The Riverside Press, Inc. v. National Labor Relations Board

415 F.2d 281

Opinions

ALDRICH, Circuit Judge:

An employer, Riverside Press, Inc., brings this petition to set aside a section 8(a) (5) and (1) order of the National Labor Relations Board based upon an admitted failure to bargain with a union.¹ The company’s position is that the Board certification of the election of the union was improper, an issue on which it could obtain court review only by refusing to bargain and awaiting an unfair labor practice charge. Cf. Boire v. Greyhound Corp., 1964, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849.² At the unfair labor practice stage it sought to try one of the factual issues of the certification de novo, only to find that the Board would not permit it. The propriety of this ruling is the sole question before us.

To begin at the beginning, the union filed a representation petition, after which the regional director conducted the customary pre-election hearing, determined the appropriate unit and ordered an election. The union won by a vote of 26 to 22, but only by virtue of challenging the validity of four ballots, all of which were against the union, claiming the voters to be ineligible supervisors. The company objected to the union’s right to challenge, asserting that the supervisory status of all the voters was conclusively “litigated” in the pre-election hearing and could not be reliti-gated after the election.³ However, it requested a post-election hearing if the regional director disagreed with its view of the conclusiveness of the pre-election determination. The regional director, after an ex parte investigation, determined that two of the ballots should be counted, and ordered a hearing to determine the status of the others, Wiley and Schilling. This was within his discretion under NLRB Rules and Regulations, 29 C.F.R. § 102.69(c).⁴ After an extensive hearing the hearing officer recommended that both ballots remain uncounted. The regional director did not adopt the recommendation as to Wiley, but did as to Schilling, and therefore certified the union. Review by the Board was denied.

When the company refused to recognize it the union filed charges instituting an unfair labor practice proceeding. At these proceedings counsel for the General Counsel rested upon the election and certification of the union and the company’s admitted refusal. The company’s response was to request a de novo hearing on the supervisory status of Schilling. It did not seek to offer additional evidence, newly discovered or otherwise, cf. NLRB v. Air Control Prods., 5 Cir., 1964, 335 F.2d 245, 251, or try to persuade the trial examiner in effect to review the prior decision to determine if it was legally erroneous or factually unsupported, cf. NLRB v. Southbridge Sheet Metal Works, Inc., 1 Cir., 1967, 380 F.2d 851, 854, & n. 2; Pepsi-Cola Buffalo Bottling Co. v. NLRB, 2 Cir., 1969, 409 F.2d 676. The company’s only argument was that before it could be found guilty of an unfair labor practice it was entitled to a complete new hearing upon Schilling’s status as of right under section 10(b), 29 U.S.C. § 160 (b). The trial examiner disagreed, and refused to conduct a hearing upon this issue, concluding that it had been fully litigated in the post-election hearing. With no other issues in dispute, the impropriety of the company’s refusal to bargain followed as a matter of course. The Board affirmed.

The company raises, basically, three criticisms of the Board’s ruling. The most basic one, that objections to the representation election may not be resolved in post-election hearings, need not detain us. This claim was not only untimely made, see Magnesium Casting Co. v. Hoban, 1 Cir., 1968, 401 F.2d 516, cert. denied 393 U.S. 1065, 89 S.Ct. 720, 21 L.Ed.2d 708⁵ but frivolous in the light of the Board’s wide discretion in fulfilling its section 9(c) function of certifying election results. Cf. NLRB v. A. J. Tower Co., 1946, 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322. Such hearings have long been held. It is not necessary that they be specifically provided for in the statute.

