Petition for Writ of Certiorari — Dean Foods Co. v. National Labor Relations Board

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

DEAN FOODS COMPANY, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Sixth Circuit

FOWLER, BRACKHAHN, YOUNG & PERL

NEWELL N. FOWLER

RICHARD A. BRACKHAHN

Memphis Bank Building

44 North Second Street

Suite 603

Meirphis, Tennessee 38103

Attorneys for Petitioner

St. Louis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 314-231-4477

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INDEX

Page

Prae eee eee eeeecceeeeeeeeecceeeceeene 1

Opinions ....... Std ou aks tee dea sden ns sae tebonbénns 2

rr ĩ ²˙mÄ1 ̃· .uͤi ' R nee 2

Questions Presenteel ne 2

— ——U— U G —! „46 3

Reasons for Granting Writ of Certiorari

A. The court below has approved expedited proce-

dures of the National Labor Relaticns Board

that are contrary to the intent of Congress, con-

trary to the Act, and contrary to the National

—77on“]“ , .. 11

B. The decision below is in conflict with the deci-

sion of the Second Circuit with regard to these

expedited procedures promulgated by the Na-

tional Labor Relations Board ................. 16

— ͤ execs eee 21

Appendix

A. Order of the United States Court of Appeals for

, ⁰·-˙-w-/-ꝛ·- Sere A-1

B. Opinion of the United States Court of Appeals

— —U—»ĩ—: naa sbcb owe cdhdatncdiaves A-2

C. Decision and Order of the National Labor Re-

e e 8 6 6 A-5

D. Trial Examiner’s Decision ................... A-7

E. Decision and Certification of Representative ...A-19

F. Regional Director’s Report and Recommenda-

r ' A-22

Certificate and proof of service .................... A-35

il

CITATIONS

Cases:

Baltimore and Ohio Railroad Company v. United

States, 289 U. S. 349, 56 S. Ct. 7977777 19

Baush & Lomb, Inc. v. NLRB (CA-2, 1968), 404 F.

ww 0000QQ]Q ¹˙¹wn ̃ —ðͤ0ʃ ches e 15

Fox Film Corporation v. Trumbull, D. C. Conn., 7

J —o w ͥQſꝙ—cT̃AA²Ü·ͤ ͤ ²⁵ A 14

Graphic Arts Finishing Co. v. NLRB (CA-4, 1967),

— ³aAA ⅛%ↄ⁵ base ieee oh oe csaceesis 15

Hannah v. Larche, 363 U. S. 480 S. Ct.

ͤ“—w ͤ 's SE SV EPP N aioe 19, 20, 21

Home Town Food, Inc. v. NLRB (CA-5, 1967), 379

Be EE GK a Ma nbd cub y AAA 15

Jenkins v. McKeithen, 89 S. Ct. 1843 ............ 19, 21

Morgan v. United States, 304 U. S. at 18, 58 S. Ct.

—Z—:! ͤ : EET ED TE Bui 19

National Labor Relations Board v. Indiana and

Michigan Electric Company, 318 U. S. 9, 28, 63

// ² —˙òwTT—ꝛĩ soc¥aes 17

National Labor Relations Board v. Mattison Ma-

chine Works, 81 S. Ct. 44ͥʒ444.. 18

NLRB v. Capital Bakers, Inc. (CA-3, 1965), 351 F.

TTW ene 14

NLRB v. Smith Industries, Inc 403 F. 2d 899

(CA-5, 1968) eeeee eeeeoeeeeeeeeeeeeeeeeesneeeees 17

NLRB v. The Process Corporation, 412 F. 2d 215

(CA-7, 1969) 2 2 62 6 „ „ „6 „ % %%% %%% %%% %%% „% „%% „% „% %„%„ „0 17

NLRB v. Trancoa Chemical Corporation (CA. 1,

ens ee 14, 15

— me

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ili

Pepsi Cola Bottling Company v. NLEB, 409 F. 2d

676 (CA-2, March, 19690v7:7:::i- 16, 18

Sonoco Products Corp. v. NLRB (CA-9, 1968), 399

CCCF—TZTWwWÄwöüĩ c ͤ=ſ ON abe hen eRTs 15

Statutes:

% — e 2

%%ĩ Z]½]½)) . T2 2

, ̃ —— ——WWWAWAWAWWA.. ¼ꝓWVm!.!«!RAQůĩ re 2

National Labor Relations Act as amended (61 Stat.

136; 72 Stat. 945; 73 Stat. 544; 29 U. S. C., Sec.

