# Petition for Writ of Certiorari — National Labor Relations Board v. Bata Shoe Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0799%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 917 ## Text - Opinions below... dhibardnlinadodmint : aor pinche FE RUSE AES APE Sotaea ‘ i The representation proceedings.‘ 2. The unfair labor practice proceed- : B. The decision of the court of appeals... __ | ' Reasons for granting the fbsdiideleanes endadswe - ‘Conelusion-_---__ swutiebatiias im neea seen —— _ CITATIONS © Celanese Corp:, of America v. National lak _ Relations Board 201 F. 2d. 224, certioeey denied, 368 U.S. 925...5.....-.-../.....- 10, 12 . \ =, r) *. 2SSBsrsy bo to no tA tom “ %- Comfort Slipper Corp., 112 NLRB 183....._ _— Cross Co. v.. National Labor Relations Board, 288 F. 2d 188_____ DearS OT ONES AAS SRE a -, DeVilbiss Company, The, 115 NLRB 1164... 15 " Graphic Arts Finishing Co. v. National Labor : Relations Board (C.A. 4), decided. June 19, PON TE ticatinRisincdadihicn Wen nre st ttere--5---- ° 13. Gummed Products Co.,.112 NLRB 1002. .....;... 15 Hollywood Ceramics Co, Inc., 140 NLRB mal. 10, 15 “am1-94—07 a) \\ ~~ Cases—Continued P roiste fe eons - Horder’s, Incorporated, 114 NLRB 751... : ‘International Telephone & Telegraph Corp.. v.. eee National Labor Relations Board, 294 F. 2d / io ies Pottery Co. v. Naiional Labor Relations Board, April 18, 1967, 65 LRRM 2055._--- Merck & Co., 104-NLRB 891-------------- National Labor Relations Board v. Bonnie: En-’ terprises, 341 F. 2d 712_--------------+-- "National Labor Relations Board v. Donnelly Garment Co., 330 U.S. 219. -.- | I heartily agree with the Court that “Due process of law demands and the present Rules and Regula- tions of the Labor Board provide that where there is a substantial and material issue of fact relating to - the validity of a representation election that a hearing be conducted at some stage of the administrative pro- ceeding ‘before the objecting party’s rights can: be affected by an enforcement order’’. I am mindful, too, that there can be no judicial hearings as to the elec- tion’s validity ahead of the refusal-to-bargain proceed- ing; the hearing I insist-upon is a fair administrative hearing only. My departure ‘from the opinion of the Court is in its conclusion that since the company after the decision of the Board had an opportunity to pre- sent evidence before the Examiner, the company was thus afforded a ‘‘sufficient hearing”’. “Hearing”, it is hornbook, presupposes an unpre- judged judgment on the issues at stake. Otherwise it is. an obvious mockery of due process. The procedure, ‘instantly amounted to just that. Admittedly, the “‘sub- * stanti@l’ and material issues’”—validity of the elec- tion—were completely and finally decided by the Board, ex. parte, long before the hearing of the em- ployer by the Examiner. It had been put-aside-by the Board as definitely settled, until the unfair practice —_p ties ’ cE : . ‘ a “ ¥ a . } _ ¢ase came on before. the Examiner. The company was * then, for the first time, allowed to put on evidence _ about the election, and then only before a subordinate . of the Board who was thus called upon to review his superiors’ determination. This post-decision “hearing” . is now, I think erroneously, held to be a “sufficient hearing’. any pe ile The Board’s procedure cannot be justified as anal- ogous to the -practice of courts to rule upen motions for reconsideration or rehearing witheut the pres- ence of the parties or the presentation of further evidence or arguments. ‘In eourt such metions and > ' rulings have been preceded by a full hearing when the issues, as the Court declares instantly, are sub- stantial and material. But presently the sole and ex- clusive chance accorded the employer-to submit its case fully was the hearing before the Examiner, some time after the Board’s determination of the issue. The Examiner was then to decide whether the Board’ had been right—a decision to be made “‘under the gun’’ of the Board. It is as if an appellate court had rendered an opinion witheut a hearing and then, without vacating it, had given .permission to the’ un- successful litigamt to ask the lower court to allow a — hearing and decide whether the appellate ruling _ should stand—this in turn to be re-reviewed by the appeals court. :. | Curtailment of a party’s rights in an administrative proceeding in this manner was condemned in Morgan _v. United States, 304 US 1 (1938). In discussing the fundamental requisites of an administrative hearing, with particular reference to the conduct of the Sec- retary of Agriculture under the Packers and Stock Yards Act, strikingly similar to the procedure of the Board here, the Chief Justice said: ° | : 46 The right to a hearing embraces not only the ight. to present evidence but also a reasonable opportunity to know the claims of the opposing _ part and to meet them. The right to submit ' argument implies that opportunity; otherwise the right may be but a barren one. Those who - are brought into contest with the Government . in a quasi-judicial proceeding aimed at the con- trol of their activities are entitled to -be fairly — advised of what thé Government proposes and to be heard upon its proposals before it issues - its final command. 