Foreman & Clark, Inc. v. National Labor Relations Bd.

• Decision Date: 30 July 1954
• Docket Number: No. 13894.,13894.
• Citation: 215 F.2d 396
• Parties: FOREMAN & CLARK, Inc. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Ninth Circuit

215 F.2d 396 (1954)

FOREMAN & CLARK, Inc. v. NATIONAL LABOR RELATIONS BOARD.

No. 13894.

United States Court of Appeals, Ninth Circuit.

July 30, 1954.

COPYRIGHT MATERIAL OMITTED

Sheppard, Mullin, Richter & Balthis, George R. Richter, Jr., Roy Littlejohn, Los Angeles, Cal., for petitioner.

George J. Bott, Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Fannie Boyls, Ruth V. Reel, Washington, D. C., for respondent.

Before HEALY, BONE and LEMMON, Circuit Judges.

LEMMON, Circuit Judge.

"The flattery of hope and the impressions of fear", referred to by common-law writers in connection with confessions,¹ can intrude themselves into labor relations as well.

The National Labor Relations Act, 29 U.S.C.A. § 151 et seq., hereinafter referred to as the Act, protects the employee from "unfair labor practices", as defined by statute. Such practices include, by necessary implication, any "threat of reprisal or force or promise of benefit."²

But the power of the National Labor Relations Board, hereinafter referred to as the Board, is not limited to protecting the employee from such "unfair labor practices". It may also prevent "discriminatory use of company facilities (interfering) with the employees' freedom of choice in the selection of a bargaining representative".

It is our task to determine whether, in the light of the entire record in the instant case, Foreman & Clark, Inc., referred to herein as the Company, has thus interfered with its "employees' freedom of choice". In such determination, we must be guided by two working principles: (a) "The Board's findings are entitled to respect", because of the deference that should be paid to its "expertise" — a word of which Mr. Justice Frankfurter seems fond;³ and (b) its findings "must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both". (Emphasis supplied.)

In striking a rational balance between these two considerations, it will not do for courts to give lip-service to the "expertise" of an administrative agency, and then scrutinize with a captious eye and weigh with an apothecary's scale every finding made by such an agency. If there is on the record considered as a whole actually substantial evidence to support the findings, they should be upheld and the resulting order should be enforced.

1. Statement Of The Case.

Since the Company has raised a number of procedural objections, a somewhat full outline of the proceedings before the Board will be helpful.

In Case No. 21-RC-1836, hereinafter referred to as No. 1836, a petition was filed with the Board on March 6, 1951, by Local 297, Amalgamated Clothing Workers of America, CIO, hereinafter referred to as the Union, seeking certification as representative of employees performing alterations in six of the Company's nine retail clothing stores in Southern California. On March 22, 1951, the petition was amended to cover employees performing alteration work in all of the aforesaid nine retail stores. Two of the stores are situated at 707 South Hill Street and 5657 Wilshire Boulevard, Los Angeles, and the other seven establishments are in Hollywood, Pomona, Huntington Park, Burbank, Long Beach, San Diego, and San Bernardino.

The "unit" for which a "certification of representatives" was sought "included: All Tailor Shop employees, including Tailors, Bushelmen, Finishers, Operators, Rippers and Pressers". It excluded "All others, including watchmen, guards, professional employees and supervisors as defined in the * * * Act, as amended".

On May 28, 1951, a hearing was held at Los Angeles before a hearing officer of the Board. On August 31, 1951, the Board issued a "Decision and Order" dismissing the petition, one member dissenting. The decision recited that "the Employer agrees with the geographic scope of the proposed unit, (but) contends that an overall unit including salesmen and will-call boys, in addition to those employees sought by the Petitioner (the Union), is the only appropriate unit." The majority decision found "no persuasive reason why the alteration shop employees should constitute a separate appropriate unit on a craft, professional or departmental basis," and that "No question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9(c) (1) and Sections 2(6) and (7) of the (National Labor Relations) Act," infra.