Oe UME ee a ke 3, 4, 9, 10, 11, 12

Other Authorities:

P 7, 12

%% I io Ss ͤ— 6, 12, 13

Black’s Law Dictionary, West Publishing Co., 4th

Wii FUE K kee hRkis 14

Congressional Record, Senate, June 5, 1947, 93

— UNE. ove Z ͤ »“—[1 11

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

DEAN FOODS COMPANY, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Sixth Circuit

The Dean Foods Company, Inc., Petitioner herein, prays

that a Writ of Certiorari issue to review the judgment

of the United States Court of Appeals for the Sixth Cir-

cuit entered in this case on January 20, 1970 and grant-

ing enforcement of an Order issued against Petitioner*

by the National Labor Relations Board.

1 Petitioner herein was designated as “Respondent” before

the court below; concurrently Petitioner herein was designated

as “Respondent” or the “Employer” before the National Labor

Relations Board.

3

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix B, infra,

pp. A-2—A-4) is not yet officially reported. The conclusions

of law and Order of the National Labor Relations Board

is reported at 171 NLRB 60 (Appendix C, infra, pp. A-5—

A-6). The decision of the Regional Director for the

Twenty-Sixth Region of the National Labor Relations

Board, out of which the incident case arises, is not officially

reported (Appendix F, infra, pp. A-22—A-34).

JURISDICTION

The Order of the United States Court of Appeals for

the Sixth Circuit was rendered on January 20, 1970 (Ap-

pendix A, infra, p. A-1); and its opinion was entered the

same day, that being specifically January 20, 1970 (Appen-

dix B, infra, pp. A-2—A-4). The jurisdiction of this Court

is invoked under 28 U. S. C., Sec. 1254 (1) and Sec.

10 (e) and (f) of the National Labor Relations Act, as

amended, 29 U. S. C., Sec. 160 (e) and (f).

QUESTIONS PRESENTED

1

Does the National Labor Relations Board have the au-

thority to compel and order the Petitioner to recognize and

bargain with a labor organization when it has not inde-

pendently (or otherwise) reviewed the findings of fact,

evidence presented, or conclusions at law of a subdele-

gatee?

Does the National Labor Relations Board have the au-

thority to compel and order the Petitioner to recognize and

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bargain with a labor organization when it did not afford

this Petitioner the opportunity to resolve evidentiary

conflict by confrontation with, and eross- examination of,

witnesses; nor even afford or conduct a hearing at any

stage of these proceedings?

In the alternative, if it is found that the National Labor

Relations Board exercised procedural due process required

by law and therefore, afforded ‘‘fair’’ treatment to the

issues and to the Petitioner, is the determination of the

National Labor Relations Board that a fair election was

held among the employees based on substantial evidence?

STATUTES INVOLVED

The National Labor Relations Act as amended (61 stat.

136; 72 stat. 945; 73 stat. 544; 29 U. S. C., Sec. 151 et seq.),

insofar as is herein pertinent provide:

Section 7. ‘‘Employees shall have the right to self or-

ganization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own

choosing, . . . and shall also have the right to refrain any

and all such activities.

Section 8 (a). It shall be an unfair labor practice for

an employer—

(5) to refuse to bargain collectively with the representa-

tives of his employees.

Section 9 (e) (5) (d). Whenever an order of the Board

made pursuant to Section 10 (c) is based in whole or in

part upon facts certified following an investigation pur-

suant to subsection (c) of this section and there is a pe-

tition for the enforcement or review of such order, such

certification in the record of such investigation shall be

an OI

— Se

included in the transcript of the entire record required to

be filed under section 10 (e) or 10 (f)... (emphasis

supplied).

Section 10 (a). The Board is empowered, as herein-

after provided, to prevent any person from engaging in

any unfair labor practices affecting commerce.“

Section 10 (b). Whenever it is charged that any per-

son 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 stat-

ing the charges in that respect, and containing a notice

of hearing before the Board or a member thereof, or be-

fore a designated agent or agency, at a place therein

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“ (emphasis sup-

plied).

Section 10 (c). ‘‘The testimony taken by such member,

agent, or agency or the Board shall be reduced to writing

and filed with the Board. Thereafter, in its discretion, the

Board upon notice may take further testimony or hear

argument. If upon the preponderance of the testimony

taken the Board shall be of the opinion that any person

named in the complaint has engaged in or is engaging in

such unfair labor practice, then the Board shall state iis

finding of fact and shall issue and cause to be served on

such person an order requiring such person to cease and

desist from such unfair labor practice, and to take such

affirmative action. . as will effectuate the policies of

the Act. (Emphasis supplied.)

