NLRB v. Lord Baltimore Press, Inc.

• Decision Date: 19 March 1962
• Docket Number: No. 8416.,8416.
• Citation: 300 F.2d 671
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LORD BALTIMORE PRESS, INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

300 F.2d 671 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LORD BALTIMORE PRESS, INC., Respondent.

No. 8416.

United States Court of Appeals Fourth Circuit.

Argued January 5, 1962.

Decided March 19, 1962.

Glen M. Bendixsen, Attorney, National Labor Relations Board (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Attorney, National Labor Relations Board, on the brief), for petitioner.

Earle K. Shawe, Baltimore, Md. (Sidney J. Barban, William J. Rosenthal, and Larry M. Wolf, Baltimore, Md., on the brief), for respondent.

Before SOPER, BRYAN and BELL, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge.

The order of the National Labor Relations Board¹ requiring The Lord Baltimore Press to bargain with Amalgamated Lithographers of America is here resisted, fundamentally, upon the assertion that the election favoring the union as the collective bargaining representative of Baltimore's employees was unfairly conducted. The immediate challenge is to the Board's refusal to accord Baltimore a hearing on its exceptions to the election.

We stay the order's enforcement because of the Board's denial of the hearing.² The election's validity is thus made a premature question, to await the outcome of the further proceedings we order.

On May 8, 1959 Baltimore consented to an election, under the supervision of the Board's Regional Director, to ascertain whether a certain unit of its employees desired Amalgamated as its bargaining representative.³ The election was held June 11, 1959 and the union won. Next day Baltimore filed objections to the election, at the same time asking that it be set aside. Presently pertinent, the objections stated that:

"(1) During the period immediately prior to the election Employer supervisory personnel engaged in organizing and other activities on behalf of the Union, by which employees were induced, coerced and caused to favor the Union, sign cards for the Union and vote for the Union, all of which was unknown to the Employer until after the election."

The supervisory personnel to which Baltimore had reference was one Creston E. Ford, the foreman of its lithographic department. Following an ex parte investigation, including in camera interviews with the witnesses of whom it was apprised by the employer, the Regional Director concluded that the objections should be overruled and Amalgamated certified as the exclusive representative of the Baltimore employees. To this report Baltimore filed exceptions. The Board denied them without a hearing, thinking a hearing unwarranted and unsought, and accordingly certified Amalgamated.

Thereafter, Baltimore declined to bargain with the union, contending that its selection as the collective agent was invalid. At the union's instance the Board issued a complaint accusing Baltimore of an unfair labor practice as defined in § 8(a) (5) and (1) of the Act, 29 U.S. C.A. § 158(a) (5), (1). In the hearing on this complaint before the Examiner, Baltimore proffered oral and documentary evidence purporting to delineate the activities of Ford. Quoting from the offer made before the Examiner, the evidence it tendered would show that

"He Ford said that he knew the company had done and would do some dirty tricks to us and told them to look at what they have done to me. Further, that Mr. Ford told employees under his supervision `you fellows better sign a card and send them in\' under circumstances in which it was perfectly clear that he was talking about union cards which were the only cards being circulated in the plant at the time.

"Further, that Mr. Ford told witnesses under his supervision that the plant superintendent was just a hatchet man and the men had better get together and get the union in.

"Further, that many times and immediately before the election Mr. Ford stated to employees under his supervision that the plant wasn\'t a family affair any longer, that the men didn\'t any longer have the security they had before and that the fellows ought to have a union to protect themselves."

This evidence the Examiner declined to hear. He was of the opinion that as the Board had already decided the dispute in the representation proceeding, the question was no longer open. Whereupon on his recommendation the Board entered the order it now seeks to enforce.

With the respondent Baltimore, we think it should have been heard on its exceptions in the election proceeding. Indwelling, of course, was a request for a hearing upon them. The Board's Rules and Regulations, Section 102.69, allowed such a hearing. But we need not now enlarge on the point because, in the absence of a hearing at that stage, the employer should certainly have been accorded a hearing thereon in the complaint proceedings, and we discuss the point under that head.

The Examiner and the Board clearly erred in rejecting the testimony when last offered. Ford's activities — if true — could not be lightly brushed off. The Board has repeatedly declared, and again recognizes in its brief here, that advocacy of the union by a supervisor-employee, unknown to the employer, is cause for annulment of the election. Shovel Supply Co., 118 N.L.R.B. 315 (1957); Parkchester Machine Corp., 72 N.L.R.B. 1410 (1947); Robbins Tire &...