NLRB v. Ideal Laundry and Dry Cleaning Co., 7381.

• Decision Date: 23 April 1964
• Docket Number: No. 7381.,7381.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. IDEAL LAUNDRY AND DRY CLEANING CO., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

330 F.2d 712 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. IDEAL LAUNDRY AND DRY CLEANING CO., Respondent.

No. 7381.

United States Court of Appeals Tenth Circuit.

April 23, 1964.

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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 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 determining the eligibility of the challenged ballots. See: N. L. R. B. v. Joclin Manufacturing Company, ibid.

Section 9(d) provides that whenever an unfair labor practice order of the Board under § 10(c) is based in whole or in part upon facts certified pursuant to a pre-election investigation under § 9(c), and there is a petition for enforcement or review of such order, such certification and the record of such investigation shall be included and the transcript of the entire record is required to be filed under § 10(e) or (f), and, thereupon, the decree of the Court enforcing, modifying, or setting aside, in whole or in part, the order of the Board, shall be made and entered upon the pleadings, testimony and proceedings set forth in such transcript. While the proof adduced at the § 9(c) proceedings is carried forward as relevant evidence in an unfair labor practice hearing involving the appropriateness of the unit, and in proceedings to enforce the Board's order therein, it is not conclusive of the issue. Due process demands that either party be permitted to produce additional proof deemed material to the vital issue of appropriateness, if it was not a part of the record in the representation proceedings, and for some reason was unavailable for consideration by the Board in its decision therein. See: Pittsburgh Plate Glass Co. v. N. L. R. B., supra.

The Board sustained the Trial Examiner's rejection of the proffered testimony on the ground that the issues were fully litigated in the representation proceedings; and, that there was no evidence proffered which was "newly discovered or unavailable" to the respondent at the time of the representation hearing. See: Footnote to the Board's Order. This disposition of the matter ignores the fact that respondent had no notice of the post-election investigation, nor was it apprised of the evidence obtained thereby, except insofar as reflected in the recitations of the Regional Director's Supplemental Decision. It appears that respondent first learned of the existence and content of the affidavits of the six challenged drivers from the affiants themselves. In its request for review, respondent, by affidavit of its President, made reference to the ex parte affidavits of the employees and stated that the information contained therein was generally true "as far as it goes," but that there was other information which would justify a different interpretation of these affidavits. The President's affidavit went on to relate the additional facts deemed important to the critical issue. The Board, however, declined the request for review as being without substance.

While the Board may, in the exercise of its administrative discretion, deny an opportunity for hearing in the representation proceedings on...