304 US at 18. (Accent | added.) | | * -* . * . 4 * * Congress, in requiring a ‘‘full hearing,’’: had regard to judicial standards,—not in any tech- nical sense but with respect to those funda- mental requirements of fairness’ which are of the essence of due process in a proceeding of .a judicial nature. If in an equity cause, a special | master or the trial judge permitted the plain- tiff’s attorney to formulate the findings upon ‘the evidence, conferred ex parte with the plain- tiff’s attorney regarding. them, and then adopted his _ without affording an op- . portunity to his,opponent to know their contents .and present objections, there would be no hesita- _ tion in setting aside the report or decree as hav- ing been made without a fair hearing. The requirements of fairness are not exhausted in the taking or consideration of evidence but extend to the concluding parts of the procedure as well as to the beginning and intermediate steps. 304 US at 19-20. . | : This same thesis was expounded, and applied by re- fusal to enforce the Board’s order because passed upon ~ a contrary procedure, in Russell-Newman Mfg. Co. v. NLRB, 370 F. 2d 980, 984 (5 Cir. 1966), the Court -. gaying: 47 Due proce$s in an administrative hearing in- cludes a fair trial, conducted in accordance with fundamental principles of: fair play and ap- plicable. procedural standards established ‘by mwee? ie , Tied ; _ Nor ean an employer be treated in this cavalier fashion on the score of expedition. Rights cannot be . Sacrificed in the name of dispatch. Nor is it legalized because the adjudicating tribunal cannot devise a bet- ter process. Cf. Russell-Newman M fg. Co. v. NLRB, supra, 370 F.2d 980, 984; NLRB v. T'rancoa. Chemical Corp., 303 F. 2d 456, 461 (1 Cir. Bee); 6. When the Court found, as it has, that the objec- tions and exceptions of Bata were not frivolous but . nevertheless had been disposed of. ex parte, then the Court should have immediately set aside the Board’s order. N& only was this a clear refusal of due proc- ess; it wA€ irremediable under the Board’s established procedures. A post-decision “hearing” hardly fulfills... the ‘‘hearing at some stage of the proceedings” now | demanded by the Court and by the precedents it cites. . In consequence a court cannot properly en- force an order finding an employer guilty of an unwarranted refusal to bargain with a union.cer- tified in an election if it appears, with. respect to challenges ‘affecting the result, either that they were disposed of erroneously as a matter of law or that the employer raised ‘substantial and material factual issues’ under the Regula-. » tions and was denied a hearing that he sea- sonably requested. * * * N.L.R.B. v. Joclin Mfg. Vo., 314 F. 2d 627, 631-32 (2 Cir. 1963). - This withdrawal of due process from the proceed-_ "ing was aggravated in the present case by the nature of the so-called sufficient hearing. Thé’ company is held to have forfeited its protestations of an unfair elec- _ tion because it failed to put on.evidence to that effect € 48 before the Examiner. It is small. wonder that the com- pany abstained. The Examiner had not even been di’ reeted by the Board to hear the employer. By tele- gram the company was merely given “Jeave * * * to request the Trial Examiner to permit” it to be heard. (Accent added:) Aside from-this casualness of the Board toward the*interest of the employer, the Examimer himself was so perplexed as to his authority and duties that he asked for argument from the - ties as to what he should do.- - True, finally he invited the employer to reiterate its objections and exceptions and to submit its evidence, but the Examiner was net sure of- what could be done -with it, even if it preponderated in favor of the com- pany. Notfting could have been accomplished; the game was over before it began. Was it reasonable to expect the Examiner to reverse the Board? Yet the employer. is cast in judgment for default in not pui- 7 suing this expectation. _ I join im the result of the Court’s opinion, but I - regret it endorses the Board’s procedure. J. SPENCER BELL, Circuit Judge," digsenting: — re again my colleagues invade an area whieh I think is pecoharly within the expertise of the Board to over- throw a result, they do not like. It is, I think, quib- _bling to use ba two points they have chosen to find the Board clear ly in error on the representation issue. . The first is that the union misrepresented the fact that New: Yerk, union contracts offered clinical serv- ices to the ies of union members. There was no , evidence ‘that this representation in fact changed a vote, and certainly the Board is in better position _ to judge than this court which has.only the opinion of of company