Secondly, the company argues that even if the Board can hold such hearings, no resolution of any issue in such should be binding in any subsequent unfair labor practice proceeding. Initially it points to the disparity in terms of procedural safeguards between the unfair labor practice hearings and the representational hearings — both pre- and post-election. Whereas in the unfair labor practice hearings a trial examiner presides⁶ and the rules of evidence developed in the courts are controlling “so far as practicable,”⁷ in both representational hearings a hearing officer presides⁸ and the judicial rules of evidence are not controlling.⁹ In view of the “so far as practicable” language of section 10(b) and the representational nature of the issue involved in the post-election hearing in this case, we shall abide by the long line of cases that have found the representational determinations to be binding in a later unfair labor practice proceeding. See NLRB v. Air Control Prods., 5 Cir., 1964, 335 F.2d 245; NLRB v. Douglas County Elec. Membership Corp., 5 Cir., 1966, 358 F.2d 125. There is no reason to distinguish post-election hearings from those held earlier, unless it were contended that the later hearings dealt with issues largely related to conduct which could form the basis for an unfair labor practice charge and only incidental to the question of the proper representation, a distinction we will return to. As the court in Air Control Prods., supra 335 F.2d at 251, stated, “We are not dealing with objections to the manner in which the election (or election campaign) is conducted or those in which election activities constitute unfair labor practices.” Nor do we accept the company’s objection to the Board’s rule, 29 C.F.R. § 102.69(d), which in effect denies the applicability to post-election hearings of the prohibition of section 9(c) (1), 29 U.S.C. § 159(c) (1), against the acceptance of hearing officer’s recommendations in pre-election proceedings. The restriction in section 9(c) (1) on the powers of hearing officers seems to have been part of a general reform in 1947 to separate prosecutorial and adjudicative functions of the Board. “Presumably, the purpose is to isolate the Board members from the Board agents, who conduct the representation investigations * * *."¹⁰ We are persuaded by the Board’s contention that while it still formally complies with the section 9(c) (1) restriction in pre-election cases, the addition of section 3(b), 29 U.S.C. § 153(b), in 1959 and the subsequent delegation of the Board’s powers in representational proceedings to the regional directors, with a limited discretionary appeal to the Board virtually nullifies the insulating effect of section 9(c) (1), and therefore the Board need not apply a dead letter law to post-election hearings, where it does not literally apply. The regional director is not the neutral adjudicator that Board members are presumed to be, since he partakes in the prosecutorial functions. See McLeod v. Local 239, Inter. Broth, of Teamsters, etc., 2 Cir., 1964, 330 F.2d 108; NLRB Rules and Regulations, 29 C.F.R. §§ 101.5-101.8, 102.14-102.19. Therefore, the majority of representation decisions are made solely by an official not strictly neutral; moreover, when decisions are granted appeal by the Board, they come with the recommendations of this subordinate.¹¹ Finally, the Board could hardly be prevented from instituting a procedure which is probably fairer, and which, it has been contended, is a requirement of due process under Morgan v. United States, 1936, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288. See Utica Mut. Ins. Co. v. Vincent, 2 Cir., 1967, 375 F.2d 129, cert. denied, 389 U.S. 839, 88 S.Ct. 63 (Friendly, J.) rejecting as frivolous argument that nonrecommendation provision of section 9(c) (1) is unconstitutional, noted in 14 Wayne L.R. 617 (1968).

The company’s third major claim is that even if some issues decided in the representational proceedings may be binding in a subsequent unfair labor practice proceeding, the recent cases, Heights Funeral Home, Inc. v. NLRB, 5 Cir., 1967, 385 F.2d 879, and Amalgamated Clothing Workers of America, AFL-CIO v. NLRB, 1966, 124 U.S. App.D.C. 365, 365 F.2d 898, hold that the issue of “supervisory status” of any employee must be relitigated. This is a misconception. These cases allow relitigation only when the subsequent unfair labor practice is “unrelated” to the prior election proceeding; for example, interference with organizational rights by supervisors, or the discharge of an employee allegedly a supervisor. But in Amalgamated, Clothing Workers the court specifically noted, “Where a company is charged with refusal to bargain with a union certified after election, the proceeding is sufficiently ‘related’ to the representation proceeding to preclude re-litigation of such common issues as the scope of the appropriate unit and employees therein.” 365 F.2d at 904. (Emphasis added.) The issue is one of fairness: was the particular point that arises in the unfair labor practice proceeding significant and actually contested at the prior hearing, and was it clearly focused in terms of the issue arising in the later unfair labor practice charge. In the present case the supervisory status of Schilling was the key issue in the post-election hearing, was vigorously contested, and was focused in terms of the validity of the union victory. The overlap, in other words, was precise.

This is not to say that the company could not have raised before us the issue of the adequacy of the evidence to support the regional director’s conclusion that Schilling had supervisory status. To return to Boire v. Greyhound, supra, it cannot be put in a position where it could never have such a determination. The company, however, though preserving its rights to raise such issues by objecting before the NLRB,¹² did not choose to press them before us, either by brief or oral argument. So far as its petition to review and set aside is concerned, this was a waiver.

However, so far as the Board’s cross-petition for enforcement is concerned, possibly we should take a cursory look at the adequacy of the Board’s findings to support its order, on the assumption that the special statutory basis for the Court’s decision in NLRB v. Ochoa Fertilizer Corp., 1961, 368 U.S. 318, 82 S.Ct. 344, 7 L.Ed.2d 312, is not present here, leaving a burden of sorts upon the Board in spite of the employer’s lack of argument. Cf. NLRB v. Local 111, United Broth. of Carpenters, 1 Cir., 1960, 278 F.2d 823, 825; NLRB v. Filtron Co., 2 Cir., 1962, 309 F.2d 184; NLRB v. Kellburn Mfg. Co., 2 Cir., 1945, 149 F.2d 686. But cf. NLRB v. National Mineral Co., 7 Cir., 1943, 134 F.2d 424, 425, cert. denied 320 U.S. 753, 64 S.Ct. 58, 88 L.Ed. 448. Such a look would give us no qualms in enforcing the order. NLRB v. Gary Aircraft Corp., 5 Cir., 1966, 368 F.2d 223, cert. denied 387 U.S. 918, 87 S.Ct. 2032, 18 L.Ed.2d 971; Brewton Fashions, Inc. v. NLRB, 5 Cir., 1966, 361 F.2d 8, cert. denied 385 U.S. 842, 87 S.Ct. 95, 17 L.Ed.2d 75; NLRB v. Swift & Co., 1 Cir., 1961, 292 F.2d 561.

