Petition for a Writ of Certiorari — Singleton Packing Corp. v. National Labor Relations Board

Supreme Court brief1970

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SUPREME COURT, U.S. , @ » a

Ottis pea Dap | US.

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= THE ef dunas 1970 |

Supreme Court of the Unit oD States, “cnx

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- OCTOBER TERM, 1970 ;

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; Pa . ii *.

SINGLETON PACKING CORPORATION,

: Petitioner :

eens vs.

NATIONAL LABOR RELATIONS ‘BOARD

a ee a a 3 ;

PETITION FOR A WRIT OF CERTIORARI TO THE- 4)

-*-UNITED STATES COURT OF APPEALS

| FIFTH CIRCUIT

FOR THE

~ JoHN C. BIERLEY —

Tampa, Florida Sees

Attofney for the Petitioner - -

of Counsel . "af

MACFARLANE, FERGUSON, ALLISON.

: & KELLY |

Hillsboro Building :

Tampa, Florida ares

oi HN ie Ne gles entle area | :

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Sm cccagmnieh | tc hoteemaete eal °

. . . .

4 i ,

“INDEX eae

gr , Page

THE OPINION AND THE JUDGMENT IN te °

‘ ee

“SY.

OMe A ee 1

JURISBICTION OF THIS COURT” eat. a aie ~ he

QUESTIONS: PRESENTED FOR REVIEW 2

CONSTITUTIONAL AND STATUTORY PROVI- ee

- SIONS ee ae , - Dnevae facade taal oo we ak wena a eee ie 3

STATEMENT OF THE CASE -.._-__-:, 4

REASONS WHY A WRIT OF, panel P

SHOULD BEGRANTED.. 11

_ CONCLUSION oe 24

~_ ‘ p ay - \ ; A

APPENDIX: s/

A—Opinion of the United States Court of

Appeals for me Fifth Circuit: - epee? k

4 B—Judgment of the United States Court: of”

) Appeals for the Fifth Circuit -.----_2 —/ A-13

C—Opinion of the Court.on Petition for Re- A

hagring and Petition for Rehearing en; banc _ A-14 -

G i

wit

“AUTHORITIES CITED

Came: °° Cosas Tage:

Excelsior Underwear, Inc., — . eee

156 NLRB 1236 (1966) -. > pega ERO 4, 6

es Heights Funeral Home, Inc. v. N, L.R.B.,

oss

N.L.R.B. uv. Ortronia, Inc. °

385 F.2d 879 (C.A. 5, 1967) .- 16, 92°

: Hone Town Foods, Inc., &/b/a Foremost Dairies as

of the South v. N.L.RB., :379 F.2d 241 (C.A.

5, 1967). 2 bi... | | 16, 17; 21, 22 |

' . Howell Refining Co. v. N.LR.B.,

F.2d 213 (C-A. 5, 1968)... 16, 22,

- New! York Handkerchief Maisifatiuriog ( Co. v. |

N.L.R.B.,114.F.2d 144, 148-149 (C.A. 7, 1940) .

N. ‘L.R.B: v. Central Dispensary & Emergency .

Hospital, 145 F.2d 852 (CADC, 1944), cert.

denied 324.UG. 847 (1945), “

380 F.2d 737 .(C.A. 5, 1967) 16, {t, 21,22”

N.B.R.B. v. Singleton .Packing Corporation, pes

418 F.2 275. (C.A. 0, 1969). . M ee a |

' N.L.R.B. v. Whittier Mills Co.,

111 F.2d 474 (C.Ae5, 1940) ..).

S. H. Lynch & Company, Inc. v. N.LRB.,” a ee es

«877 F.2d°558 (C.A. 5, 1967) "__'16, 17, 22

Sunoco Products Company v. NYRB., Poe

' 399, F.2d 835 (C.A. 9, 1968) - .. _. 16, 20,22

United States ‘Rubber Company v. N.L.R: B.,

», 373 F.2d 602 (C.A. 5, 1967) er 17, 18, 20, 22

ee Railway Co. v. Seaton Federation No. 40, f-

300 U.S. 515, 560, 57 S.Ct. 592, 605, 81 L.Ed.

. 789, 806-07 (1987) fF Bo ea ahh Dinah ee eed i

—)

as a

WO a

_ Administrative Procedure Act,. as amended, 60 .

Stat. 238, SUS SC.A. 56 et. seq.” ae

Sec. 552 - ae Sensi ea See a a

| Sec. 553 - a re oe ey etapa - 4

Judiciary and Judicial. Procedure Act, 62 Stat.

869, 28 U.S.C. : ee

Sec. 1254 een ee ck Oe

National Labor Relations Act, as soanded 61

Stat. 136, 73 Stat, 519, a USC, Sec... -151,

: ey Seq. | eS

See. 157. ee eee eee ce ner 2: evn er Peane a

at See. Gy ee eg

See. 159(e) (1). Ee eae ee: 4.14

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“IN THE ..

i Court of tlie United Stat

| OCTOBER TERM, 1970

. ‘SINGLETON PACKING CORPORATION,

: Petitioner” eee

z : ¥. %

vs. 7X

) NATIONAL LABOR RELATIONS BOARD.

Lea Respondent :

PETITION FOR A’ WRIT OF CERTIORARI. TO THE

UNITED STATES:COURT OF APPEALS . }

FOR THE FIFTH CIRCUIT. =,

’

-¢ wee a4

To the Honorable: Chief Neaties and the aaseiiéhe Justices

of the Supreme Court of the United States;

bet The Petitioner prays the Court for a Writ of Cert-_

iorari directed to the United States Court of Appeals. .

for "the Fifth Circuit, to the end that this Court may re-.

