait higteatal ey. the Unions ti Cniat could andy it

"clude that the Board had regarded the extent of Union or-

ganization. as controlling in, violation of the provisions of

Section 9(c) (5) of the Act. 327 F. 2d 906.

' Ona the Supreme Court held, ms, at page 442,

85S. , at page 1063:

“We agree with the Court of po that the enforc-

- ing court should not overlook or ignére an invasion of.

the § 9(c) (5) command. We further agree that in de-

termining whether or not there has been such an eva-

sion, the results in other recent decisions of the Board

are relevant. We cannot, however, agree that the only

possible conchayion here is that-the Board has violated ;

§ 9(c) (5).

* * *

On the other end, due to the. ita of articu-

_'» lated reasons for the decisions in and distinctions among. —

_/these cases, the Board’s action here cannot be properly

reviewed. When the Board so exercises the discretion -

given to it by Congress, it must ‘disclose the basis of

_ its order’ and ‘give clear indication that it has exer-

cised the discretion with which Congress has em-

powered it.’ Phelps Dodge Corp: v. National Labor Re-

‘lations Board, 313 U.S. 177, 197, 61 S.-Ct. 845, 854, 85

L. Ed: 1271. See Burlington Truck Lines v. United

- States, 371 U.S. 156, 167-169, 83 S. Ct. 239 245-246, 9

LL, Ed. 2d 207; Interstate Commerce Comm'n v. J-T

rt Co., 368 U.S. 81, 93, 82 S. Ct. 204, 211, 7

L. Ed. 2d 147. "Although Board counsel i in his brief and

‘argument before: this Court, lias rationalized the differ-

ent unit determination in the variant factual situations

_of these cases on criteria other than a controlling effect

being given to the extent of organization, the integrity

of the administration process requires that ‘courts may

not accept appellate counsel’s post hoc rationalizations |

for agency ° action Pe ’ Burlington Truck Lines v.

AE Pale IM ALS TE AR et te vab

4 ‘

C20 |

> United. States, supra, 371 U.S. at 168, 83 S. Ct. at 246;

» see Securities & Exchange Comm’n:v. Chenery Corp.,

332 U.S. 194, 196, 67 S. Ct. 1575, 1577, 91 L. Ed. 1995. -

For reviewing courts to substitute counsel’s rationale

‘or their discretion for that of the Board is incompatible

with the ordetly function of Phe process of judicial re-

« view.” (Foatnotes. omitted) .

AE AEs hs tlie dee ees t's

conflict between the Circuit Courts of Appeals on the same

unit determihation questions involving insurance companies.

‘All were refnanded.to the Circuits for remand to the Na-

tional Labor Relations Board for further proceedings con-

sistent with this opinion. See Metropolitan Life Ins. Co.

.v. N. L. R. B,, 380 U.S. 523, 85 S. Ct. 1825, 14 L. Ed. 2d

265, reversing 328 F. 2d 820 (3rd Cir.); ‘Western’& Southern.

Life Ins. Co. v. N. E. R. B., 380 U.S. 522, 85 S. Ct. 1326,

14 L. Ed. 2d 265, reversing 328 F. 2d 891 (3rd Cir.);‘Metro-

politan Life Insurance Co. v. N. L. R. B., 380 U.S. 525, 85 _

S. Of. 1828, 14 L. Ea. 2d 286, reversing 330 F. 2d 62 (6th

- [2] Examining the determination of the Board in the

| instant case, we find a.striking parallel. The Regional Direc- ,

‘tor made his determination on the appropriateness of a single

unit on the basis of (1) community of interest, (2) geogra-

phical separation, (3) substantial authority. of plant man-

agers, (4) little employee interchange between plants, and

(5) no history of. collective bargaining. in any plant and”

| no organization seeking broader based representation. All of

these are, in themselves valid reasons, as they were so held

: by: this court in Metropolitan Life Insurance Oo. v. N..L. R.

B,, 328 F. 2d 820, :

But here, as in’ the Metropolitan Life Insurance Company hye

: cases, the Board makes no attempt to explain its departure -

e from its prior determinations with regard to the same plants

of employer in prior years. Again, as in Metropolitan, the

explanation is set forth in the brief of counsel for the Board;

a change in Board policy in 1961 in which the Board has

been more prone to find single plant or less than company-

wide units appropriate. But, as Justice Goldberg stated in.

SEE, Sey See CNN ny eel. ie |

Court's discretion for as ip Fane |

~ [8] In our opinion the prior “history of this respondent. .