However, this is the most we have to do. The matter was well put in the concurring opinion in NLRB v. Red Spot Elec. Co., 9 Cir., 1951, 191 F.2d 697, at 699.

I approve the judgment of the court as announced in the majority opinion, and agree that upon a petition of this kind we should carefully examine the record for the purpose of determining that the Board had jurisdiction to make its order and that it has not “traveled outside the orbit of its authority”. Such procedure is in conformity with the ancient practice of courts of equity when asked to enter a default decree.

With respect to other matters stated or suggested by the opinion, I do not think that the rule of National Labor Relations Board v. Cheney California Lumber Co., 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739, has been modified either by the language of the statute or by anything said in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, or in National Labor Relations Board v. Pittsburg SS. Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479. The language of § 10(e) of the Act quoted and relied upon in the Cheney Lumber Company case has not been changed in the later Act.

In a subsequent case the Ninth Circuit cited this concurrence with approval. F.P.C. v. Arizona Edison Co., 9 Cir., 1952, 194 F.2d 679, 685. Clearly the court must be satisfied that the Board had jurisdiction. However, Ochoa Fertilizer Corp., supra, itself would seem to have put to rest any concept that the enforcing court, qua court, has a substantive interest in the correctness of the decision underlying the order, or, to quote our Brother Godbold’s dissent, “whether in the interest of the national policies represented by the Congressional labor enactments * * * the court should enforce the order.” No doubt the court, qua court, owes a duty to itself to ascertain that the form of the order is such that enforcement would be practicable, but beyond that we are not persuaded that a respondent cannot lose a valid point by waiver any less than Ochoa held it could by consent.

The order will be enforced.

Footnotes

1

. Local 267, Dallas-Fort Worth Lithographers and Photoengravers International Union, AFL-CIO.

2

. The reason for this, of course, as Boire pointed out, is to deter delaying action in the courts.

3

. If developed, this issue might have raised questions, but it has not been.

4

. “[T]he regional director may (1) issue a report on objections or challenged ballots, or both, * * * or (2) exercise his authority to decide the case and issue a decision disposing of the issues and directing appropriate action or certifying the results of the election. In either instance, such action by the regional director may be on the basis of an administrative investigation or, if it appears to the regional director that substantial and material factual issues exist which can be resolved only after a hearing, [he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer.”]

5

. The company contends that it was obliged to invoke the rule calling for post-election hearings, even though it disputed its validity, or it would be charged with failure to exhaust its administrative remedies. Cf. NLRB v. Rexall Chem. Co., 1 Cir., 1967, 370 F.2d 363. But if the rule was void, recourse thereto could not be held necessary. It is also too late to contend that the post-election hearings were not exempted by 5 U.S.C. § 554(a) (6) from the safeguards of the Administrative Procedure Act.

6

. NLRB Rules and Regulations, 29 C.F.R. § 102.34.

7

. National Labor Relations Act § 10(b), 29 U.S.C. § 160(b).

8

. NLRB Rules and Regulations, 29 C.F.R. §§ 102.64, 102.69(d).

9

. NLRB Rules and Regulations, 29 C.F.R. §§ 102.66, 102.69(d).

10

. Senate Minority Report on S.1126, S. Rep. No. 105, pt. 2, 80th Cong., 1st Sess., at 33 (1947), reprinted in U. S. Govt. Printing Office, Legislative History of the Labor Management Relations Act, 1947, at 495 (1948). But if, as Judge Friendly pointed out in Utica Mut. Ins. Co. v. Vin cent. 2 Cir., 1967, 375 F.2d 129, 133 n. 6, cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 the restriction was only to speed up the pre-election procedure, it is clearly not a requirement in post-election proceedings.

11

. The hearing officer, moreover, “may submit an analysis of the record to the regional director or the Board * * *." NLRB Rules and Regulations, 29 C.F.R. § 102.66(f).

12

. We make this concession rather than debate it. Actually, the exceptions which the employer took from the trial examiner’s unfair labor practice hearing, as distinguished from those taken from the post-election hearing examiner’s hearing, are broad and fail to specify this point.