330 F.2d 712 (10th Cir. 1964), 7381, N. L. R. B. v. Ideal Laundry & Dry Cleaning Co.

Docket Nº:7381.
Citation:330 F.2d 712
Case Date:April 23, 1964
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 712

330 F.2d 712 (10th Cir. 1964)




No. 7381.

United States Court of Appeals, Tenth Circuit.

April 23, 1964

Page 713

[Copyrighted Material Omitted] Page 714

Melvin Pollack, Washington, D.C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Peter Giesey, Washington, D.C., with him on brief), for petitioner.

John K. Pickens, of Dawson, Griffin, Pickens & Riddell, Washington, D.C., for respondent.

Before MURRAH, Chief Judge, HILL, Circuit Judge, and KERR, District judge.

MURRAH, Chief Judge.

The N.L.R.B. petitions for enforcement of its cease and desist and post notice order against respondent, Ideal Laundry And Dry Cleaning Co., for refusing to bargain with the Union, 1 in violation of section 8(a)(5) and (1) of the N.L.R.A., 29 U.S.C. § 158(a)(5) and (1). See: 140 N.L.R.B., No. 145. The respondent's admitted refusal to bargain with the certified Union is based upon the assertion that the Board's determination as to the appropriate employee bargaining unit, and its voiding of two ballots cast in the representation election were contrary to law, arbitrary and capricious.

The Trial Examiner made the following uncontroverted findings: The Union filed a representation petition Seeking designation as the bargaining representative of certain employees of the respondent. After a § 9(c) hearing (apparently in accordance with 29 C.F.R., §§ 102.64, 102.65, and 102.66), the Regional Director directed an election in a unit consisting of the laundry and dry cleaning production and maintenance employees, excluding, inter alia, salaried and commissioned drivers. Respondent, thereafter, filed a request for review with the Board, urging that all its employees except guards and supervisors be included in the unit and allowed to vote in the representation election. In a telegraphed order, the Board denied the request, stating that 'the only substantial issue raised * * * involves unit placement of salaried drivers, and such issue * * * can best be resolved through challenge procedure.'

The tally of ballots cast in the election showed: 59 undisputed votes for the Union, 58 against it; and, 6 were challenged and 2 were voided. The respondent objected to the conduct of the election, contending that the challenged ballots of the six salaried drivers should have been counted, and further objected to the voiding of the two ballots. Following an investigation, pursuant to 29 C.F.R., § 102.69(c), the Regional Director issued a 'Supplemental Decision, ' wherein he sustained the challenges and the voiding of one ballot, refused to consider the other voided ballot, and certified the Union as the bargaining agent. The respondent lodged an appeal with the Board. See: 29 C.F.R., §§ 102.69(c), 102.67(b) and (d). Approximately nine months later, the Board denied review, on the ground that the request raised 'no substantial or material issue with respect to the Regional Director's determination * * *.' The Union, thereupon, requested recognition as the certified bargaining representative, but the respondent refused, giving rise to this unfair labor practice proceedings.

The Trial Examiner in this proceedings rejected all offers of proof by the

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respondent on the issue of the appropriateness of the bargaining unit, on the ground that the proffered proof did not indicate that respondent's operations had changed since the hearing in the representation case; that such evidence was cumulative; and, that he was, therefore, 'bound by the Board's decision in the representation case.'

The respondent's vital point of contention is to the effect that it is entitled to an opportunity for hearing on the appropriateness of the bargaining unit, in accordance with the due process requirements provided by § 5 of the Administrative Procedure Act, 5 U.S.C. § 1004; and, that since representation proceedings are specifically exempt from the requirements of § 5, it is entitled to be heard in this proceedings wherein its refusal to bargain is predicated upon the inappropriateness of the certified bargaining unit. The respondent does not seem to complain of the lack of opportunity for hearing in the pre-election proceedings, pursuant to which the Board ordered an election within the designated unit subject to challenge. The specific complaint is that the post-election investigation on the unit placement of the six challenged drivers was conducted without respondent having an opportunity to be heard; and, that it was on the basis of this investigation that the Regional Director found and the Board agreed that 'the interests of the six drivers involved differ sufficiently from those of the plant employees to negate a mutuality of interests between the two groups.'

The appropriateness of the bargaining unit is the salient issue in this unfair labor practice proceedings, and respondent is, to be sure, entitled to a due process hearing on that issue. And, if an opportunity for a full hearing on the critical issue was not afforded in the representation proceedings, respondent is entitled to be heard in this unfair labor practice proceedings.

The proceedings under § 9(c), to determine the appropriate bargaining unit for purposes of certification, though conducted as a 'hearing upon due notice, ' is purely administrative and does not contemplate a final determination of the rights of the parties. It may be, and usually is, conducted by an officer or employee of the Regional Office, who makes no recommendations with respect thereto. See: 29 C.F.R., § 102.64. The Board is entrusted with wide discretion in establishing the procedure and safeguards necessary to a free and fair choice of a bargaining representative by the employees. See: N.L.R.B. v. A. J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322. Orders and decisions of the Board, concerning the conduct of an election and certification of an appropriate bargaining unit under § 9(c) of the Act, are interlocutory and not directly reviewable. For judicial intervention at this point would hamper the administration of the Act. But, an aggrieved party may question the appropriateness of the bargaining unit in a proceedings to review or enforce under § 10(e) or (f), based upon errors of law underlying the certification, such as the disposition of challenges to election ballots. See: Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; Local 901, International Bro. of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Compton (10 CA), 291 F.2d 793; and N.L.R.B. v. Joclin Manufacturing Company, (2 CA), 314 F.2d 627. And, the Court will examine the entire record to determine: (1) whether the aggrieved party was accorded a fair hearing; and, (2) whether the Board applied the proper legal criterion in...

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