Barrus Construction Company v. NLRB
| Decision Date | 18 July 1973 |
| Docket Number | No. 72-1544.,72-1544. |
| Parties | BARRUS CONSTRUCTION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Fred W. Elarbee, Jr., Atlanta, Ga. (David M. Vaughan and Constangy & Prowell, Atlanta, Ga., on brief), for petitioner.
Jonathan G. Axelrod, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, Patrick
Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leonard M. Wagman, Atty., N. L. R. B., on brief), for respondent.
Before WINTER, CRAVEN and WIDENER, Circuit Judges.
This is a petition by employer Barrus Construction Company challenging the National Labor Relations Board's long established procedure of consolidating for a single hearing objections to a representation election and charges of unfair labor practices. We again approve the consolidation procedure and, on the facts of this case, enforce the order of the Board.
Following a victory by the International Union of Operating Engineers in a representation election conducted at the company's plant in Kinston, North Carolina, the company filed timely objections to the election with the National Labor Relations Board. The union thereafter filed an unfair labor practices charge with the Board, alleging that employee Quinn had been wrongfully discharged by the company in violation of 29 U.S.C. § 158(a)(1) and (3). After a hearing at which the unfair labor practice charge and the objections to the representation election had been consolidated, the Trial Examiner validated the election and found that the company had unlawfully discharged Quinn. Pursuant to a complaint by the Regional Director alleging that the company refused to bargain with the union, the Board affirmed the Trial Examiner's findings, certified the union as the exclusive collective bargaining representative, and ordered the company to bargain with the union.
The company has now petitioned this court, pursuant to 29 U.S.C. § 160, to review and set aside the order of the Board requiring that it bargain collectively with the union as the exclusive representative of the employees in the appropriate unit.1 The company challenges both the results of the election and the procedural validity of the hearing, contending primarily that its rights were prejudiced by the manner in which the hearing was consolidated and conducted. We affirm the findings of the Board and grant the Board's cross-application for enforcement of its order.
On February 11, 1970, the union filed an election petition seeking to represent all hourly paid production and maintenance employees at the company's asphalt paving facility in Kinston. A stipulation for certification upon consent election was executed by the parties on March 9, 1970, and an election by secret ballot was conducted on April 16, 1970. Of the 400 eligible voters, 396 actually cast ballots, with the union receiving 201 votes.
Almost immediately following the election, the company filed its objections to conduct affecting the outcome of the election. The company alleged (1) that at a meeting of company employees a union official named Snodgrass suggested putting kerosene in the lunch boxes of anti-union employees, (2) that employee Willie Quinn, a union advocate, formed a "violence club" to intimidate non-union employees, (3) that the union paid employees for their support and votes, and (4) that union officials misrepresented certain facts in replying to a company letter to employees.
The Regional Director of Region 11 of the NLRB investigated the company's objections to the election and, in a report dated July 6, 1970, recommended that a hearing be held to resolve conflicting evidence regarding the issues raised by objections 1 and 2. He further recommended that objections 3 and 4 be overruled.
The company filed exceptions to the report, urging that the recommended hearing include evidence regarding not only objections 3 and 4, but also newly discovered evidence of other threats and violence. The Board overruled objection 4, but ordered the hearing expanded to include "both objection 3 and alleged threats of violence and retaliation."
On May 26, 1970, while the Board was considering the company's objections, the union filed its unfair labor practice charge, alleging that the company had wrongfully discharged employee Willie Quinn because of his support of the union.
The Regional Director then ordered the consolidation of the company's case challenging the election and the union's case challenging the discharge of Quinn "in order to effectuate the purposes of the Act and to avoid unnecessary costs and delay."2 The company filed a motion to sever the proceedings, pursuant to 29 C.F.R. § 102.33(d) (1972), alleging a conflict of interest in that the same attorney represented the Board in both cases. The Trial Examiner considered the conflict of interest "unlikely" and denied the motion to sever.
