377 F.2d 821 (4th Cir. 1967), 10552, N. L. R. B. v. Bata Shoe Co.

Docket Nº:10552.
Citation:377 F.2d 821
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BATA SHOE COMPANY, Inc., Respondent. United Shoe Workers of America, AFL-CIO, Intervenor.
Case Date:April 06, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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377 F.2d 821 (4th Cir. 1967)



BATA SHOE COMPANY, Inc., Respondent.

United Shoe Workers of America, AFL-CIO, Intervenor.

No. 10552.

United States Court of Appeals, Fourth Circuit.

April 6, 1967

Argued Jan. 11, 1967.

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Elliott Moore, Atty., N.L.R.B., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Marsha E. Swiss, Atty., N.L.R.B., on brief) for petitioner.

Frederick T. Gray, Richmond, Va., (John O. Peters, Richmond, Va., Madeline Balk, New York City, Elbert H. Coles, Christopher J. Hoey, New York City, Williams, Mullen & Christian, Richmond, Va., and Seligman & Seligman, New York City, on brief) for respondent.

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Joseph L. Rauh, Jr., and John Silard, Washington, D.C., on brief for intervenor.

Before BRYAN, BELL and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order that Bata Shoe Company enter into collective bargaining with the United Shoe Workers of America, AFL-CIO (hereinafter the Union). Following a consent election 1 on April 23, 1965, the Union was certified as exclusive representative for production and maintenance employees at the Company's Belcamp, Maryland, plants. The Company's refusal to bargain with the Union enables judicial review of the certification incident to the Section 8(a)(5) unfair labor practice proceeding. 2

The Company has challenged on a plethora of grounds the election and certification of the Union. 3 The Company asserts generally that the integrity of the election was impaired by misrepresentations in Union campaign literature, coercive activity on the part of Union adherents, and confusion accompanying the conduct of the election which prevented eligible employees from exercising their franchise and improperly permitted others to vote.

The results of the election show that 1,082 ballots were cast for and 1,036 ballots against the Union, six ballots were voided, and forty-one challenged. There were approximately 2,583 potential participants. No resolution of the challenges was made since they were not sufficient in number to affect the results of the election.

The Company filed with the Regional Director for the Labor Board timely objections to the election in accord with Board rules. 4 Following prescribed procedure in stipulated consent elections, 5 the Regional Director made an ex parte investigation of the objections and issued a written report in which he recommended that the Company's objections be overruled in their entirety and that the Union be certified. After consideration of the Regional Director's report and the Company's written exceptions-- but without ordering a hearing-- the Labor Board rendered a decision in which it adopted the Regional Director's recommendations for the reasons set forth in his report and certified the Union as exclusive bargaining representative of the Company unit. The Labor Board, in deciding the election questions on the written record necessarily, under its own rules, determined at this juncture that the Company's exceptions did 'not raise substantial and material issues with respect to the conduct or results of the election * * *.' 6

Notwithstanding certification the Company continued its refusal to recognize

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and bargain with the Union and a Section 8(a)(5) unfair labor practice complaint was issued. 7 In its answer to the complaint the Company alleged, in addition to misconduct in connection with the election, that it had been denied a hearing on substantial and material issues of fact and law raised by its objections to conduct affecting the results of the election and its exceptions to the Regional Director's report.

Two days before the unfair labor practice hearing the Company filed with the Labor Board a motion to rescind the certification, to reconsider and permit the Company to be heard in the representation case, and to postpone the unfair labor practice hearing until final determination of the issues in the representation case. The Board by telegraphic order denied the motion 'with leave to the Employer to request the Trial Examiner to permit the issues raised in the Employers Objections and Exceptions filed in (the representation case) * * * to be heard * * *' in the unfair labor practice proceeding. The Board found 'the Employers contention that litigation of such issues in a complaint proceeding would substantially prejudice his rights * * * without merit.'

The 8(a)(5) hearing commenced with a discussion of the Labor Board's instructions in which the Trial Examiner conceded that he had not resolved the question of the extent of his responsibility in the representation matter and suggested that this be argued to him by the parties along with the other issues in the proceeding. The essence of the Trial Examiner's position was, as stated to the parties at the hearing, that the Company

'should seek to do whatever it is you think ought to be done in either the complaint case or the misrepresentation case. * * * And I would assume since you seek to have this certification set aside in effect, if not in fact in this proceeding by interposing your affirmative defenses that you wish to raise in this proceeding anything that you might have legitimately raised in the representation proceeding.'