Section 10 (e). The findings of the Board with respect

to questions of fact if supported by substantial evidence of

_

the record considered as a whole shall be conclusive. If

either party shall apply to the court for leave to adduce

additional evidence and shall show to the satisfaction to

the court that such additional evidence is material and

that there were reasonable grounds for the failure to

adduce such evidence in the hearing before the Board, its

member, agent, or agency, the court may order such addi-

tional evidence be taken before the Board, its member,

agent, or agency and to be made a part of the record...

Upon the filing of the record with it the jurisdiction of

the court shall be exclusive in its judgment and decree

shali be final, except that the same shall be subject to

review by the appropriate United States court of appeals

if application was made to the district court as herein-

above provided, and by the Supreme Court of the United

States upon writ of certiorari or certification as provided

in Section 1254 of title 28. (Emphasis supplied.)

—_ ya

STATEMENT OF THE CASE

In substantial respects the facts of this matter are not

in dispute save one critical issue.* It was mutually agreed

between these parties that on July 20, 1967, pursuant to

a Stipulation for Certification upon Consent Election, the

Regional Director for the Twenty-Sixth Region of the

National Labor Relations Board residing in Memphis,

Tennessee would conduct and hold an election among the

Petitioner’s employees in a unit again reached upon Stipu-

lation and agreement between these parties (J. A., pp.

5, 6).* The results of that election disclosed that twenty-

three (23) employees cast respective votes for the peti-

tioning labor organization, while seventeen (17) employees

cast their respective ballots against it; there also remained

five (5) challenged ballots in this close determination

(J. A., p. 7).

Because of alleged campaign trickery, and other coercive

conduct by the labor organization involved, this Petitioner

did timely file Objections to this election (Pa. 9, 10).

Admittedly, Section 102.69 (o), 29 C. F. R. 102.69 (e)

of the Board’s Rules and Regulations formulated the pro-

cedure upon which an investigation of these Objections

could be conducted by the Regional Director for the

Twenty-Sixth Region.

In this respect, it is critical for the parties and this

Court to distinguish the difference between a ‘‘Stipulation

2 The factual area of disagreement remaining is whether or

8 J. A.” refers to the printed Joint Appendix presented to

the court below.

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for Certification upon Consent Election’’ agreement which

is governed by the procedures of Section 102.62 (b) of the

Board’s Rules and Regulations to that merely of a ‘‘Con-

sent Election which is restricted by the limitations im-

posed in Section 102.62 (a) of the Board’s Rules and

Regulations.*

It is, therefore, noted in the latter consent agreement

procedures that ‘‘the rulings and determinations by the

See. 102.62 Consent-election agreements—(a) Where a pe-

tition has been duly filed, the employer and any individuals

or labor organizations representing a substantial number of

employees involved may, with the approval of the regional di-

rector, enter into a consent-election agreement leading to a de-

termination by the regional director of the facts ascertained

after such consent election. Such agreement shall include a de-

scription of the a unit, the time and place of holding

the election, and the payroll period to be used in determining

what employees within the appropriate unit shall be eligible to

vote. Such consent election shall be conducted under the diree-

(b) Where a petition has been duly filed, the employer and

any individuals or labor organizations representing a substan-

tial number of the employees involved may, with the approval

of the regional director, enter into an for

a waiver of hearing and a consent leading to a —

mination by the Board of the facts ascertained after such con-

sent election, if such a determination is necessary. Such agree-

ment shall also include a description of the appropriate

bargaining unit, the time and place of holding the election,

and the payroll period to be used in determining which em-

ployees within the appropriate unit shall be eligible to vote.

Such consent election shall be conducted under the direction

and supervision of the regional director. The method of con-

ducting such election and the postelection procedure shall be

consistent with that followed by the regional director in con-

ducting elections pursuant to sections 102.69 and 102.70 (em-

phasis supplied).

n

Regional Director of the results thereof shall be final.“

Conversely, under the ‘‘Stipulation for Certification upon

Consent Election,’’ the parties ‘‘enter into an agreement

providing. . . a consent election leading to a determina-

tion by the Board of the facts ascertained after such

consent election .. Simply expressed, these parties are

bound by facts ascertained after the election, which are

determined by the Board; not by the final determinations

of the Regional Director of the Twenty-Sixth Region re-

siding in Memphis, Tennessee.

The Petitioner will hereafter show that this case has

proceeded with the treatment of the Regional Director’s

rulings and determinations as final; and conversely, that

the Board, upon whom Congress alone vested this re-

sponsibility, did neither see, consider, ascertain, or deter-

mine the facts of this matter. The result being that the

Respondent’s Order against this company is based upon

findings of fact and conclusions of law rendered with

binding finality by only a subdelegatee, i. e., the Regional

Director.