counsel to support its conclusion. The "+ Fndge Bell prepared this _— before his death on March 19, 1967. - 49 ~ second is that the leaflet addressed to.the company be- p ginning “In your New York union contracts” mis- ’ led the employees, The majority’s opinion -is specula- tion, and if I were going to speculate I would assume that after a long and bitter campaign, the employees would all know whether the ‘company had in fact ° signed advantageous contracts with the union at other plants. Finally, the reversal of thé Board with respect: to the mechanics of ‘the election is utterly without justification. There was nota scintilla of evidence that the persons excluded from voting were company ad- herents. If mistakes there were, the Board was justi- fied in’assuming they cut hoth ways. In NLRB v. Jesse Fones Sausage Co., 309 PF. 2d 664, 667 (4 Cir. 1962), this court said “* * * itis not for this court to exercise discretion as to ‘whether or not the elec- tion should be set aside for irregularities in ‘pro- cedure.’ ”’ : : | _. United States Court of Appeals for the Fourth — = Circuit No. 10552 | . ‘Nationa Lapor RELATIONS BOARD, PETITIONER Bata Suoz Company, Inc., RESPONDENT; UNITED SHOR Workers or America, AFL-CIO, InTERVENOR : On Petition’ for Enforcement of an Order. of the ' . National Labor Relations Board This cause came on to be heard upon the petition of the National Labor Relations Board for enforce- ment of a certain order issued by it against Respon- dent, Bata Shoe Company, Inc., its officers, agents, ‘ " a ‘ _—" -e oe successors, and assigns, on the 18th day of February,. 1966, in a proceeding before said, Board known upon its. records as Case No. 5-CA-3293; upon the answer of the Respondent, and upon the certified list in lieu. ° of a transcript of the reoond and the said cause was. argued by counsel. On consideration id it is ordered; adjudged and decreed by the United ‘States Court of Appeals - _ for the Fourth Circuit, that the said petition of the- National Labor Relations Board be, and it is perey. denied. J. Braxton CRAVEN, Je R., United States Circuit Judge. Filed ae 6, 1967, Mavnice S. Dean, Clerk. APPENDIX C United States Court of Appeals - Sor the Fourth Cireuit No. 10159 | Graraic ARTS FINIsHING Oo. Inc, PETITIONER . : Vv. , ] N ATIONAL LABOR RELATIONS Boar, RESPONDENT On Petition for Review of an-Order of the N ational Labor Relations Board. _ anteit February 9, 1966—Decided June 19, 1967 . Before BoreMan, Bryan annd J. SPENCER DMA, » | Circuit J udges BoreMan, Ciréuit Judge: This is a petition by Graphic Arts Finishing Co., Inc. (hereafter the com- . pany), for review of a decision of the National Labor Relations Board (hereafter the Board) which held _ that the company had. violated section 8(a). (5) of _ the National Labor Relations Act as amended. The Board’s Decision and Order is reported at 153 NLRB ems No. 115. The company, a Maryland corporation, is ‘ihaikinéaa in finishing printed material, and has its principal , place of business in Baltimore. In September of 1964 the United Papermakers and Paperworkers, AFL-— CIO (hereafter the union), engaged in an organiz- *Judge Bell, 2 member of the panel, voted in conference for enforcement of the Board’s order but died before the ; opinion was prepared. 7 (61) 52 ‘on campaign e the company plant. On September | 22, 1964, the Board eonducted a representation elec- tion at ‘the ‘company: plant. There were ninety-one ' votes cast for the union and eighty-three against, ' with five challenged votes. The eommpany filed. objec- - tions with the Regional Director urging that the elec- tion “was rendered invalid by reason of unfair con- | duct on the part of the union and should be set aside. -The Regional Director, after an investigation but without a hearing, recommended that the company’s _ objections he overruled and that the union be certi- fied. The company filed objections with the Board and again requested a hearing. The Board, without a hearing, adopted—the- Regional Director’s recommen- . dations and eertified the union as the bargaining rep- - résentative of company employees. However, the com: . ‘pany refused to bargain with the union, asserting that it would not do so wntil a federal court had reviewed the Board’s ‘certification. The union then filed an un- fair labor practice charge based upon the company’s refusal to bargain. The parties stipulated to waive a hearing before a Trial Examiner and the matter pro- ceeded directly to the Board. The Board held that the ~ company had violated section 8(a)(5) of the Act by refusing to bargain colleetively with the union and ordered the company to cease and desist from such practice. | The company argues ‘that the iesiihoalham conduct and tactics of the union rendered the election unfair - and interfered with the free choice of the employees. We consider and discuss here only one aspect of the _ thallenged conduct which, in our opinion, requires that . enforeement of the order under review be denied.’ . 2 Among other company objections to the election were the following: coercion of employees and threafs of violence on the _ ‘part of union representatives and sympathizers; union violation - Poe , pe ee i Ye _ It is undisputed that twenty-four hourg prior to the actian the junion issued two circulars which under- took to point out to the employees the many benefits. which would follow unionization. One circular related - to “wage rates and fringe benefits that are being paid. | under’ Union Contracts, ” and proceeded to list wage = rates for various classifications, but the companies allegedly paying such rates were not identified. It. was subsequently established that the rates and bene- - fits were a composite of those paid under various ~ contracts.in a wide area extending from Philadelphia, ~ Pennsylvania, to Washington, D.C., excluding the Baltimore area. A witness familiar with the wage rates and benefits existing in unionized binderies in the Baltimore area submitted a statement that none ~ - of the companies in that area was paying the rates and benefits listed in the circular. The apprentice rate set forth in the leaflet was 10% > or $33 per hour higher than that actually paid even in the Washington area where a high apprentice rate. did exist. _ A seeond cixeular distributed at the same time dis- -eussed strike procedure and. strike benefits. With re- _ spect to strike relief benefits the leaflet stated “‘$100,-— — 000 Dollars was paid out in strike relief to members and their families in the Chesapeake strike. NOT ONE PERSON LOST A THING.” The strike re- ferred to in the circular was a strike sanctioned and - conducted by the same union at Chesapeake Paper- board Company, a, Baltimore firm, from August 1962 to February 1963. The president of that company sub- mitted a statement to the Regional Director in which ' of agreement not to challenge the votes of certain employes which agreement was a condition precedent to the company’s consent. to the election; the late start of the election which > deterred employees from voting. ; ie ‘it was shown that his employees lost _ppudontiinately $600,000” in wages as a‘ result ‘of that strike. This strike was of great, importance in the election which is challenged here: because the same union’ was ins . volved. The Regional Director found that the circular con- tained such misstatements but that they were “not. suffi- cient to render the election invalid because their. _ impact on the election was insubstantial. The misrepre- sentation as to apprentice rates was ‘dismissed ‘as in- significant because the company did not have an“ap- prentice program and that trainees did not consider _ themselyes apprentices. The Regional Director found no obligation on the part of the union to disclose ~ that its information referred to a wholly different area. It concluded that the union was merely stating what. it could do and “the. fact that the prevailing unionized industry rates and benefits in Baltimore are less, does not mean it misrepresented or deceived the voters.” ‘The Regional Director also dismissed the misstate- "ment concerning the-strike relief benefits paid at the | Chesapeake Paperboard Plant because ‘“‘this is the sort of ‘language that employees can readily evaluate. It is unreasonable to suppose that employees would be ~ . misled by such statements into thinking that whether they strike or work, they will suffer no loss whatso- ever. The facts of. industrial life are too widespread. One can readily. see through such exaggeration.” These findings were adopted by the Board in its deci- sion that the company had violated section 8(a) (5) of the Act; the Board merely referred to its earlier decision. ‘With this decision: we cannot agree. . ‘The Board, in Hollywood Ceramics Company, Inc., up 140 NLRB 221, formluated and announced the test to be applied in determining: whether campaign liter- oat r OG) ae RM gO NO ee A \ es - ature containing misrepresentations could serve as a _ basis for invalidating an election, ‘There the Board - held that, in order to set aside an election, there must "9 be (1) a misrepresentation of a material fact which - is a substantial departure from the truth, (2) which is ‘so timed as to prevent the other side from making an effective rebuttal, and (3) may reasonably be ex- _ pected to have a signifi¢ant impact on the election. Id. ° at 224, . “fs } ; | cam y ES, _ In NLRB. v. Bonnie Enterprise, Inc., 341 F. 2d 712 (4 Cir. 1965), this court set aside an election . because of union misrepresentatiori of facts contained — in campaign literature. There the literature cofttained misrepresentations as to group life insurance, sick ° pay, vacations and coffee breaks. It was distributed on the day prior to the election and on election day. We held: PE oes a9, ANG Borg bas It is clear that the promises contained in the , circular went far beyond .the beunds of per- ____missible hyperbole sometimes indulged in dur- ing pre-election ca: paigns for public