; required that’ the Board explain its departure from its prior |

’ determination. As stated in N. L. R. B. v. Metropolitan Life =

Ins, Co., 380 U.S. 438, at p. 443, 85 S. Ct. 1061, at p. 1064 -

(note 5): oP 26 “F

“Moreover, the Board: made no attempt to instiieae os

other cases, particularly the Chicago and Cleveland . . (|

‘cane af sane. The unfair labor practice proceeding *

added nothing to the analysis, as the trial examiner did i

not review the issue, as he felt was ‘bound by the

Board’s ruling in the representation proceeding.’ * * *

_ and the affirmed the trial examiner’s hes with-

» out discussion seabed eg

| Tt.

re ie THe DENIAL oF A HEARING.

Respondent complains hore, as it has in three pric stages _

| of the proceedings, that it has been denied a right to a hear- |

Nes on a substantial and material i issue, the sustaining of a

& 32°

SOARES ANI GAY ASO

PS ane obec RA RoE ASIN

tee —

"challenge to a ballot which could determine the result of a .

representation election. ¢

| The importance of this single issue is shown by the re

,_ spondent’s history. After a’ series of representation petitions |

had been denied bécause the Labor Board had: determined

single plants not to be appropriate units the Labor Board

changed its prior stand and determined that four individual:

plants were each appropriate units. In the plant in question

- 62 ballots were cast, $1 for the Union, 29 against, 2 challenged —

. by the Union. One challenge was sustained on the grounds

| that it involved a supervisory employee. This is the one at |

change the result.

aoe

The determination to sustéin the challenge was made-by

the Regional Director on the basis of an ex parte investiga-

tion. Respondent requested and was denied a hearing on

the question at the time of the Regional Director's admin-

st — investigation. -

‘Again i in its Request nena: sien iii its

request for hearing on the status of the alleged supervisory -

employee whose ballot was critical setting forth in detail

- its facts in support af this contention. Review was denied ”

_-- by the Board on the basis that it raised no substantial issues

" warranting review.. The Board now argues ‘that “To this

considerable extent the Company was ‘heard’ ”. 9

At tho hearing botors the Tial Bicanainer on the’ unfair

labor practice, respondent challenged the prior findings\gn —

the supervisory status of the employee concerned. The Trial

| C28. |

| ae rejected a detailed. proffer of. sities to prove

_ that said employee was not a supervisory employee on the

_-grounds that this issue was determined by the Board’s de-:

cision.on the Petition for Review, and absent newly dis- .

ei evidence, could not be -heard by him. .

‘The Rules and Regulations of the National Labor Relations

Board; Series 8, provide: '

§ 102.69 (c).“* * * if the challenged ballots are sufficient

in number to affect the result of the election, the re-.

gional director shall investigate such objections or chal-

lenges, or both * * * such action by the regional direc-

tor may be on the basis of an administrative investiga-

tion or, if it.appears to the regional director that sub-.

| stantial and material factual issues exist which can be

. * resolved only after a hearing on the basis of a hearing

director.” aa

“The extensive nature of the Regional Director’s report

in which he details the resultg of his investigation of the

‘ supervisory nature of the duties ‘of the challenged employee

clearly. establishes the existence of such “substantial and

’ material factual issues.” The printed record contains over

five pages of discussion of the factual bases for his determina-

tion. Yet all of the evidence upon which he relied is derived

from statements which were not subject to cross-examination

or confrontation or to any le al tests for nee their

use or weight as evidenee.”

‘The Board, on the Request for ‘Seten ined to. grant

a hearing. The Rules and Regulations provide:

§ 102.69(e): “If it appears to the Board that ‘such

eS | raise ‘substantial arid material factual i ——

BIE DAA RS th SA OPA sci Sail ae ih OA eu senn Foner s®.

° e .

‘ ’

_'C-24

_ the Board may direct the regional director or other

agent of the Board to issue and cause to be served on

the parties-a notice of | _—— on said éxceptions before “e

a hearing officer. 4g

Section -10(b) of the Labor iia Relations Act,

with reference to procedure upon complaint of violation, re-

‘quires a hearing. It further provides:

_ | «*-* * The person so complained of shall have the

right to file an answer to the original or amended com-

plaint and. to appear in person or otherwise and give

testimony at the place and time fixed in the complaint."

29 U.S.C. § 160(b).

" “F4) The Regional Director’s report on. the poul<lection

ballot challenges reveals that he at least collected a con-

siderable amount of information, whatever probative value

it may have to support a conclusion that: the employee was

‘supervisory. Respondent requested an opportunity to have

these facts determined by a hearing. This was denied, and

its subsequent request to the Board for hearing was denied.