This Regional Director’s Report and Recommendations

on Objections issued on September 1, 1967, and summarily

concluded that the Company’s Objection were without

merit and recommended that they be overruled (Appendix

F, infra, pp. A-22—A-34). Thereafter, the National Labor

Relations Board utilized its expedited procedure to find that

this company had violated a federal statute and had en-

gaged in unfair labor practices which Order, on January

20, 1970, upon Petition for Enforcement by the National

Labor Relations Board received judicial condonation and

enforcement. This Petitioner hereby questions not only

judicial enforcement of such an Order, but more pointedly,

the expedited procedure which is hereafter explained.

On September 7, 1967, the Petitioner filed timely and

appropriate exceptions to the Regional Director’s Report

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8

and Recommendation on said Objections and specifically,

requested review by the National Labor Relations Board

of the Regional Director's Report (J. A., pp. 23-32).

Thereafter, on October 20, 1967, the Board issued its De-

cision and Certification of Representative which literally

adopted the Regional Director’s findings and recommenda-

tions; concluding that no substantial issue of fact or law

existed that would warrant the reversal of the Regional

Director’s findings and recommendations or further re-

quire a hearing of this matter (Appendix E, infra, pp.

A-19—A-21). Accordingly, the Respondent certified the pe-

titioning labor organization as representative of these em-

ployees. Thereafter. on November 7, 1967, the Petitioner

filed a Request to Review and Reconsider the Board’s

action and decision as rendered (J. A., pp. 35-41). This

request was duly considered and denied on November 17,

1967 (J. A., p. 42).

On December 1, 1967, the then ostensibly certified labor

organization filed an unfair labor practice charge against

this company alleging that it had refused to bargain col-

lectively with the union (J. A., p. 43). Thereafter, a com-

plaint issued from the office of the General Counsel of the

National Labor Relations Board and a notice of hearing

distributed to these parties; the complaint against the

company alleged violations of Section 8 (a) (1) and (5)

and Section 2 (6) and (7) of the National Labor Relations

Act (J. A., pp. 44-48). However, before a hearing of this

cause was afforded to these parties, Counsel for General

Counsel for the National Labor Relations Board on Jan-

uary 5, 1958, submitted a Motion for Judgment on the

Pleadings only (J. A., pp. 53-56). The Board’s represent-

ative therein asserted that the violations alleged in the

Complaint against this company were conclusively estab-

lished and that no hearing was necessary or required.

On July 9, 1968, a duly appointed Trial Examiner of the

National Labor Relations Board, one Charles W.

—10—

Schneider, issued an Order to Show Cause on the Motion

for Judgment on the Pleadings by which the company was

directed to show cause on or before January 25, 1968, as

to whether or not this expedited treatment should be

granted (J. A., p. 57). In response, the Petitioner on Jan-

uary 23, 1968, filed a response to General Counsel’s Mo-

tion for Judgment on the Pleadings, and further, attached

an appropriate Motion to Produce Evidence directed at

certain documents and affidavits possessed and maintained

by the Regional Director for the Twenty-Sixth Region in

Memphis, Tennessee and asserting that said documents

and affidavits be produced and made a part of the record

before the Trial Examiner (J. A., pp. 58-60).

Both the Petitioner’s Motion to Produce Evidence con-

cerning admittedly absent documents and affidavits and

its response to the Motion for Judgment on the Pleadings

were rejected and denied; conversely, the request for

expedited treatment by General Counsel of the National

Labor Relations Board was held appropriate by the Trial

Examiner’s Decision that issued on February 16, 1968

(Appendix D, infra, pp. A-7—A-18).

Thereafter, on March 17, 1968, this company filed timely

Exceptions to the action and legal determinations taken

by the appointed Trial Examiner of the National Labor

Relations Board (J. A., pp. 74-76). As provided under

Section 3 (b) of the National Labor Relations Act, the

Board delegated its powers in this matter to a three mem-

ber panel, who adopted in their entirety the Trial Exam-

iner’s findings, conclusions, and recommendations and held

in substance that the Petitioner had violated Section 8

(a) (1) and (5) and the National Labor Relations Act

(Appendix C, infra, pp. A-5—A-6) as amended. It there-

upon ordered the Petitioner to take certain affirmative

action which is synonymously reflected in the Trial Exam-

iner’s Decision (J. A., pp. 70-72).

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EEE . 2 A INE

= ee

Approximately one year later, the National Labor Rela-

tions Board applied for enforcement of its Order against

this company to United States Court of Appeals for the

Sixth Circuit and thereafter, in a per curiam opinion of

that Court, the Board’s application was granted without

modification (Appendix B, infra).

