365 F.2d 898 (D.C. Cir. 1966), 19452, Amalgamated Clothing Workers of America, AFL-CIO v. N. L. R. B.

Docket Nº:19452, 19515.
Citation:365 F.2d 898
Case Date:June 27, 1966
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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365 F.2d 898 (D.C. Cir. 1966)






SAGAMORE SHIRT COMPANY, d/b/a Spruce Pine Manufacturing Co., Respondent.

Nos. 19452, 19515.

United States Court of Appeals, District of Columbia Circuit.

June 27, 1966

Argued Jan. 10, 1966.

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Mr. Joel Field, New York City, of the bar of the Court of Appeals of New York pro hac vice, by special leave of court, with whom Mr. Jacob Sheinkman, New York City, was on the brief, for petitioner in No. 19452.

Mr. Warren M. Davison, Atty., N.L.R.B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, were on the brief, for petitioner in No. 19515 and respondent in No. 19452.

Mr. J. W. Alexander, Jr., Charlotte, N.C., of the bar of the Supreme Court of

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North Carolina, pro hac vice, by special leave of court, with whom Mr. John L. Kilcullen, Washington, D.C., was on the brief, for respondent in No. 19515.

Before BAZELON, Chief Judge, and FAHY and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

These consolidated cases relate to an order of the National Labor Relations Board. 1 The Board adopted the Trial Examiner's findings that Sagamore Shirt Company (Company) had violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act 2 in the following respects: The Company refused to recognize and bargain with the Amalgamated Clothing Workers (Union) which represented a majority of the workers. Company supervisors, i.e. floorladies, interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by the Act. The Company posted a coercive notice concerning the Union in the plant. The Company's plaint manager, Shay, interrogated an employee about her visit with Union organizers. The Company's subsequent unlawful conduct contributed to the conditions which created the Union's loss of majority. The Board's Order enjoined continuance of these unlawful practices and directed the Company to bargain collectively with the Union. The Board also adopted the Examiner's findings that a speech by Shay was within the protection of section 8(c) and did not violate the Act, and that the Company did not apply its no-solicitation rule in a discriminatory manner. The Board accordingly dismissed the complaint relating to these charges and the Union has filed a petition to review (No. 19452). Also pending before us, in No. 19515, is the Board's petition to enforce the order entered against the Company.

The underlying facts established in findings of the Examiner, approved by the Board, and supported by substantial evidence, are as follows: The Company, which has its general offices and its administrative staff at its plant in Fall River, Massachusetts, operates a plant in North Carolina employing 106 production and maintenance employees, mostly women, engaged in the manufacture of shirts. In the spring of 1963, the Union, already the bargaining agent for the employees in Massachusetts, began organizing activities among the Company's employees in North Carolina. By early October, the Union had obtained signed authorization cards from more than one-half of the plant's production and maintenance workers. On October 14, 1963, the Union wrote to the Company advising of this fact, and requesting that the Company recognize and bargain with the Union. The Union offered to submit the authorization cards to a count by an impartial third party.

On October 16, the Company posted a notice on plant bulletin boards stating its opposition to the Union's campaign and mailed a copy of the notice to each employee. Plant manager Shay, by letter of October 22, rejected the Union's claim to majority status and its request for recognition and bargaining, suggesting that the Union petition for a Board-conducted representation election.

The next day, October 23, the Union filed a representation petition with the Board. After a hearing on November 22, the Regional Director issued a Decision and Direction of Election on December 4, and scheduled a representation election to be conducted on December 19 among the plant's production and maintenance workers. In this decision the Regional Director found that the Company's floorladies were supervisors under the Act and therefore were to be excluded from the unit.

The Board found that the Company's floorladies warned the employees that

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plant manager Shay would close down the plant rather than deal with the Union, in some cases threatened to make it hard on union supporters, and interrogated employees concerning their union activities. On December 18, Shay convened the employees and delivered a speech concerning the union. That same day, the Union filed an unfair labor practice charge with the Board. The Regional Director canceled the representation election, and subsequently granted the Union's request to withdraw its representation petition.

I. The Company's Right to Relitigate the Supervisory Status of Its Floorladies.

The first question before us is the supervisory status of the floorladies, since it was on the basis of that status that activities of the floorladies were held to constitute a violation of section 8(a)(1) on the part of the Company. At the unfair labor practice hearing before the Examiner, the Company attempted to establish that the floorladies were not supervisors under the Act. The Examiner held that since no appeal had been taken from the Regional Director's determination of December 4 that the floorladies possessed supervisory status, the issue could not be relitigated in the present proceeding. The Examiner relied on Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 158, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), and the Board's Rule § 102.67(f), adopted in 1961, which provides that 'failure to request review (of the Regional Director's determination) shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding.' 3 The Company filed specific exceptions to this ruling, but the Board's opinion does not make any reference to them. Board counsel now argues that we, too, are bound by the Regional Director's decision in light of the Company's failure to appeal that decision immediately to the Board.

Prior to 1961 the Board itself heard representation questions and determined the proper unit for an election. In that framework a series of decisions evolved with respect to contest of such Board determination. It was early held that parties could not obtain judicial review of the Board's determination of the proper unit for an election at the time such determination was made. 4 Congress expressly recognized that allowing such appeals would delay the holding of many elections and encourage labor strife. 5 Upon the finding of an unfair labor practice for refusing to bargain with the union after its post-election certification, the company could appeal to the courts and at that time test the validity of the earlier unit determination. 6

It was also early held by the Board, 7 with the concurrence of the courts, 8 that

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at the subsequent hearing on the charge of refusal to bargain the Board need not allow the company to relitigate before the trial examiner or the Board questions concerning the unit determination previously made by the Board. In short, the company's appeal to the court had to be based on the record made at the earlier representation hearing.

When the unfair labor practice charge following a representation proceeding was not a refusal to bargain, however, the Board did not completely preclude relitigation, in the unfair labor practice hearing, of a question determined at the representation hearing. The leading decision is Leonard Niederriter Co., 130 N.L.R.B. 113 (1961), where the company was charged with an unfair labor practice for discharging an employee whom the Board had found to be an employee rather than a supervisor in a previous representation proceeding. The Examiner said:

It is the trier of these facts' understanding, based upon a study of the following cited cases, that the Board's findings and conclusions in a prior representation case existing at the time of such decision are binding on the Trial Examiner in a subsequent unfair labor practice proceeding absent evidence which was newly discovered or unavailable to the respondent at the time of the representation hearing. (130 N.L.R.B. at 120, n. 9.)

The Board disagreed, holding:

Contrary to the Trial Examiner, the finding in the earlier representation case * * * that Schwartz was not a supervisor did not finally and conclusively resolve that issue for the purposes of this case involving alleged violation of Section 8(a)(3) and (1) of the Act. (130 N.L.R.B. at 115, n. 2.)

Prior to the Board's Niederriter decision, Congress, aware of the huge backlog of cases confronting the Board, due in large part to the number of representation petitions on file, 9 amended the Taft-Hartley Act to allow the Board to delegate to its Regional Directors the power to make unit determinations, to order elections and to certify the results thereof, subject to discretionary review by the Board. 10

In 1961, subsequent to Niederriter, the Board promulgated regulations regarding such delegation. Section 102.67(b) of the Board's rules provides that any party to a representation proceeding may file a request for review by the Board within ten days after the decision of the Regional Director.

Section 102.67(f), relating to failure to seek or accord such review by the Board, provides as follows:

The parties may, at any time, waive their right to request review. Failure to...

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