In a decision issued March 30, 1971, after a full hearing, the Trial Examiner found that the company's objections to the election were without merit and that the company had unlawfully discharged Quinn. The company has taken two basic positions on appeal from the Board's affirmance of these findings. It argues that the manner in which the consolidated hearing was conducted denied the company a fair opportunity to present its case, and it asserts that the election did not afford the employees a free and untrammeled choice.
In challenging the validity of the hearing, the company asserts that it was denied due process when the Trial Examiner (1) denied the motion to sever the consolidated hearing, (2) restricted the scope of the hearing to certain issues, and (3) refused to consider the testimony of a particular witness. We will consider each claim separately.
Initially, we note the standard by which we must assess the company's due process claims. The standard is simply whether there has been a fair hearing. NLRB v. Indiana & Mich. Elect. Co., 318 U.S. 9, 28, 63 S.Ct. 394, 87 L.Ed. 579 (1943).
So long as the objecting party . . . is given the opportunity to be heard, to call and cross-examine those who are the source of Board evidence, and to present pertinent evidence of its own the hearing is fundamentally fair and satisfies the requirements of due process.
NLRB v. Bata Shoe Co., 377 F.2d 821, 826, 827 (4th Cir.), cert. denied, 389 U. S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967). Accord, NLRB v. Poinsett Lumber & Mfg. Co., 221 F.2d 121, 123 (4th Cir. 1955) ().
The company argues that consolidation was improper here because a conflict of interest confronted the attorney who simultaneously undertook to represent the Board in the representation case and the General Counsel in the unfair labor practice case. It is claimed that the attorney's role regarding some of the issues relevant to the unfair labor practice case3 precluded his absolute neutrality in the representation case.4 The company asserts that the conflict of interest was particularly acute here because of the close connection of the facts underlying the consolidated cases. For example, the conduct of employee Quinn was at issue in each case. The union and the Board, in the unfair labor practice case, claimed that Quinn was wrongfully discharged because of his pro-union activity. The company, however, asserted that Quinn was discharged for threatening fellow employees, and this activity was one of the company's main objections to the election. In this factual situation, the company suggests that the attorney resisted the introduction of evidence tending to show questionable conduct by Quinn in order to enhance his chances of success in the unfair labor practice charge. This position of supposed advocacy, it is claimed, caused the attorney to breach his duty in the representation case to maintain neutrality as to the merits and to strive for admission of such evidence so as to insure as complete a record as possible.
Consolidation of an unfair labor practice case with a representation case in a single hearing is a Board practice well recognized by the courts. E. g., Bata Shoe, supra; NLRB v. Mark J. Gerry, Inc., 355 F.2d 727, 729 (9th Cir.), cert. denied, 385 U.S. 820, 87 S.Ct. 46, 17 L. Ed.2d 58 (1966); NLRB v. Dal-Tex Optical Co., 310 F.2d 58, 61 (5th Cir. 1962). Both long ago and recently we have repeatedly approved this practice, recognizing that it is "a customary and proper procedure that saves time and expense." NLRB v. Dixie Shirt Co., 176 F.2d 969, 970 (4th Cir. 1949).
An alleged conflict of interest said to arise from the dual role played by the Board's attorney in consolidated proceedings may be more apparent than real, NLRB v. Chelsea Clock Co., 411 F. 2d 189, 194 (1st Cir. 1969), and a denial of due process cannot be established by this theoretical conflict, at least where, as here, the company was adequately represented by competent counsel. See Lane v. NLRB, 186 F.2d 671, 675 (10th Cir.), cert. denied, 342 U.S. 813, 72 S.Ct. 26, 96 L.Ed. 614 (1951). Due process concerns itself with substance and not with form. NLRB v. Mackay Radio & T. Co., 304 U.S. 333, 351, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). As Judge Widener points out, there were some 59 objections and motions to strike made during the hearing, with the Board's attorney making 34 of them and joining in nine of the Union's 17 objections. We think such participation insufficient to establish such a degree of partisanship that would destroy the fairness of the hearing. The company was given ample opportunity to produce evidence of its own and to cross-examine adverse witnesses. See Lane, supra. The company's reliance on Chelsea Clock, supra, is misplaced. That court never reached the conflict of interest question. Moreover, the alleged conflict was both factually and theoretically...
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