~ view a deciston which that. Court has rendered ina case .-

involving the above- named a And the Petitioner

ee shows to this Court:

THE. OPINION: AND THE JUDGMENT

IN THE COURT BELOW

The opinion of the Unjted: States Court of havi Oe:

for the Fifth Circuit has been printed in the official re-. - es

~ ports, and is cited as: 418 Fed.2nd 275 -(5th Cir., 1969).

It may be found in the following unofficial ripest: :

. 61 Labor Cases § 10,394 (1969). Both the Opinion and

_ . the Judgment - of the Court of nae are’ — in

_ . the Appendix to this Petition,

r SS Tr er ; -

| | This case came to ae Court’ of Appeals. upon an

: Application For Enforcement Of An Order. of fhe: et

ional Labor Relations Board. a

JURISDICTION OF THIS COURT

The Gibiden of the Court of Appeals was rendered

on October 13, ‘1969. The Judgment of that Court is

dated November 5, 1969, and was entered by that Court

on that date. An Order ‘denying Petition for Rehearing fs | :

and Petition for Rehearing En Banc, was ‘rendered on

April 30, 1970. This Petition is timely filed before the.

date of June 18,1970 set by the Court of Appeals as the ©

date before which a Petition should be filed. Jurisdiction

to.review the Judgment of the Court of Appeals is con-

ferred on this Court by the ‘ai ease of 28°U.S.C.

§1254.

QUESTIONS PRESENTED. FOR sasha

- “ih: THE, SECOND ELECTION CON -

. DUCTED BY THE N.L.R.B. WAS UN-

eciceasik \TIV E- me

ATT). THE BOARD’ S INVESTIGATION OF

THE COMPANY’S OBJECTIONS RE-

' LATING. TO THE ACTUAL CON-

*- DUCT OF THE SECOND ELECTION

' WAS INSUFFICIENT TO ENABLE >

‘IT TO FAIRLY RULE ON SAID OR-

JECTIONS

(IIT). “THE BOARD | IMPROPERLY RE- .

| _ FUSED TO HOLD HEARINGS ON

THE COMPANY’S OBJECTIONS TO

THE ELECTION: AT ANY’ TIME

_ DURING THE | PROCEEDINGS ©

‘CONSTITUTIONAL AND STATUTORY PROVISIONS

+ INVOLVED .

| Portions of the Constitution of the United States.

and’ of the National Labor Relations Act pertinent ¢ to . .

this case are as follows:

e741):

* “amp

7" eee ie

ideale ‘shall make no aw «,. . abridging the

freedom of speech .. . or the: right. of thé people

peaceably to’ assemble. . *

First: Amendment to the Constitution

of the United States © .

“No person shall be . -dupeives of life; iberty,

- or property, without ies process of law. «.

- Fifth Amendment to’ the Constitution

of the United States

’

| “iemptayees shall have the right . ath join or

. assist labor. organizations. . : and to engage in

other concerted activities. .’. and: shall also have

the nar a ‘to refrain from ‘any. or all of such activi- .

ties.

National Labo# Relations Act, as ited:

61 Stat. 136, %3 Stat. 019, 29 U.S.C. : Sec. 157

“Whenevér a Petition has been filed in accordance ,

with such regulations as rmay be prescribed by the

‘Board... by a group of Employees. : . alleging —

. that a substantial number of Employees, ... wish

‘the results theréof. - _ ~

_to be represented for collective bargainins. .. the

Board shall investigate such Petition. . . it shall.

direct an election by sacret ballot and shall certify

N ational Labor Relations Act, as amended, |

61 Stat. 136, 73 Stat. 519, 29 US.C., Sec.

“159(c) (1). , *

° sa ”

anne °

' (5) Upon the filing with, the Board by 30 percentum

or more of the employees in a: bargaining unit

covered by an Agreement. . . of a Petition allezing

that they desire that such authority be rescinded, =: _

the Board shall take a secret ballot of the —'S

ees in such unit and certify the results thereof .

National Labor Relations Act, as amended,

61 Stat: 136, 73 Stat. 519, 29 U.S.C.,, Sec.

. 159 e( be

. >».

STATEMENT OF THE CASE

On April 4,. 1966, the Union' filed a petition (TR. 1)?

for an election in an appropriate unit of Petitioner's -

employees | at its seafood processing plant in Tampa,

Florida. Thereafter, _pursyant to a rule! promulgated by —

the National Labor Relations, Board in Excelsior Under-

wear, Inc., 156 NLRB 1236 (1966), the Regional Direc-

tor,-12th Region, directed employer to furnish to-the

‘Regional Director, for distribution to‘the Union, a list

of names and addresses of all its employees in the stipu-

lated appropriate unit: It should be noted that this took

- place approximately. 3 months after the issuance af the

‘Excelsior decision, and before any court had ruled re-

lative to the validity of the Board’s “names nd addres-

. ses” rule and before the Board itself had ¢larified nu-

merous questions regarding interpretation of the rule; .

nor had any court ruled on the issue af whether said

rule was validly promulgated pursuant to the require-

ments of the Administrative Procedure Act.? Petitioner

advised the ne Director through its attorneys that

' Local 104, Hotel and Restaurant Employees and saan .

International Union, AFL-CIO.

2 Citation to Transeript of Record.

3 Administrative Procedure Act, as amended, 60 Stat. 238, 5

“US.C,A. 56 et seq., Sec: 552, 553. -

it had no basic objection to furnishing the Board with

such list; however, it requested some assurance from

the NLRB relative to.the use of the jist. The Regional

Director refused to make any sort of -an arrangement

in this regard (TR. 7 and TR. 54-57). The Regional Di-

rector did not choose to subpoena the list and on May 9,

1966, pursuant to a Stipulation For Certification Upon

Consent Election, a secret ballot election among Peti-

tioner’s employees in the stipulated unit. -was con-

ducted. The Union lost the election (180 employées

voted for the Union, 237. voted against it; there were 30

challenged ballots). The Union then filed objections al-

leging that the election should be set aside: (TR. 6-7).

