Ex-Cell-O Corporation v. Little, Civ. A. No. IP 66-C-313.

• Decision Date: 13 December 1966
• Docket Number: Civ. A. No. IP 66-C-313.
• Citation: 268 F. Supp. 755
• Parties: EX-CELL-O CORPORATION, Plaintiff, v. William T. LITTLE, Regional Director, Twenty-Fifth Region National Labor Relations Board, and Owsley Vose, Trial Examiner, National Labor Relations Board, Defendants.
• Court: U.S. District Court — Southern District of Indiana

268 F. Supp. 755

EX-CELL-O CORPORATION, Plaintiff, v. William T. LITTLE, Regional Director, Twenty-Fifth Region National Labor Relations Board, and Owsley Vose, Trial Examiner, National Labor Relations Board, Defendants.

Civ. A. No. IP 66-C-313.

United States District Court S. D. Indiana, Indianapolis Division.

December 13, 1966.

Kenneth C. McGuiness, Washington, D. C., Riley M. Sharp, Elwood, Ind., for plaintiff.

Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., for defendants.

MEMORANDUM RULING ON MOTION FOR SUMMARY JUDGMENT

HOLDER, District Judge.

The defendants filed their motion to dismiss the complaint in this action, or in the alternative, for a summary judgment. The complaint filed June 29, 1966 seeks an order enjoining defendant, Vose, a trial examiner of the National Labor Relations Board, from closing an unfair labor practice hearing in which Ex-Cell-O Corporation (the Company) is respondent (Board Case No. 25-CA-2377) until defendant, Little, Regional Director of the Board's Twenty-fifth Region, produces certain documents requested in a subpoena duces tecum served upon him by the Company, but later revoked by the Board. The requested summary judgment is granted.

On October 22, 1964, pursuant to Section 9 of the National Labor Relations Act, a representation election was conducted among the production and maintenance employees at the Company's plant, to determine whether such employees desired to be represented for collective bargaining purposes by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO (herein "the Union"). A majority of the ballots cast were in favor of the Union. Thereafter, on October 29, 1964, the Company filed timely objections alleging that the election should be set aside because the Union's campaign literature misrepresented the employer's conduct and because Union agents engaged in pre-election conduct which restrained and coerced employees. In accordance with the National Labor Relations Board Rule and Regulations (Section 102.69), the Acting Regional Director conducted an investigation, and on December 29, 1964, issued a Supplemental Decision in which he stated the facts as determined from the investigation, applied Board precedents to the facts as found, and concluded that the objections should be overruled. On January 25, 1965, the Company filed with the Board a request for review of this decision in which it challenged two of the factual determinations made in the decision. The Board, by order dated April 23, 1965, granted the request for review and directed that a hearing be conducted for purposes of taking evidence to resolve the factual issues raised by the request for review. Pursuant to the Board's order, a hearing was held on May 18 and 19, 1965. The Company participated and was given full opportunity to examine and cross-examine witnesses, and to offer relevant evidence. On July 15, 1965, the Board's hearing officer issued a report in which he made factual findings on the disputed issues and recommended that the objections be overruled and that the Union be certified as the collective bargaining representative. Thereafter, on August 17, 1965, the Company filed timely exceptions to the report, and on October 28, 1965, the Board issued its Decision on Review in which it adopted the findings and the recommendation that the Union be certified.

On November 9, 1965, the Company notified the Union that it would not bargain because it wished to test the Board's certification. On November 23, 1965, on the basis of the Company's refusal to bargain, Regional Director Little issued a complaint in Board Case No. 25-CA-2377 alleging, inter alia, that the Company was engaging in an unfair labor practice in violation of Section 8(a) (1) and (5). On December 6, 1965, the Company filed an answer to the unfair labor practice complaint asserting, inter alia, that the certification of the Union was invalid and void. On December 9, 1965, the Board's General Counsel filed a motion to strike portions of the Company's answer to that complaint and for entry of summary judgment on the issue of the alleged violations of Section 8(a) (1) and (5) of the Act. Thereafter, on January 5, 1966, a Board Trial Examiner Thomas N. Kessel, ordered the Company to show cause why the motion for summary judgment should not be granted. On February 14, 1966, pursuant to Section 11(1) of the Act, Company counsel applied to the Board for a subpoena duces tecum requiring Regional Director Little to produce "all files, documents, reports, affidavits and records, and other papers pertaining to the investigation, or investigations" conducted by the Regional Director in the representation proceeding. As required by Section 11(1), the Board issued the requested...