REASONS FOR GRANTING THE WRIT

The Court Below Has Approved Expedited Procedures

Now Used by the National Labor Relations Board That

Are Contrary to the Intent of Congress, Contrary to the

Act, and Contrary to the National Interest.

This Petitioner feels as though it has pursued its rights

before a local magistrate setting in a rural area of cer-

tain parts of these United States and has thereafter, been

treated to judicial consideration, procedures, and the same

due process at law that is often compared to an animal

indigenous to the Commonwealth of Australia. Although

Petitioner quickly recognizes that how it ‘‘feels’’ in this

matter remains irrelevant, that conversely, the issues

raised by this Petitioner effect not only it, but all other

parties who ‘‘consent’’ to have the rights of their em-

ployees expeditiously and peaceably determined. To ‘‘con-

sent“ to such a determination clearly is an objective of

the Act® and effectuates its purpose, as well as, those of

Congress“ and those who administer the delicate balance

between the great socio-economic interests of these United

States.

Petitioner submits that the National Labor Relations

Board would be the first io agree that to inhibit this

5 At is the purpose and policy of this Act .. to provide or-

derly and peaceful procedures for preventing the interference

by either (labor and management) with the legitimate rights

of the other.” 29 U. S. C., Sec. 151 (b).

6 Observe remarks of Senator Morse about, “refusal of a re-

calcitrant employer or union . . to consent.” Congressional

record, Senate, June 5, 1947, 93 Cong. Rec. 6611. ”

a

‘‘eonsent’? factor would produce manifold procedural

problems and burdens to the federal agency vested with

maintaining stability between labor and management.

Section 9 (c) (1) of the Act provides that upon a pe-

tition filed, a question of representation exists, the Board

must resolve it through an election by secret ballot. The

election details are usually left to the Board. The Na-

tional Labor Relations Board has asserted that said elec-

tions are conducted in accordance with strict standards

designated to assure that the participating employees

have an opportunity to determine and register a free and

untrammeled choice in the selection of a bargaining rep-

resentative.

Any party to an election who believes that the stand-

ards have not been met, may file timely objections to the

election with the Regional Director under whose super-

vision said election was held. In that event, the Regional

Director may as a situation warrants either make an

administrative investigation of the objections or hold a

formal hearing to develop a record as a basis for his de-

cision. If the election was held pursuant to a consent

election agreement authorizing the determination by the

Regional Director alone, the Regional Director will then

issue a decision on the objections which is final (Section

102.62 (a)).

Conversely, if the election was held pursuant to a stip-

ulated consent election agreement authorizing a determi-

nation by the Board rather than the Regional Director,

a subordinate agent, the Regional Director will then issue

a Report on Objections which is then subject to excep-

tions by the parties and by the decision by the Board.’

7 Board’s Rules and Regulations, Section 102.62 (b), 102.69

(e). The only possible means to assure determination of fact

and law by the Board and not by the subordinate Regional de-

12 (by. process is to “consent” under this rule, e. g., Section

102. ‘

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1

However, if the election was directed by the Board with-

out ‘‘consent’’, the Regional Director is required to

hold an initial hearing and an investigation of the issues

raised by the Petition as filed and thereafter, upon ob-

jections being filed, make a report on the objections, sub-

ject to exceptions with the final decision to again be made

by the Board, or secondly, dispose of the issues by issuing

a decision, which again is then subject to review by the

Board.®

It is remembered that the employees of this Petitioner

were involved in this election process in the year 1967.

It is reported® that 557,822 employees voted in Board

conducted elections during this period of time. During

this year, the Board conducted 7,882 elections among em-

ployees to determine their choice of a bargaining rep-

resentative. Seventy-Seven per cent of these elections

(6,324) were conducted upon a ‘‘consent’’ arrangement

among the parties.

The Petitioner submits that without a cooperative pub-

lie policy and lawful attitude of parties before the Na-

tional Labor Relations Board, that reflects mutual consent

to utilize its processes, a totally catastrophic procedural

and economic result will occur. It follows, therefore, and

the Petitioner submits that anything that deters from

such voluntary ‘‘consent’’ results in protracted circum-

stances that do not effectuate the policies of the Act, nor

further the national interest. ‘‘Arbitrary power’’!® when

experienced or identified gives rise to anarchy.

8 Board’s Rules and Regulations. Section 102.69 (e), Section

102.69 (e).

® Thirty Second Annual Report of the National Labor Re-

lations Board; fiscal year 1967, page 11 (G. P. O. 1968).