Investigation was held relative to the.merits of the ob- 7

jections to the election. At this point in the proceedings -

and on numerous occasions thereafter, Petitioner re- ©

‘quested either that the Regional Director seek. to sub-

poena the list and thereby subject the Excelsior issue |

‘to judicial review or that a hearing be held relative to

the Excelsior issue so that a. full record could be de-

veloped relative to the employer's position on this highly

controversial subject and other facts at issue: Petitiqner

submitted a petition signed by its employees (TR. 19-

' 28) and several letters from businessmen in the Tampa

area (TR. 10-18) reflecting the type of, evidence that it

sought to present at the hearing. From this point for-.

ward, thé Regional Director, and‘ later, other official

‘levels of the National Labor -Relations Board, refused

on several occasions to conduct a hearing. Thus, from

the outset, employer was prejudiced by being unable to

present a full and complete explanation of its position,

both as to the Excelsior doctrine and: other objectiqgg

which it asserted throughout the proceedings. :

4 The unit ccnsisted of all production and maintenance employees

' employed by the Employer at the Tampa, Florida ‘plant, located at

- 50th Street and ACL Railroad: excluding all office clerical employ-

ees, guards, watchmen, professional employees, and supervisors as

defined in the Act. ©

Cy nie . ,

’. Following investigation relative to the merits of

the .Union’s objections to the election, the . Regional

Director recommended that the election be set aside

‘on two grounds: that-(1) the Company refused to fur-

nish the Regional Director a list of names and addresses sn

of all eligible voters as required in-Eacelsior Under- |

wear, Inc., 156 NLRB 1236 (1966); and (2) that com-

pany pre-election misconduct interfered with employ-.

ees’ free choice in the election (TR. 53-77). On August

24, the NLRB set the first election aside solely on the

one ground of Petitioner’s refusal to furnish the Re-

. gional Director a.list of names and addresses. The

Board withheld ruling on the allegation of pre-election

misconduct (TR. 90-93). A second election was sched-

uled (TR. 1). The Company bélieved the Excelsior Rule

to be invalid since at this point no Court had yet ruled-on-

_the merits of the Rule nor the manner in which’it was

promulgated. At this juncture,® the Company was faced -

with the prospect of either participating in an election

which it. knew: the Board would set aside (assuming

that it again won the election) or refusing to participate

in the hope that the Board would then subject the Ex-

celsior issue to litigation by’subpoenaing the list. Peti- |

tioner chot e hot to participate in any way in the elect-

-ion (TR. 114-115). Throughout this proceeding, the |

Board continuety has referred to Petitioner’s “refusing |

- to. cooperate. with the Board”. This subject of coopera-

ion was a “one way street” as far as the Board was

coycerned in this particular instance. The Company was

never able to obtain the Board’s cooperation in obtaining

or awaiting a judicial’ ‘determination of the Excelsior

-igsue/ prior to holding a second election® or in investi-

gating the second election.

oun 24, 1966.

“8 See TR..161 para. 24 in this regard.

< s . ‘ . oe

On October 13, 1966, the Board conducted a second

‘election. One ‘hundred and fiftysone (151) persons

voted. One hundred and thirty-six (136) voted for the

Union. One (1) voted against the Union. There were

fourteen (14) challenged ballots and one (1) baliot

was void. (TR. 109). The yoters’ constituted approxi-

mately one-quarter (14) of th® employees)in the unit

on the day of the election. Just’ prior to bi election,

approximately four hundred (400) employees had ad-

- vised the Company in yriting that they did not want ©

their names or addresses given to the Union (TR. 100-

101).

The Company filed. timely objections to the elec-.

_ tion, alleging that the election should be set aside ‘for

_the following reasons (TR. 109-110): ~

(1) The first election was improperly sét aside

' since the-Company was not required to comply

- with the allegedly invalid Hecelsior rule. ©

(2) An insufficient number of employees voted in

. the-second election to consider the vote a re-

presentative sample of all the emplovees- in’

the unit.

(3) The Union engaged in pre-election coercion »

and threats of physical violence and job loss

for the employees. i"

(4) Certain ineligible employees voted in the eles.

‘ -* ton. . | as

(5) The election was held in an unsuitable place,

- Where a Union rally had been held the ‘night

‘before-the eleetion——— | -- -—-—

_ (6) The Board should not have held.a. second elec- 3

‘tion but, instead, should have sought an injunc-

_ tion in a Federal District Court to compel the

Company’s production of the Excelsior list.

- =“ :

(7) The totality of conduct gnd_ events set forth -

. above, effectively interfered with the fair and.

“proper conduct of the election.

Thereafter, the Regional Director conducted an in-

véstigation of the issues raised by the objections. The

‘parties were given an opportunity to submit, written

evidence in Support of these issues, but no hearing was

“conducted although numerous requests were made by

~, :

the employer for a hearing. Petitioner was uneble to —

‘question Union adherents relative/to their involvement

. . In acts of misconduct’ and coercion, for fear that “such

interrogation would give rise to unfair labor practice *

charges, and because of: the unavailability of many non- .