office. They were substantial misrepresentations of material facts of vital concern to employees _ - Voting in the election. In fact, it is difficult to _ conceive of more important -Inisrepresenta- mine their untruthfulness. Id. at 714. at _. In Celanese Corporation of America v. N.L.R.B.2 it was held that’ misrepresentations'as t6 fringe bene- - fits were material’ to voting employees: and would — operate to set aside the election. The union had stated °o #121 NLRB. 303 (1958), enforcement denied, 279 F.2d 204 (7 Cir. 1960), vacated per curiam, 365 US. 297 (1961), ene forcement denied, 291 F. 2d 224° (7 Cir.), cert. denied, 368 U.S. 925 (1961), +, rire 56 that fringe a at other: company sala had ra we - won through collective bargaining. While the court — found that a number of benefits at-the company’s: other plant were effected through collective bargain- ing, the company ‘had. instituted some bénefits on its . own initiative. The union argument that it did not intend to create the impression that all the benefits. — ‘were won through collective bargaining was - rejected by the eourt which stated: “If the author had in- - tended to speak of some -or several benefits, he would necessarily: have had to employ a limiting adjective.’’ 279 F. 2d 206. The court, in a subsequent decision, pointed out that because of the union’s special knowl- ‘ edge as to the facts and because the company was. effectively prevented from replying to these misstate- ments the election would be set aside. 291 F. 2d 226-~ , Avcord, N.L.R.B. v. Houston Chronicle Publishing . . Company, 300 F. 2d 273 (5 Cir. 1962). : In the instant case there was no. épportanity. to reply ‘to the union’s misstatements and the. election was close ; - -€ switch of only five votes would have -resulfed in a union defeat. The misrepresentations ‘ - oncerned subjects even more vital than those in Bonnie Enterprises because here they dealt, in part,. - with wages. ‘A misrepresentation of $.33 an hour with respect to apprentices’ wages represents $13.00 per week and more than $600.00 per year. It appears be- yond question that such a figure is material and would significantly affect the free choice of the employees. See Bok, Regulating NLRB Election Tactics, 78 -. Harv: L. Re . 38, 90 (1964). The Regional Director’s: attempt to in that the company had no appren- tice system ignores the fact that the company had twelve trainees. It is also clear that no union em- ployees in the area were receiving all the rates and benefits listed in the literature. The union, in discuss- ~ —_ aie ot eam ae ing such significant subjects was obligated to be mueh fe more precise. Wages are of paramount importanee to - employees as “they are the stuff of life for Unions -. and members, the selfsame subjects concerning which men organize and elect their representatives to bar- gain.” N.L.R.B. v. Houston Chronicle Publishing Company, supra, 300 F.2d at 280. | . ' - We conclude that the gross misrepresentation as to strike benefits paid to the union’s members at another plant. in the area and that not one person lost a thing — during a recent strike was material and had a signifi- cant impact on the election. There was no equivocation : here: the union statement concerning what it had paid | other members and the effect of such payments was - unqualifiedly false. The’ Regional Director’s explana- ~ ‘tion’ that’ the workers could easily see through sueh. a misstatement disregards the fact that this was a statement made by the union. which paid the strike | - benefits, a fact which would seem to clothe the state- ment with unmistakable authenticity. If the employ- ees believed this statement, made ‘by the party in the best position to know the truth, any doubts they en- tertained about joining the union for fear of being | involved in a costly strike would be substantially re- duced, if not totally removed. It i$-ecommon knowledge that strikes play a-major role in labor relations and that they constitute the most potent weapon in the - . employees’ arsenal. We reach the conclusion that such ay deliberate misrepresentations as to material facts, . . particularly the false statement that the payment by ° the union of strike relief funds save the strikers from ‘all loss, made to employees who were faced with a diffi- - cult choice in an election decided by sucha narrow margin, were timed so as to prevent the company from ‘making an effective rebuttal, were reasonably ex- ° pected to have a significant impact on the election and Sle HAT Cie te Oe EEE NAB UD &@ “ . 58 .. prevented the anita from naiitdealais their tune + and untrammeled choice as to a bargaining: represen- tive. .N.L.R.B. v. Prinity Steel Co., 214 F. 2d 120, 123. (5 Cir. 1954). We hold that the Board’s onde ‘should be set aside and the company’s petition for denial of enforce- | ment should be i viniiaenia ot” ee | Enforcement denied. . eke. , --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0799%3A1. Public record. Not legal advice.