10 The only means an Employer can obtain judicial review of

an issue directed at choice of the bargaining representative is

to tacitly (and with premeditation, knowingly) violate the Na-

tional Labor Relations Act by refusing to meet and bargain with

the labor organization involved. In comparison, the Labor or-

}

—14—

It is lastly noted that of the 2,265 representation hear-

ings conducted by the Board in 1967, only 173 such hear-

ings were held concerning objections to conduct affecting

the results of said elections. 11

This Petitioner, by consenting to hold the election be-

fore the National Labor Relations Board, did so only on

the condition (and for the reason) that all questions of

fact and law would be determined by the Board and its

Congressionally ratified Members and not by a subordi-

nate official, the Regional Director for the Twenty-Sixth

Region of Memphis, Tennessee. Thereafter, no hearing

was afforded to these parties on timely objections filed.

Procedural error is compounded when the National

Labor Relations Board limited its perusal of this circum-

stance to consider only (1), the Employer’s objections,

(2) the Regional Director’s Report and (3) the Employ-

er's exceptions thereto (J. A., p. 34; Appendix E, pp. A-19

—A-21) without consideration or observation of any evi-

dence, testimonial or exhibitory, submitted to the sub-

delegatee.

Thereafter, a duly appointed Trial Examiner also pro-

cedurally refrained from evaluating evidence by confining

his determination to merely a judgment on the pleadings.

The fact that the Petitioner was denied a hearing in

this case, would be directly contrary to decisions issued

by other distinguished court of appeals. NLRB v. Capital

Bakers, Inc. (CA-3, 1965), 351 F. 2d 45; NLEB v. Trancoa

tion has absolutely no means to obtain review by the

fed eral courts under the Act and present Board procedures.

Power” is defined by Black’s Law Dictionary, West

— Co., 4th e 1951, p. 134 to be, Power to act

according to one’s own ially, applicable to power

conferred on an L officer who is not furnished any

adequate determining principle. Fox Film Corporation v. Trum-

bull, D. C. Conn., 7 F. 2d 715, 727.”

r —— — eT Se

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— 15 —

Chemical Corporation (CA-1, 1962), 303 F. 2d 456; Home

Town Food, Inc. v. NLRB (CA-5, 1967), 379 F. 2d 241;

Graphic Arts Finishing Oo. v. NLRB (CA-4, 1967), 380

F. 2d 893; Sonoco Products Corp. v. NLRB (CA-9, 1968),

399 F. 2d 835; Baush & Lomb, Inc. v. NLRB (CA-2, 1968),

404 F. 2d 1222. This procedure was thereafter expedi-

tiously adopted by the National Labor Relations Board

without question and apparently, confirmed by the United

States Court of Appeals for the Sixth Circuit without

comment.

In summary, it is therefore the Petitioner's purpose to

have such expedited procedure stopped in deference to

due process of law. The Federal Courts should not (and

in other circumstances do not) condone the use of arbi-

trary power by administrative agencies; secondly, the

party before the National Labor Relations Board should

not be required to intentionally violate the mandates of

the Act to secure judicial, if not proper administrative,

evaluation cf the issues raised below; and thirdly, this

matter results in a direct detericration of the “consent”

procedures which historically have proven to insure in-

dustrial peace among both labor and management, and

certainly to the benefit, and in the interest, of the National

Labor Relations Board itself.

The Petitioner therefore, respectfully submits that for

the above three reasons, this Petition for Writ of Cer-

12 This petitioner before court below pointed directly at this

defect in its submitted Answer to Application for Enforcement

of Order of the National Labor Relations Board and Cross-Pe-

tition to Review and Set Aside Said Order and thereafter, in its

brief submitted to the court. (This received expeditious response

from the appellate division of the National Labor Relations

Board by form of a reply brief raised in this regard.) The

thrust of the National Labor Relations Board reply brief as-

serted that “the Board’s rules entitled this company to obtain

Board review on the merits of the Director’s report” (reply brief

for the National Labor Relations Board, on application for En-

forcement, page 3). The record does not support the assertion

of the National Labor Relations Board in this respect either.

on wen

tiorari warrants due consideration, evaluation, and the

subsequent voice of this Court.

The Decision Below Is In Conflict With the Decision of

the Second Circuit With Regard to These Expedited Pro-

cedures Promulgated by the National Labor Relations

Board.

The Second Circuit Court of Appeals in Pepsi Cola

Bottling Company v. NLRB, 409 F. 2d 676 (CA-2, March,

1969) stated:

“The National Labor Relations Board has adopted a

rule against ‘relitigation’ which has the effect of deny-

ing to a litigant, in an unfair labor practice action,

review by the Board of decisions made by the Re-

gional Director in a prior representation proceedings,

even if that prior decision is at the very heart of the

unfair labor practice dispute . . . we find the Board’s

action pursuant to that rule unjustified in this case.”