; employee adherents and business agents,

Following the election the Regional Director con-

ducted a cursory investigation® into Petitioner's ob- .

jections.. Pet?tioner submitted | ‘factual. allegations to

support its objections. (TR. 100- 108). The Region’s at-

titude throughout this investigation evidenced an ob-

“ vious desire to want to approve the second election and

certify the Union if at all possible. Frankly speaking,

.the Region appeared irritated: by Petitioner’s non-

compliance with the Board’s Excelsior Rule. Peti- °

tioner asserts that the tone of the record. supports this.”

ny questioning | of employees (if questioning actually

tédok place) relative to Petitioner’s allegation of pre-

. election threats and coercion, unsuitability of the elec-

tion site and other improprieties, was done in privacy

without: the ‘attendance or notification of Petitioner’s

attorneys. Petitioner was never advised of the result

of such irfvestigation or that any investigation was.

conducted, other ‘than a conclusive statement relative

_ to the fact that the evidence it submitted was “appar-

ently isolated” (TR. 122). Petitioner ‘continually re-

quested a hearing, to no avail. In short, it can be said

that an investigation was held in form but not in fact...

7 See the 5th Circuit’s observation at page 281 (Appendix page

16) of the _— below.

On N enter 25, 1966, the Regional Director issued

his Report On Objections- To Second’ Election and Re-~

commendations To The Board (TR. 108) ruling against

Petitioner on all objections. On. December 22, 1966

the Company filed with the’ Board its exceptions to the

‘ Regional Director’s report (TR..128-133). The National ~

._Labor Relations Board on February 24, 1967 issued its

_Supplemental Decision and Certification of Representa-

tive (TR. 133-134) in which it adopted the Regional Di-

rector’s report and certified the Union as the bargaining

representative of the Company’s employees. |

The Union, by telegram dated February 28, 1967,

requested the Company to bargain (TR. 139). By letter

to the Union dated March 2; 1967,’ Petitioner replied.

* to the Union’s request for bargaining by stdting that

i disagreed with the decision and certification of the

Board; that it continually had had a good faith doubt

that the charging party ever represented a majority of

the Company’s employees; that’ its position on the

varjous issues involved had. been stated in pleadings

submitted to. the ‘National Labor Relations “Board: and

‘that if necessary it intended to obtain judicial review

of the matter (TR. 139). The Union thereafter filed an

unfair: labor practice: charge against Petitioner alleg-

ing that Petitioner had refused to bargain with it in

violation of Section 8( a) (1):and (5): of the Act. A

Complaint based on this charge was issued by the

Regional Director on March 31, 1967 (TR. 135-140). On

April 10, 1967, the Company filed its Answer, in which .

it admitted its refusal to’ bargain with the Union, but

contended that the Union was improperly. certified by

the Board (TR. 148, 151). The General Counsel ‘then ,

_ moved to strike parts of the Company’s Answer and

for Summary Judgment on the ground that the only

issues raised by the Company’s Answer had been de-

’ cided in the ‘underlying Representatign Case, afid could

not be relitigated i in —r Unfair Labor r Practice proceed-

: : Ps

ee ae

ing (TR. 149-150). This motion was por nre sin a Trial

Examiner. The Company then filed an Opposition to the

General Counsel’s Motion (TR. 151) together with an —

: affidavit (TR. 154) of John E. Duggan, the ompany’s

Vice-President, in support of its Oppagition, in whieh

it asserted as justification for the Company’s fefusal to

bargain, that the Second. Election. and Cegpificatiort of

the Union was invalid. Petitioner reiterated its request ©

for a hearing (TR. 151- 154), and therein, and.in Mr.

. Duggan’s ‘Affidavit, set forth numerous allegations rela-

tive to facts supporting its objections about which it

sought to adduce testiniony at such a seid are 151-

. 162):

On June oT, 1967, the Trial. Siceciinen ‘aaianit his de-

cision granting the General Counsel’s Motion For Sum-

‘mary Judgment (TR. 176-186).

‘The National Labor Relations Board affirmed the

Trial Examiner’s Decision granting the Motion for Sum-

mary Judgment; found that the Company had violated .

Section 8(a) (1) and (5) of the Act; and ordered the

Petitioner to. cease and desist from unlawful conduct

[there was no finding of any violations independent

of the refusal to bargain]; to post appropriate notices;

and to. — with the Union upon demand (TR. wig

191). }

Petitioner advised the National Labor Relations

- Board that its position was. that the Board’s Order |

was based on’ invalid premises and procedures; where-

. upon the Board filed its Application for. Enforcement ,

' of an Order with the United States Court of =

for the Fifth Circuit: — ;

_ The Court of Apieais entered a Judgment entore-

ing the Order of the Board. |

‘ .

oe x |

* a 7

REASONS WHY A WRIT OF CERTIORARI

~ SHOULD, BE GRANTED

ae & - 1. : : ;

THE DECISION BELOW CONFLICTS WITH.

THE DECISIONS OF OTHER COURTS OF

_ APPEAL AND QF THE UNITED STATES :

SUPREME COURT AS TO THE PROPER

INTERPRETATION OF THE 'N.L.R.A.,, 29

U.S.C. SEC. .159(c)(1) RELATIVE.

MINORITY ELECTIONS. .

Section 159 ( Cc) provides that the National janes

_ Relatigns Board shall have the authority to determine ~ . -

_ the representational status of a petitioning labor organi-

zation. This has been ‘interpreted to allow the Board to

validate certain minority elections. Previous United ©

' States appellate cases: Virginian Railway Co. v. System

Federation No. 40, 1937, 300 U.S. 515, 560, 57 S.Ct. 592,

605, 81 L. Ed., 789-07; N.L.R.B. v. Whittier Mills

Co., 111 F.2d.474 (CA. 5, 1940) ; New York Handker-. —

_ chief Manufacturing. Co. v. N.L.R.B., 114 F.2d 144 (C.A.

