NLRB v. Capital Bakers, Inc., 15079.

• Decision Date: 23 September 1965
• Docket Number: No. 15079.,15079.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAPITAL BAKERS, INC., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

351 F.2d 45 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAPITAL BAKERS, INC., Respondent.

No. 15079.

United States Court of Appeals Third Circuit.

Argued April 1, 1965.

Decided September 23, 1965.

Rehearing Denied October 25, 1965.

Michael N. Sohn, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Atty., N. L. R. B., on the brief), for petitioner.

Earle K. Shawe, Baltimore, Md. (Larry M. Wolf, Baltimore, Md., on the brief), for respondent.

Before HASTIE and FREEDMAN, Circuit Judges, and WEBER, District Judge.

WEBER, District Judge.

This case is before the Court on the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. for enforcement of its order dated August 25, 1964. The Board found that respondent violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the Union as the duly elected and certified representative of its employees. This case involves one out of four of respondent's plants Paxton Street plant, Harrisburg, Pa. upon which petitions were heard on a consolidated record resulting in findings that each was an appropriate bargaining unit, and directing that an election be held.

At the hearing on the petition respondent contested the appropriateness of the single plant unit. Respondent did not request the Board to review this finding.

At the election, of 62 ballots 31 favored the Union, 29 were opposed, and 2 ballots were challenged by the Union. The Regional Director conducted an administrative investigation, overruled one challenge and sustained one. The challenged ballot which was overruled was not counted because it would not change the result, and the Union was accordingly certified. Respondent made a request for hearing at this time.

A Request for Review was filed by the respondent with respect to the sustained challenge on the grounds that the Regional Director had denied respondent a hearing with respect to the supervisory status of the challenged employee. The Request for Review was denied without hearing.

The respondent refused to recognize or bargain with the Union and an Unfair Labor Practice charge and hearing followed. Here respondent contended that the single plant unit was inappropriate but the Trial Examiner refused to pass on this issue on the grounds that respondent's failure to seek a review of the original representation decision precluded litigating this issue in any subsequent unfair labor practice proceeding.¹ Also, respondent sought to introduce evidence on the alleged supervisory status of the challenged employee. The Trial Examiner refused to pass on this issue on the grounds that the Labor Board's refusal of Request for Review of this issue could not be relitigated under the Board's Rules. A detailed offer of proof was made on the record but was rejected by the Trial Examiner. Respondent also claimed that it was improperly denied a hearing on the question of the alleged supervisory status of the challenged ballot. The Trial Examiner rejected this contention on the grounds that it had been examined and rejected by the Board on the Request for Review, and, absent newly discovered evidence, the issue could not be relitigated in the complaint hearing.

This petition for enforcement followed. Respondent admits that it has refused to recognize and bargain with the Union, but asserts that the Labor Board's findings and conclusions that respondent violated the Act are not supported by substantial, material and valid evidence on the record considered as a whole, as required by the Act, and are erroneous as a matter of law. Specifically, respondent contends that:

(1) The Board\'s determination that the challenged employee was supervisory was made on the basis of an ex parte investigation and without granting a hearing which deprived respondent and its employees of their rights under law; and

(2) The direction of an election in a single plant unit was erroneous and contrary to the requirements of the National Labor Relations Act.

I.

THE APPROPRIATE BARGAINING UNIT DETERMINATION.

Respondent argued that the determination of the appropriate bargaining unit in this case was made by the Labor Board in violation of Section 9(c) (5) of the Act which provides that:

"In determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling." 29 U.S.C. § 159(c) (5).

In support of this argument respondent points to its history of representation petitions. Respondent operates six bakery plants within an 85 mile radius of Harrisburg, Pennsylvania. In 1956 and in 1960 the Board held that a unit of employees in a single plant of respondent was not appropriate, holding that:

"the high degree of integrated, centralized and detailed managerial control of labor relations policies for all the plants, the interdependence of the plants in the Employer\'s production and distribution system, the similarity of functions of all the production and maintenance employees, and their uniform working conditions and fringe benefits" (Joint Appendix p. 1366).

all compelled a conclusion that a single plant unit was not appropriate. (Case No. 4-RC-4091). In 1961, the parent organization of the Union involved here agreed to and the Labor Board directed an election in a multi-plant unit of all respondent's plants, which the Union lost. In 1963 the Board reversed its 1960 position and directed an election in a single plant unit in Williamsport on petition of a local of the Teamsters Union. A Request for Review of the unit determination was denied, but the Union lost the election. Also in 1963, at the Pottsville plant, the Board directed a single plant unit election for a Teamsters Union Local, the respondent requested Review which was denied, and the Union lost the election.

The present proceeding grew out of four single plant representation petitions in 1963 for four of respondent's plants, and the determination by the Regional Director after hearing, that each of said plants was an appropriate unit for the production and maintenance employees. The respondent did not file a Request for Review of this determination, but filed its Request for Review on the supplemental determination of the Regional Director concerning the contested ballots in the election. In this Request for Review respondent stated that it was not abandoning its objection to the unit determination but it devoted its arguments to the challenged ballot issue. The Trial Examiner at the unfair labor practice hearing held that under Sec. 102.67(f) of the Board's Rules and Regulations the respondent's failure to request review of this finding precluded it from being raised at this time, in the absence of any evidence unavailable at the time of the representation hearing. Respondent did not seek to introduce further testimony on the unit issue, but argued that the finding of a single plant unit was a reversal of prior determinations of the Board without proper justification.

Section 10(e) of the National Labor Relations Act provides:

"No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. § 160(e).

This has not only been held to preclude judicial consideration of issues not raised before the Board, N. L. R. B. v. Local 476, United Association of Journeymen of the Plumbing & Pipefitting Industry, AFL-CIO, 368 U.S. 401, 402 (1962), 82 S.Ct. 423, 7 L.Ed.2d 382; N. L. R. B. v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961), but also to apply where an issue litigated before the Trial Examiner has not been raised by a timely exception to a determination of the Board by Request for Review. N. L. R. B. v. Mooney Aircraft, Inc., 310 F.2d 565, 566 (5th Cir., 1962); N. L. R. B. v. Giustina Bros. Lumber Co., 253 F.2d 371, 374 (9th Cir., 1958).

Petitioner argues that to have raised the unit representation issue in 1963 in this case would have been futile in the face of adverse determinations in two cases within a few months prior to the present case where respondent's requests to review unit determinations had been refused by the Board.

While technically respondent failed to request review of the unit determination of the Regional Director, respondent did contest this issue at the representation hearing it reserved this question in its Request for Review of the post-election report, it argued this issue before the Trial Examiner at the unfair labor practice hearing. We feel that the respondent is not now barred from raising this objection before the Court since this has been his position from the inception of the proceedings, and the Board has been adequately appraised of his intention to rely on this. N. L. R. B. v. Eastern Mass. St. Ry. Co., 235 F.2d 700, cert. den. 352 U.S. 951, 77 S.Ct. 325, 1 L.Ed.2d 242 (1st Cir. 1956); N. L. R. B. v. Revere Metal Art Co., 280 F.2d 96, cert. den. 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 189 (2nd Cir., 1960).

In fact, at the unfair labor practice hearing, the Trial Examiner specifically noted that respondent was precluded from court review of the representation case, and that the appropriate means of testing the result was to take the risk of refusing to bargain, and to challenge the finding in the unfair labor practice complaint proceeding. That is what respondent was trying to do. The Trial Examiner added:

"Certainly it is not my function to prevent Respondent from adequately presenting its case in whatever forum is proper, and I do not so view my function."

Subsequent to the argument of this petition, the Supreme Court has decided the case of N. L. R. B....