The Second Circuit therefore refused to enforce an Order

of the Board by observing that the Company complained

that the Board never independently reviewed the Regional

Director’s conclusion on the issues raised rather it “simply

swallowed his decision into its own” (409 F. 2d at 678).

This Petitioner has been treated to an identical expe-

dited procedure which has, by the court’s acquiescence

and silence, been approved by the United States Court of

Appeals for the Sixth Circuit in diametric conflict to the

above decided judicial rejection of the Board’s expedited

processes. The Second Circuit articulately concluded that,

“Such defercnce to the Regional Director was not intended

by Congress. It was decided that the Board itself must

rule a litigant has committed an unfair labor practice” Id.

The record reflects that this Petitioner repeatedly re-

quested the Board and the Court below to require the

Board not to ‘‘shut off the parties rights to produce evi-

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4

<— We

dence or conduct cross-examination material to the is-

sues’’, See, National Labor Relations Board v. Indiana

and Michigan Electric Company, 318 U. S. 9, 28; 63 8.

395, 405 (1943) and NLRB v. Smith Industries, Inc., 403

F. 2d 899 (CA-5, 1968).

In this matter, the Board observed no evidence and

therefore, determined nothing. No testimony, whether

submitted by affidavit or through recorded transcript

before a delegated hearing officer, was observed by the

Respondent below. In this respect, compare NLRB v. The

Process Corporation, 412 F. 2d 215 (CA-7, 1969).

Briefly, the record below reflects that (1) no hearing

was ever conducted at any stage of the proceedings; that

(2) all issues of fact were determined on an ex parte

investigation where diametrically inopposite and con-

flicting evidence was presented by the parties; that (3)

thereafter, the Regional Director for the Twenty-Sixth

Region, clearly a subdelegatee, dismissed each and all of

these objections, and by necessity, making the credibility

determinations required concerning the relative assertions

of the parties before him; that (4) the National Labor

Relations Board reviewed not the evidence presented, but

rather its inquiry was directed only as to whether or not

substantial ( issues“ had been raised and demonstrated an

abrogation of its statutory responsibility to considering

only, The Employer’s Objections, the Regional Director's

Report, and the Employer’s exceptions thereto’? (J. A.,

p. 34 and footnote 1 thereon); that (5) upon submission

of the alleged unfair labor practice to a Trial Examiner,

again a subdelegatee of the Board, Petitioner was treated

to summary judgment on the pleadings with the finding

of the Trial Examiner that ‘‘it is clear that all material

issues of fact and law in this regard have been decided

by the Board’’ (J. A., p. 66); and that (6) although the

Board admittedly could not consider issues of fact’’

_

without evidence before it, it thereafter on May 17, 1968,

issued a mimeographed form Order which contains only

the relevant statement that The Board has considered

the Trial Examiner’s Decision, exceptions and the entire

record of this case and hereby adopts the Trial Examiner’s

findings, conclusions, and recommendations (J. A., p.

76); emphasis supplied.

It must be remembered that which the Board character-

izes as the entire record of this case actually con-

sisted only of the Trial Examiner’s decision (2) the Ex-

ceptions of the respondent and (3) the formal pleadings

presented to the Trial Examiner upon which he granted

judgment and no more. Clearly, the Board did not deter-

mine the facts because the facts (evidence’* and testi-

mony) were not presented to it under the expedited pro-

cedures that Pepsi Cola, supra, has now rejected.

It is this procedure that has caused conflict in the Cir-

cuit Courts and which this Petitioner hereby requests to

be resolved by the Court herein.

This Petitioner is not unmindful of the fact that this

Court has clearly determined that ‘‘in the absence of proof

by the employer that there has been prejudice to the fair-

ness of the election, such trivial irregularities of adminis-

trative procedure do not afford a basis of denying an en-

forcement to an otherwise valid Board Order.“ National

Labor Relations Board v. Mattison Machine Works, 81

S. Ct. 434, 435. The circumstance of this case do not find

the Petitioner making its plea below empty handed.

The company came forward with evidence that an em-

ployee discussing a memorandum distributed by the labor

organization shortly before the election was conducted,

said that he was going to vote against the Union, but

18 Even the Regional Director excluded documentary exhibits

presented to ry Ae dent’s objections (See Motion

of Respondent to Evi „J. A., pp. 59-60).