_ 01940); N.L.R.B..v. National Mineral Co., 134 F.2d-424

(CA 7; 1943) cert. denied 302° U.S. "153; N.L.R.B. v.

Central Dispensary & Emergency Hospital, 145 F.2d

- 852 (CADC, 1944), cert. denied 324 U.S. 847 (1945); re-

viewing these NLRB cases have established that for\a

valid representational election to exist, it is clear: that -

one of two factors must exist in a case, namely thatat ~

least 40% (a large minority) of the eligible voters voted .

in a given election, and/or there were substantial concur-

rent unfair labor practices which influenced.the Court.

P| careful review of the récord in the instant case, reveals

"that. it can be distinguished from all of these previous

" cases, since neither of these two factors is present in

respect to the election involved. First of all, the total

__ participation herein was only about 27 %. It seems ‘clear

electorate.

eS ied

and only reasonable that at some point in a proceeding | |

-. “the number voting becomes too small to be deemed to.

have any sort of controlling effect upon a givén

ed is

4. _ “Secondly, and most important, there.is absolutely

aad allegation or finding that any unlawful ‘conduct.on

the part of the employer herein, contributed to the snvall

’ turn out in the election. No unfair labor practicé charges

making such allegations were ever filed. Although, the

Regional Director, in his Report On bjections To Sec-

ond. Election, foun@ that the Employer wamrespgnsible ’ P

for the Small voter turn éut, neither tha Regional Di-*

rector, the Trial Examiner, the Beard, nor the Court: of

Appeals made any finding that the’ ¢ Employer had vio-

lated the Act by openly stating its p position cortcerning’..

- *the EF xcelgior Rule or by reqnesting its Employees. not

to participate in the Second Election sdlely.. for. that |

— legal _reasen- (TR. 118-119}, This would seem-to be a.

First Amendment right .of Employer. In its decision _

below, the Court seemed to‘equate any criticism or op-

position. to the ‘election by the Company as amounting

to .an “undermining” of the representation proceeding.

Petitioner submits that by merely stating its legal posi-

tion to its Employés and requesting them for that rea-

son alone not to participate in the election, the Company

did not engage in the sort of activity confronting Appel-

late Courts in other cases (all situations involving fla-

grant unfair labor practices), where less than 40° of. the ©

ca electorate voted and eléctions were found valid: Peti-

tioner submits that the Court and the Board meer al

havé viewed the situation from the Company’s positi

-in that it was faced with a situation w here the Ufiion

had lost the First Election; the First Election had been,

set aside solely on the basis 6f the non-submittal of the —

employee list pursuant to the as yet non-judicially vali-

dated Excelsior Rule; rac Board demanded a Second —

ui %

- ~~

Election on: the yon basis of its Excelsior heap ruling: 7

affd the Company was faced with the. prospect that wih

or draw, the ‘Second Election ‘would also be. ‘set aside a

for non-submission of the’ Excelsior list.. ‘Petitioner sub- -

'.. mits that its action’ in the context of ‘these facts was -

not sufficient to’ warrant: ‘the certification’ of the Union

_by application of the minority election rule; and that -

-- the: rule Was, not applied consistent with ifpeerlens, ;

\Ce ane Fee =

¢ ‘An additional consideration, cited in Petitioner's

BrieKto. the’ Board and ‘the ‘Court, edricexns. the fact that —

Lit was-clear from si le mathematical: computation that

be ak least 355 eligible employees did not vote in the Second _

«Election. This is almost the niariber (400) af Employees

3 “wHo had given individual written instructions to the

Employer at ‘about ‘that time .requesting that their

names not be'turned over to the N.L.R.B. to be ‘made

available to ‘the Union or ‘any othe er party’ (TR. 100).

. +f Since the vast majority of the Unit employees were of —

‘this common view, it is logical to assume ‘that they were ~

sympathetic to the Company’s position that the Excel-

sior list should not be released ta the Union. Moreover,

their sympathy with the Company's positidn undoubt- -

* edly was one of the principal factors which prompted

‘them to stay away from the Second Election. Attesting

to this is the fact that no charge, allegation or finding

' of Company intimidation .prior - the pecond Election

was ever r made.

Now, although” the Company was incorrect in. its

3 position concerning ‘the validity of the Excelsior Rule, -

this does not change the fact that.a vast majority of the

_ Employees believed in the Company’ S position, and un-

doubtedly thought that the Second Election was invalid.

Should they, who are blameless, now have a. Union thrust |

: upon them which was voted in- by only 27% of the unit

a employees? It would séem to be Just as wrong to force

=) ae

a Union upon a majority which does not want Union rep-. |

resentation, as to deny Union representation to a major-

-ity which desires such representation..

A lpgical and practical solution is to call for another

election. To hinge a decision here‘n on the estoppel prin-

cipal would fail to take cognizance .of the fact that it is

the unit of Employees, rather than the Employer or

‘Union, which should have the ultimate decision of

whether they want Union representation. No amount of

fault finding with respect to the circumstances surround-

. ing the Second Election can create a logical basis for a

positive answer tafhe all important question: “Was the.

election truly representative?” Under the circumstances

of this case,.and particularly in view of the results of

the First Election, the fact that more than 70° of the

eligible employees did not.vote in the Second Election

. cannot be attributed to-indifference, neglect, or fault on

their part. If the Union is now thrust upon them without

the opportunity for another election, the underlying

premise for such a course would only be to penalize the

| employees and employer alike because the latter choose

to test the validity of the Excelsior Rule. Seemingly, no

‘ benefits would accrue to-the Union if it is certified, and

_ in reality it only ak tiara a small minority of the Em- -

~ ployees.

