# Appendix — Neuhoff Bros. Packers, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0254%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1967 - **Citation:** 386 U.S. 956 ## Text 8 F ¥ . rst A- Ee tn + nbae Van ee . = ° _., 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 #3 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 (c) The same officers who preside at the reception’ of 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- ey 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., v. 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. os Petitioner, TIO ta Ae ee ee ey c . limited to “all produ ; B-2- : . oe 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 - SY of 7, a ~ @ 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 Ya * in A thE ee PY NERS REM POT PS LN INTE AMM EU TEE TILL RINT OPT . 4 4 * “t ee ep rg EE EW ates > POS IT NEY —&B4 "eee : aw 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 “ ¢ ' i , : RN Se le ees Be a wa Y 4 = | | - BS 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. - v ’ 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 ae B-8 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 oe) | 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 . ~ Sy . eee | e LEYLA EEN LOFT TNS SIO ° ni tm adh tee daca ai ie tie trale ach Balinese eniiaaean B-10° 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 ¥ LE WRRIE REL LILLIES IEEE LIE SNL RISING ‘ . “ ee ee . © ., > Ba ; - United States Court of Appeals. _ FOR. THE FIFTH CIRCUIT ' No. 22917 ' Nevnorr. Brorners, Packers, INc., | \. : or Petitioner, Vv. \ Nammowa Laos RezaTions Boar, © Respondent. On 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 ~~, — Bl3 9° ae: 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 \ ¢ ‘ ae ; e ' 4 7 > r ai —~ Seid, 8 . : + ..» In the - United States Court of ‘Appeals _ FOR THE FIFTH CIRCUIT eg ey “\- ; : ° ‘ _ | 7 : NEvHOFF BROTHERS, PACKERS, inc, | Appellants, ne . \ 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. C1 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 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, : FY ° 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 . . (| cases discussed ‘supra, in which. it ‘certified different © . 4 ‘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 | Rate 5 © tae erly ecient inliot rehd 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 before a hearing officer, designated :by the regional © 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