On November 7, 1951, the Union filed a "Motion for Reconsideration" of the Board's decision of August 31, 1951. The Company on November 23, 1951, filed a "Reply Brief" in opposition to the motion for reconsideration.

On January 16, 1952, the Board issued its "Supplemental Decision and Direction of Election" setting aside its original Decision and Order of August 31, 1951, and containing a "Direction of Election" "by secret ballot * * * as early as possible, but not later than 30 days from the date of this Direction".

In this supplemental decision, the Board found that "The tailors, bushelmen-fitters, finishers, operators, rippers and pressers at the Employer's stores are all engaged in manual work, much of it highly skilled, which is easily differentiated from the duties of the selling personnel. Tailor shop employees are paid on a different basis than (sic) other employees and in one instance work at times when the remainder of the store is closed. They are separately located and in most instances the salesmen are under direction not to enter their work quarters".

The Board further found that the unit was not "inappropriate as a departmental grouping merely because a limited number of these employees do a small amount of work outside of the department". Finally, the Board found, "On the entire record" that "the alteration employees constitute a basically highly skilled, distinct, and homogeneous departmental group which, in the absence of any past or present representation on a broader basis, constitutes a unit appropriate for the purposes of collective bargaining". (Emphasis supplied.)

On February 4, 1952, the Company filed a Motion to Stay Direction of Election, to Vacate Supplemental Decision, for Reconsideration, etc. The motion alleged that the Board's Supplemental Decision and Direction of Election of January 16, 1952, was filed without holding an additional hearing, without hearing any new evidence, and with "no opportunity * * * afforded to Foreman & Clark, Inc., to rebut by evidence the statements made in the motion for reconsideration". The Company's motion also complained that, "while for all steps in this proceeding up to and including the Decision and Order of * * * August 31, 1951, the nature and requirements of the formal or informal procedures have been stated and published in the Federal Register by the Board, (f) or all subsequent steps in these proceedings, no statement of the nature or requirements of the formal or informal procedures available have been published by the Board in the Federal Register". The motion then quoted in part Section 3(a) of the Federal Administrative Procedure Act, 5 U.S.C.A. § 1002(a), providing that every agency shall publish in the Federal Register "statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal or informal procedures available", etc. (Emphasis supplied in the motion)

On March 11, 1952, the Board denied the Company's motion to stay, etc. The election was held on April 4, 1952, by the employees in the Company's men's and women's alteration departments at the nine stores mentioned above. The Union lost by a vote of 18 to 17.

Four days later, the Union filed a letter of "formal protest" regarding the election, alleging that "management's representatives assembled the employees on the premises of the Company, during the working hours of such employees, and there made statements against the Union, without the Union having the opportunity or the use of equal facilities to reply to management's distortions, half-truths, and falsehoods." The Board was requested to set aside the election.

On May 13, 1952, the Regional Director of the Board filed his report on the Union's objections. The report stated that the Company's president visited each of the nine affected stores and made an informal speech to the alteration department employees; that there was evidence that some of the employees knew a few days in advance that the president was going to visit them, but, the report added, the Union's representatives "deny that they knew of the speeches before the evening of April 3 (the day before the election)". Three of the speeches were made two days before the election, and six were made on the day before the election.

The report further recited that the eligible voters were called together in the alteration shop at each store to hear the president of the Company during working hours; that in general the employees had no alternative but to attend; that there was no evidence that the Company president made any statement to the employees which might be held to be coercive; that there was no showing that the Union requested the right to address the employees, or that any employees requested the privilege or attempted to rebut the president's statement; that no representative of the Union knew of these meetings until the last one had been held; that the timing of the president's speeches was such as to make impossible the holding of any further meetings for the purpose of giving the Union an opportunity to rebut his statements; that the Company in effect denied the Union such an opportunity, by timing the speeches as it did; and that by addressing the employees in small groups the Company may have interfered with the election.

The Regional...