Review of the “minority election” rule is. im-

portant to resolve the conflict that now exists’ between .

this decision, validating a small minority election with

no accompanying unlawful or coercive activity, and the

decisions of this Court and other Circuit Courts. °

Evidence of Congressional intent and evaluation of

. the lack of union support by even 30 per centum of the

-electorate is evidenced by Section 159(e) (1)° of the

National Labor Relations Act. (In the instant case, there

“~. 15

was a possible 70 per-centum léck of. support. ) Such an

unreasonable and unrealistic apie should not be °

allowed to survive by this Court. . /

» re

THE DECISION BELOW. ‘RAISES SIGNIFT- ,

GANT, PROBLEMATICAL, AND™RECUR-

RING QUESTIONS CONCERNING THE

RIGHT OF CITIZENS TO A [EARING

BEFORE ADMINISTRATIVE, AGENCIES. .

As will’ be seen below, there is much diversity be-

tween circuits and even within the Fifth Circuit relative

to this question of the right to a hearing. Recognizing

this problem, the National Labor Relations Board, in

. the instant case, in a Petition dated March 17, 1969,

to the Fifth Circuit requested an. En Banc Hearing

to resolve a conflict within the’ Circuit relative to. when

a hearing is required. Petitioner reiterated the Board’s

request in its Petition for Rehearing. Both requests

were denied. The Court did respond to the Board’s.

earlier request for consolidation of several cases with

the common.question of the right to a hearing in issue

for oral argument, and ordered five cases with this

common issue to be heard at the same time by. the

same three Judge panel. Although oral argument im the

Fifth Cireuit on the five cases was conducted on the same

date, the Court decided the individual cases separately

and in‘announcing them at different times, did not refer -

to the fact that they were heard together or put particu

lar emphasis on comparing the issue of the right to a

hearing vis- a-vis the particular cases involved.

Petitioner suggests to the Court that a careful an-

alysis of the cases decided by various Circuits, and with-

in the same Circuits will reveal much confusion, contra-

diction, and illogical hair splitting, relative to this’

question’ of a right to an administrative hearing.

ar. a aa

See, for instarice; Howell Refining Co. v. N.L.R.B., 400

F.2d 213 (C.A. 5, 1968); Sonoco Products Company v.

N.L.R.B., 399 F.2d 835 (C.A. 9; 1968) ; Heights Funeral’

Home, Ine. v. N.L.R.B., 385 F.2d 879 (C.A. 3, 1967) ;:

_ Home Town Foods, Inc., d/b/a Foremost Dairies of the

South v. N‘L.R.B., 379 F.2d 241 (C.A. 5, 1967); N.L-R.B.

-v. Ortronix, Inc., 380 F.2d 737 (C.A. 5, 1967); S.H. Lynch .

& Company, Inc., v. N.L.R.B,, 377 F.2d 558 (C.A. 5,

1967) ; United States Rubber Compayy v. N.L.R.B., 373

F.2d 602 (C.A. 5, 1967). .

Petitioner feels that while differences may always .

be found between individual cases, that when the cited

cases are compared with the instant case, there is not

sufficient difference between them to indicate that in

‘those cases, hearings should have been ordered, and in

the instant cage, a hearing denied. .

In esserice, the Company’ 8 position is that its ob-

jections to the election were improperly investigated and

rejected by the Board, and additionally, the Board's

_ refusal to grant a hearing, either during the representa-

tion proceeding or during the Unfair Labor Practice

proceeding relative to its objections, constituted a denial

of due. process of law. in contravention of the Fifth

Amendment.

The National Labor Relations Act entrusts the con-

dict of representation elections to the Board. It has been

recognized that the Board must have a “wide degree of

discretion” in controlling and overseeing the election

process. Inherent in this grant of-discretion is the con-

cept that the Board will not abuse this grant and will see

that the rights of citizens are carefully observed. In-

creasingly within the last decade,.the Board and ‘other

administrative agencies have met with public criticism.

‘Some of this criticism is no doubt due to the controver-

sial substantive nature of the economic sphere that is

_ being regulated. On the other hand, Petitioner would

ORAS Saw ee ii eae

submit that a substantial amount of this criticism is as’

much attributable to the procedural conduct of adminis-

trative agencies, as to the content of their subsequent

decisions. ae

' Referring now to the particular fadtual situation at

issue, Petitioner submits that the Board abused its dis-

cretion in not: at any time convening a hearing during the

course of the Representation and Unfair Labor Practice

proceedings; and, in the aftermath of a Second Election,

in not conducting a proper investigation relative to the

Employer’s objections to that election. There is a limit

to the exercise of the Board’s discretion: United States

Rubbex Company v. N.L.R.B., 373 F.2d 602 (C.A. 5,

1967) ; Home Town Foods, ne. d/b/a Foremost, Dairies

of the South v. N.L.R.B., 379 F.2d-241 (CAS 5, 1967) ;

S.H. Lynch & Company, dae. v: N.L.R.B., 377 F.2d 588

(C.A. 5, 1967) ; N.L.R.B.%. Orthroniz, fae, 380 F.2d 737. -

(C.A. 5, 1967). The Board has admittedly developed

standart oe guidelines to identify the showing neces-

sary to erturn an election. The objecting party

must produce specific evidence that an election was im-

properly conducted or that facts attending the election

warrant setting it aside. Respondent produced such

evidence (TR. 100-108). Respondent’s problem, in this

particular instance was that it could not adduce or

present more evidence to the Board (other than by in-

dicating its source or ’ indicating the evidence that Ré-

spondent would elicit) because the Board continually de-

nied Respondent a hearing. The Bogard stated in its Brief

to the Court that there is a “heavy” burden placed on

the Company to show that an election is improper. The

‘burden grows heavier every day as the Board i increasing-

ly relies on its Summary Judgment procedures to deny -

hearings in Representation Cases and subsequent Unfair

" Labor Practice Cases based on refusals’ to bargain.