At the invitation of the Trial Examiner, counsel for the Company outlined the various objections which had been set forth in its answer to the complaint, and then reviewed in some detail the nature of the evidence the Company was prepared to offer of alleged irregularities in the conduct of the representation election. Although the Trial Examiner subsequently reiterated that he would receive all evidence advanced by the Company in support of its objections to the election, the Company offered the oral testimony of but a single witness on a minor matter. 8 The Company explains its failure to come forward with additional evidence at the hearing on the ground that the Trial Examiner had no authority to act with respect to the certification in the case and, therefore, presentation of additional evidence would have been futile.

The Trial Examiner's decision, which was adopted by the Labor Board in its

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order to bargain, resolves the question of his authority in the unfair labor practice proceeding. The Trial Examiner states in his decision that

'in my view, the initial question before me was whether Respondent (Company) has offered me sufficient evidence to cause me to conclude that the Regional Director and the Board acted on erroneous or incomplete material findings, and the question of the merit of the objections is before me only to the extent that the evidence offered by Respondent (Company) requires reconsideration of the findings and conclusions in the representation case.'

The Trial Examiner goes on to conclude in his decision that apart from one minor matter, the Company

'adduced no evidence to controvert or supplement the findings of the Regional Director with respect to (its) * * * objections to the conduct of the election, and, absent such evidence, I consider myself bound by the conclusions previously reached by the Regional Director and affirmed by the Board in certifying the Union as representative of Respondent's employees.'


We are presented with a procedural question of controlling importance. Was the Company entitled to a post-election hearing on its objections to the election and if so entitled was it afforded a sufficient hearing in the Section 8(a)(5) proceeding? 9

Due process of law demands and the present Rules and Regulations of the Labor Board provide that where there is a substantial and material issue of fact relating to the validity of a representation election that a hearing be conducted at some stage of the administrative proceeding before the objecting party's rights can be affected by an enforcement order. United States Rubber Co. v. NLRB, 373 F.2d 602 (5th Cir. 1967); NLRB v. Lamar Elec. Membership Corp., 362 F.2d 505 (5th Cir 1966); NLRB v. Capital Bakers, Inc., 351 F.2d 45 (3d Cir. 1965); International Ladies' Garment Workers' Union v. NLRB, 339 F.2d 116 (2d Cir. 1964); NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712 (10th Cir. 1964); NLRB v. Joclin Mfg. Co., 314 F.2d 627 (2d Cir. 1963); NLRB v. The Lord Baltimore Press, 300 F.2d 671 (4th Cir. 1962); NLRB v. Poinsett Lumber Mfg. Co., 221 F.2d 121 (4th Cir. 1955); NLRB v. West Texas Utilities Co., 214 F.2d 732 (5th Cir. 1954); NLRB Rules & Regs. § 102.69, 29 C.F.R. § 102.69. To borrow the words of Judge Brown, writing for the Fifth Circuit, 'it is clear that § 8(a)(5) orders which rest on crucial factual determinations made after ex parte investigations and without a hearing cannot stand.' NLRB v. Air Control Prods. of St. Petersburg, Inc., 335 F.2d 245, 249 (5th Cir. 1954).

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Conversely, there is no requirement, constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification. See NLRB v. Sun Drug Co., 359 F.2d 408 (3d Cir. 1966); NLRB v. Nat'l Survey Serv., Inc., 361 F.2d 199 (7th Cir. 1966); NLRB v. Air Control Prods. of St. Petersburg, Inc., 335 F.2d 245 (5th Cir. 1964); NLRB v. J. J. Collins' Sons, Inc., 332 F.2d 523 (7th Cir. 1964); NLRB v. Clearfield Cheese Co., 322 F.2d 89 (3d Cir. 1963); NLRB v. O.K. Van Storage, Inc., 297 F.2d 74 (5th Cir. 1961); see generally 1 Davis, Administrative Law §§ 7.01-.07 (1958). A hearing is unnecessary, therefore, where if all the facts contended for by the objecting party 'were credited no ground is shown which would warrant setting aside the election.' NLRB v. Air Control Prods. of St. Petersburg, Inc., supra, 335 F.2d at 249; accord, NLRB v. Sun Drug Co., supra,...

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