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—19—

after he saw the memorandum, he changed his mind. Ad-

ditional evidence was submitted that another employee,

again referring to literature distributed by the Union

stated, We got it, we photostated it, and distributed it

through the Union meeting. . . This is what really hurt

vou“ (J. A., p. 14). Such evidence was summarily dis-

regarded by the Board’s subdelegatee upon presentation,

and upon an ex parte basis, he rendered decisive credi-

bility findings in this respect.“

The Petitioner believes, and based upon the guidance

of this Court submits, that the National Labor Relations

Board is an agency with the duties and Constitutional re-

sponsibility recognized between the Civil Rights Commis-

sion as considered by this Court in Hannah v. Larche,

363 U. S. 480, .. . S. Ct. 1502, and the Constitutional re-

sponsibilities of the Labor Management Commission of

Inquiry of the State of Louisiana subject to this Court’s

consideration in Jenkins v. McKeithen, 89 S. Ct. 1843.

Therein Mr. Justice Marshall, upon delivery of the opinion

of the Court states: ‘‘The right to present evidence is, of

course, essential to the fair hearing required by the Due

Process Clause; citing Morgan v. United States, 304

U. S. at 18, 58 8. Ct. at 776, Baltimore and Ohio Railroad

Company v. United States, 289 U. S. 349, 368-369, 56 8.

Ct. 797, 807. That further, ‘‘we only hold that a person’s

right to present his case should not be left to the un-

fettered discretion of the Commission’’. Jenkins, supra,

86 S. Ct. at 1853. Therein, both Mr. Justice Douglas and

Mr. Justice Black concur with the majority by finding

that this Commission does not afford procedural protec-

14 The Board in its brief to the court below admits that if “A

Regional Director ignores material evidence submitted by the

objector, relies on conflicting evidence presented by another

party, or otherwise makes crucial factual determinations on an

ex parte basis, material factual issues may be raised and a hear-

ing is (Brief for the National Labor Relations Board

to United States Court for Sixth Circuit, pp. 23, 24.)

tion that the Bill of Rights provides and therefore de-

nies due process of law.

It is with interest that the Petitioner finds that dis-

senting Justice Harlan, Justice Stewart, and Justice White

also frame their evaluation of this agency of the state

of Louisiana in a context that supports this Writ for

Certiorari presented.

Specifically, the dissent in evaluating the Constitutional

protections required by the majority of the Court of this

state agency relate, ‘‘The Commission thus bears a close

resemblance to certain Federal administrative agencies.“

89 S. Ct. at 1858. However, the dissent distinguishes this

specific commission from being afforded the full scope of

due process by concluding that the agency ‘‘. . . plays

only a preliminary role designed, in the usual course of

events, to initiate a subsequent formal procedure in which

the accused will enjoy the full panoply of procedural

safeguards. For this reason, and because such agencies

cannot otherwise practicably pursue their investigative

functions, they have not been required to follow ‘adjudi-

cation’ procedures’’ Id.

Thereafter, and possibly more importantly, the dissent-

ing members of the Court evaluate the nature and Con-

stitutional responsibilities of the Federal Trade Commis-

sion and Securities and Exchange Commission; comparing

each again to the administrative bodies in Hannah, supra,

and the agency of the State of Louisiana.

Unfortunately, perhaps for the brief writer, nothing

was said concerning the Respondent herein, the National

Labor Relations Board and the Constitutional responsi-

bility it must affect to, and upon, the parties before it.

Conversely, the Petitioner submits that it is indeed for-

tunate and supports the requested granting of this Writ

for Certiorari, that the Court’s pronouncements concern-

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8

t

5 F 7

8

ing procedural due process of the National Labor Rela-

tions Board remain vague, if not absent entirely. Peti-

tioner therefore proposes such Constitutional standards

are ripe for consideration by the Court to the ultimate

benefit of the Respondent, of labor, of management, and of

course, the herein aggrieved Petitioner.

In summary, the Petitioner submits that because the

National Labor Relations Board has not actually consid-

ered questions of fact or the evidence presented, that its

Order is not entitled to judicial approval or enforcement,

and that the decision below remains in conflict with the

decision of the Second Circuit with regard to the expe-

dited procedures now promulgated by the National Labor

Relations Board.

CONCLUSION

For the reasons above expressed, specifically including

the conflict of Circuits and the area remaining between

this Court’s determination in Hannah, supra, and its more

recent decision in Jenkins, supra, the Petitioner submits

that a Petition for Writ of Certiorari in the circumstances

of this case should be granted.

Respectfully submitted

FOWLER, BRACKHAHN, YOUNG & PERL

NEWELL N. FOWLER

RICHARD A. BRACKHAHN

Memphis Bank Building, Suite 603

44 North Second Street

Memphis, Tennessee 38103

Attorneys for Petitioner

.