N.L.R.B. v. Ortronix, Inc., 380 F.2d 737 (C.A. 5, 1967). -

It is difficult to argue on the basis of the eG

record before the Court, whether or not the Board should

have set aside the Second Election on the basis of the

threats, coercion, choice of election site, and other factors

bearing on the outcome of the second election. Petition-

er’s position is that by not convening a hearing and giving

all parties to the proceeding an opportunity to present

and adduce evidence relative to the various objections,

including the opportunity t@ subpoena and cross ex-

- amine Union officials and Union adherents among the

Employees, that the Board did not\have before it suffi-

cient evidence relative to the Company’s position to have.

been able to fairly rule on said objections, United States

Rubber Company v. N.L.R.B., 373 F.2d 602 (C.A. 5, -

"1967). Thus,. when the Fifth Circuit affirms the Board’s

decision generally to the effect that Petitioner presented —

insufficient evidence, or that the evidence presented did

not affect the election, it does so after the Board effect-

_ ively prevented Petitioner from fully developing the

record in this respect. Petitioner submitted two employee

affadavits (TR. 104-107), which certainly reflect an ex-

tremely aggressive attempt by Union adherents to in-

_attempt hair-splitting arguments in regard to the intent

of these individuals (which could have been ascertained .

by an examination under oath) , but asserts that conduct

of the sort described in the Affidavit seems certain to

have affected the election to some degree. If a hearing,

had been held, the Company would have been able to

question under oath individuals like Ethelene Allred,

Dominga Morejon, Delores Bernardez and others, in-

cluding Union officials. In ‘tthe course of the submission

of evidence in support of Employer’s Objections To Con-

duct Effecting Outcome of Second Election ad

100), Respondent requested that agents of the'Wational

Labor Relations Board interrogate these individuals

(and other individuals whom they might name) relative

to the coercion and threats that did exist .(TR. 98). At

; that time, employer had~been informed by its super-~

visors that a number of its individual employees were _

subjected to similar threats of harm and job loss, but

that said individuals were afraid to tell the employer -

about these situations or identify the Union supporters

that had made such threats: because of fear of reprisal

(Ibid.). Employer advised the NLRB of these allega-

tions, since this would. require interrogation of its em-

ployees (TR. 100).

~* Petitioner presented an affidavit and photographic

“evidenee of the Union activity to. the Board at this time

reflecting visible evidence of injury to employee White,

which certainly was “specific evidence” of violent activ-

ity on the part of an alleged Union adherent (TR 102-

104) . The Regional Director never replied to Petitioner’s

_request. The Regional Director’s report pertaining to the

objection relating to threats (TR. 122) contains as brief

~ a coverage ‘of the subject matter. involved as it would

have been’ possible to present. Evidence of the Regional

Director’s lack of interest in finding evidence to support

Petitioner’s objections is the fact that at no point in his.

_ discussion of these objections in his. report (Ibid.) did

‘he mention the fact that the employees. making the

threats were Union adherents; nor did he mention that

adherent; nor did he mention that employee Alfonso had

to have her telephone disconnected’ because of threats; ._ |

- nor did he mention that Union adherent Bernardez had

told Alfonso that the Vice President of the Union wante

to come by her house (in the context of these threat

and coercion); nor did he mention the threatened bomb-

ing by Union adherent Morejon; nor did he mention the

fact.that employee Alfonso’s automobile’s window was

broken with rocks while sitting outside her house in the

context of all of the above (TR. 102-107). The Regional

Director stated in his report that ‘“‘no evidence” was pre-

7 20°

sented. during this investigation that the employee mak- ~

ing such threat wes acting as an agent for the Petitioner.

Agency can only be proven with facts. Had a hearing

been held to afford Petitioner an opportunity to question .

the Union adherents involved, it is quite possible that.

facts sufficient to -constitute:an agency ationship

could have been elicited. Sunoco Products Compdny v.

N.L.R.B., 399 F.2d 835 (C.A. 9; 1968). Certainly, the

allegations in the Affidavits constitute more than “no

evidence” of agency. United States Rubber Company v.

N.L.R.B., 373 F.2d 602 (C.A.'5, 1967). The Regional Di-

rector engages in hair-splitting when at the same point

in his report (Ibid.) he states that the threats that were

_made were to require the witness to vote in the-election

and not how to vote.” In Paragraph 2 of Exhibit E (TR.

106) affiant stated that Morejon “raised a peeling pan .

in the air and threatened to hit me with it when I again

said I would-not join the Union.” In Paragraph 3 of the

Exhibit, affiant stated that employee Allred was. after.

her for several weeks before the election to try to get

her to vote and stated that she was mad at her for being:

for the Company (Ibid.). Shortly after this, Allred ‘at-

tacked White in her home (Ibid.). These affidavits when

. fairly considered clearly indicate, as a minimum, that at

least some effort was being made by someone to get em-.

ployees-to vote, and that they more than preferred that

theyvote for the Union. Again, without a hearing and ~

an opportunity to question the individuals involved, and

possibly to question .other individuals whose names —

might be elicited during such protected interrogation,

Petitioner was unable to produce more evidence to

- support its objection. Sunoco Products Company v.