The nature of the evidence which respondent wished to pre-

sent is revealed both in its Request for Review and in its

offer of proof before the Trial Examiner on the unfair labor

‘practice proceeding. The respondent there set forth in detail

_ several factual matters which it offered to prove to contradict

facts found by the examiner in his report based on ex parte

clearly relevant facts which were not mentioned in the

. Regional Director’s findings. We are not concerned with the |

question of whether or not the evidence considered by the

Regional Director is sufficient to support his finding, or

whether the rejected. evidence of respondent would. ever-

| C-25'

that the offer and the findings raise a substantial conflict

of fact which the Board’s Rules and Regulations require to be

determined by a hearing. If this was not apparent to the

Board at any prior stage it became clearly apparent at the

Trial Examiner’s hearing. The circumstances compelled a

hearing, at the very least, at this stage.”

It is apparent that the status of the employee whose bal-

lot was challenged presents a substantial factual issue. The

_ extent of the Regional Director’s discussion of facts attests

to its substance. The materiality is proven by the fact that

this vote could determine the result. “Therefore, the failure

to determine this issue on the basis of a hearing constitutes

a clear abuse of discretion on the part of the Regional Direc-

tor, which has been allowed to stand at the successive stages

of the proceedings on the grounds that the otiginal de-

termination was not open to subsequent review. Not only

ser "the Rules and Regulations, but ‘due. process of law demands

, that a hearing be held on this contested factual issue at fe

some. ‘stage of the administrative proceeding before respond-

" ent’s rights can be affected by an enforcement Order,

- Decisions in the courts of appeal for several circuits all

_support respondent’s content mecca with respect to

challenged ballots. ‘

InN. LR. Bv. Sidran, 181 F. 2d 671 (siti Cis, 1950) ,

the Regional Examiner found facts and made a determina-

tion on contested bellots' upon an ex parte administrative

as eat ta a

Lh ELINOR AL MPO

PGE NTE fe RANE A RN gre ae

C-26

i estigation, The Board upheld the Regional Director's

findings. The Circuit Court, upon enforcement proceedings,

stated: : |

“Manifestly, the Board’s action in considering such re-

._ port was not within its discretionary power, but under

the circumistances arbitrarily deprived respondent of a

fair trial.” 181 F. 2d at 673. |

- InN. L.R.B. v, Poinsett Lumber & Mfg. Co., 221 F. 2d °

121 (4th Cir. 1955), where objections to the conduct of the

election were raised and disposed of by the Regional Director

on administrative investigation, and where hearing before :

the Board and the Trial Examiner were refused on the _

' factual issues, involving a representation election, the Court

" “We think that it is entitled to a hearing at some stage

of the proceedings so that it may produce the evidence

upon which it relies for consideration by the Board and

‘ for consideration by this court in proceedings to enforce

or set aside the Board’s order.” (p. 123).

In another challenged ballot case, N. L. R. B. v. Joclin

Mfg. Co., 314 F. 2d 627 (2nd Cir. 1963), the Regional Direc-

tor filed a report based on an ex parte investigation to which

employer excepted. Again at the review. stage and at the

complaint stage the employer was denied the right to pro-

" duce testimony. Citing and following N. L. R. B. v. Sidran

(Cit. supra), the Court stated:

“In consequence a court cannot properly enforce an

_ order finding an employer guilty of an unwarranted re-

fusal to bargain with a union certified in an election if

it appears, with respect to challenges affecting the re-

sult, either that they were disposed of erroneously as a

' matter of law or that the employer raised ‘substantial

eas "oa

a material factual issues’ under the Regulations and

was denied a hearing that he seasonably request

(pp. 631-632).

See also N. L. R. B. v. Dillan Cite: Pichi Cota te

F. 2d 708 (5th Cir. 1956), and N. L. R. B. v. jand Baltichore

Press, Inc., 300 F. 2d 671 (4th Cir. 1962).

Both parties have recited the factual situation with regard

to the challenged employee at length in briefs, and the Re-

gional Director's report discussed it in detail. This only sub-

_ stantiates our conclusion that this was “a substantial and

_ material factual issue.” ;

‘We are of the. opinion, therefore, that both a proper ap-_

plication of the Board’s Regulations, and the requirements

of due process: demanded a hearing on-the factual issues aaa

_ Surrounding the employment of the challenged voter. The _

history of prior representation petitions, the disputéd appro-

' priate unit questions, and the closeness of the vote making |

the challenged ballot critical, all support the conclusion that

a hearing on the challenged ballot- was the only fair and

proper method Of procedure. Where all of these circumstances a

‘co-exist all procedural safeguards ought to be used. Only a

hearing can supply this. As stated by. Chief Justice Hughes ar

in Morgan v. United States, 304 U.S. 1, ‘at page 18, 58 S.

Ct, 773, at page 776; 82 L. Ed. 1129:

“The right to a hearing embraces. not only the’ right to .

present evidence, but also-a reasonable opportunity to

know the claims of the opposing party and to. meet

them.” —

Ties ables nee: Sis Whe sel: iii

A decree will be entered denying the Board's petition for

enforcement, ace

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.