N.L.R.B., 399 F.2d. 835 (C.A. 9, 1968). The Regional

Director stated in his report that the threat was an

“apparent isolated” incident (TR. 122). This use of the

word “apparent,” in itself, indicates that the investiga- ;

tion conducted by the Region was one in form rather

“21

than fact. If the Region had, in fact, conducted an ex-

_ tensive investigation as requested by Petitioner (TR. 98

"and 100) and had indeed determined, that the incident

was isolated, it could have made such a statement. and |

would not have had to hedge with the word “apparent.”

Petitioner would’ contend that in fact the Region’s A

‘ investigation in regard to the objection involving testa

_ was cursory in nature. The Regioris merely reviewed the” :

evidence submitted by Petitioner and did no more. Again,

the Petitioner cannot prove this (nor has the Board dis-

proved it) because Petitioner was not afforded an op-

portunity to independently adduce these facts in the

course of.ahearing.. |.

Petitioner would contend that the cofcept of due

process inherent in our Anglo-Saxon judicial system re-

quires that parties to judicial and quasi-judicial proceed-

ings be given an opportunity to appear and present their

positions relative to the particular points in issue in a

given situation. This is a very broad general rule. Home

Town Foods, Inc. d/b/a Foremost Dairies of the South ;

v. N.L-R.B., 379 F.2d 241 (C.A. 5, 1967). Administrative .

agencies should not be allowed to conduct closed “inves-

tigations,”. which are investigations in form only and

tonducted without, the presence or participation of the

parties, which are cloaked with an aura of completeness,

simply because they are conducted by the Agency,

N.L.R.B. v. Ortonix, Inc., 380 F.2d 737, (C.A. 5; 1967) ;

_ Howell Refining Co. v. N.L.R.B., 400. F.2d 213 (C.A: 5,

1968). In the instant case, Petitioner provided “specific

evidence” to ‘show that the Union or Union adherents

‘ conducted coercive activities prior to the election (TR. . ra

97-107): It further advised the Regional Director that it

understood that other employees had been intimidated,

but that said employees were afraid to testify about such

- 92

intimidation. Petitioner also stated that it did not want

to interrogate employees relative to these, matters and

requested the Board to conduct such interrogation : (TR.

100). Because of these built-in limitations on Petitioner’s

ability to interrogate, it could not at the time in question

supply more specific information to the Regional, Direct-

or. This is not “required, United States Rubber Co. v.

N.L.R.B. » 373 F.2d 602 (C.A. 5, 1967). :

vas “deniod Petitioner a hearing during the: Rep-

resentation proceeding, the "NLRB was able to’deny a

hearing during the Unfair Labor Practice proceeding

by: invoking its rule providing that Petitioner’: had no —

right to a hearing without new: or previously a .

able evidence. Citing numerous “relitigation cases”

the Board contended that Petitioner had no right to a

Hearing on -issues disposed of in a previous Representa-

tion case. This is not Petitioner’s understanding of the

law, Heights Funeral Home, Inc. v. N. L.R.B.; 385. F.2d

879 eens 5, 1967). ele |

Finally, Petitioner would argue that as a matter

‘ of public policy, Board policy should .be reviewed in

regard to favoring the convening of a hearing at some

‘ point in such a proceeding. The Courts have been en-

cour aging | such an expansion. ‘ Home Town Foods, Inc.

“d/a/ Forémost Dairies of the South v. .N.L.R.B. 379

F.2d 241 (C.A. 5, 1967); S. H. Lynch & Company, Inc...

uv. N.L.R.BS 377 F.2d 558. (C.A. 5, 1967); N.L.R.B. v.

Ortronix, Inc. 380 F.2d 737-(C.A.-5, 1967) ; Howell Re-

‘fining Co: v. N.L.R.B., 400 F.2d 213 (C.A. OD, 1968) ;

Suneo Predycts Company v. N. L.R.B. 399 F.2d 835 (C. .

- 385 F.2d 879 (C.A, 5,-1967). Regardless of the Board’s ~

desire to increase its administrative ‘efficiency and con-

—

- serve the public dollar, when a hearing is not held, the

respondent citizen feels that his position has ‘been ig-

nored by the faceless government about which he so.

_ often complains. When a hearing is held, it affords‘all

- sides the opportunity. to present their. positions in’ pub-

lic and to examine the position of the other parties to . -

their satisfaction. This process has an ameliorative ef-

. fect, in that all parties feel that they have had a “fair

trial” regardless of the final outcome of the case. This

is particularly true in a: case such as this one which has

-reached the Supreme Court with a record that i is inade-

quate on | many points. '

- Petitioner definitely does not argue that’ sense-

less hearings should be held where there are no facts in

issue: Petitioner does assert that where there are '

material facts in issue, sueh as.in the present case, that

as a matter of public policy, the Board should conduct

a hearing and afford the parties an opportunity to con-

. . struct.a.record. Where there are a few facts in issue

- (which might conceivably turn the -resolution of the

case), the Board should be just as punctilious in con-

ducting a hearing as if there were.a hundred facts in .

issue. The question is not one of quantity, but of quali-

ty. If the Board wishes to appear & more objective ad-

ministrative agency in the public eye, it must: refrain

from constructing a procedural record such as s this one

in the future..

Certiorari should be granted to resolve the. con- -

fusion and differefices between ‘Circuits and within Cir-

cuits on this hearing issue. There are no doubt more

than fifty cases per year litigated to the Appellate level

on this issue alone; its resolution would reduce the load

of Federal oe cases in all Circuits and in this ;

Court.

t Be

24 -

+. CONCLUSION

: For these reasons, a Writ of Certiorari should issue

_ to review the Judgment and Opinion of the Fifth Circuit.

Respectfully submitted,

JOHN G ‘BIERLEY

ae OF MACFARLANE, FERGUSON,

“~ ALLISON & KELLY -

Tampa, -Florida -

— for the Petitioner

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