N.L.R.B. v. Cambridge Wire Cloth Co., Inc.
| Decision Date | 09 June 1980 |
| Docket Number | No. 78-1570,78-1570 |
| Citation | 622 F.2d 1195 |
| Parties | 104 L.R.R.M. (BNA) 2643, 89 Lab.Cas. P 12,091 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The CAMBRIDGE WIRE CLOTH COMPANY, INC., Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Collis Suzanne Stocking, N.L.R.B., Washington, D.C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Andrew F. Tranovich, N.L.R.B., Washington, D.C., on brief), for petitioner.
Warren M. Davison, Baltimore, Md., (Earle K. Shawe, Leslie R. Stellman, Shawe & Rosenthal, Baltimore, Md., on brief), for respondent.
Bernard Kleiman, Gen. Counsel, Chicago, Ill., Frank Petramalo, Jr., Jeffrey L. Gibbs, Bredhoff, Gottesman, Cohen & Weinberg, Washington, D.C., on brief, for amicus curiae The United Steelworkers of America, AFL-CIO.
Before WIDENER and SPROUSE, Circuit Judges, and SHIRLEY B. JONES, United States District Judge for the District of Maryland, sitting by designation.
The National Labor Relations Board (Board) petitions this Court pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), for enforcement of its order requiring Respondent, The Cambridge Wire Cloth Company, Inc. (Cambridge Wire), to bargain with the United Steelworkers of America, AFL-CIO (Union). Cambridge Wire resists enforcement on the ground that the Union election, upon which the Board's order was based, was invalid because of certain improprieties, thus necessitating a new election. For reasons hereinafter set forth, the Board's petition for enforcement must be denied.
On July 15, 1977, the Union, seeking to become the certified bargaining representative of Cambridge Wire's employees, petitioned the Board to conduct an election. The election was held on September 28, 1977, under the Board's supervision, and a majority of the eligible voters cast their ballots for the Union. Cambridge Wire challenged the propriety of the election and filed objections with the Board's Regional Director on October 4 essentially contending:
a) that the Union was responsible for defacing official election notices by affixing Union labels stating "Vote Yes" on the plexiglass front of bulletin boards which contained sample ballots of the election;
b) that two persons acting on behalf of or with the acquiescence of the Union coerced and threatened various employees to vote for the Union;
c) that the Union issued material misrepresentations in its campaign literature, specifically:
(1) this union would never go out on strike;
(2) there would never be any "sympathy" strikes; and
(3) the employees would be dealing with a local union.
The Regional Director of the Board filed his "Supplemental Decision and Certification of Representative" on December 2 overruling Cambridge Wire's objections and certifying the Union. Cambridge Wire sought review of the Regional Director's decision pursuant to 29 C.F.R. § 102.69 (1979). The Board denied review on December 30 concluding that Cambridge Wire "raised no substantial issue warranting review." The Union filed a complaint with the Board on January 27, 1978 alleging that Cambridge Wire had refused to recognize it. Cambridge Wire, although admitting the technical correctness of the complaint, continued to challenge the election with the same allegations of improprieties that it had previously made, and further asserted that it had been improperly denied a hearing by the Regional Director and the Board as to these alleged wrongs. The Board found that Cambridge Wire had engaged in unfair labor practices within Section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5). 236 NLRB No. 190 (June 30, 1978). The Board found it unnecessary to reach the merits of Cambridge Wire's allegations, concluding that absent arbitrary action, the Regional Director had the discretion not to direct a hearing. The Board found no abuse of discretion and the facts as previously found by the Regional Director were not disturbed. This appeal followed.
We find it unnecessary to reach the merits of Cambridge Wire's objections to the election because we find that the Board failed to comply with its own regulations.
Cambridge Wire contends, for the first time on appeal, that the Regional Director failed to transmit to the Board the complete record in this case. Cambridge Wire maintains that it had assumed that upon filing its request for review to the Board from the Regional Director's ruling, all the material presented to him would have been transmitted to the Board. The error, Cambridge Wire claims, was on the Board's part in not reviewing the complete record.
The record of the proceedings before the Regional Director consists of:
the petition, notice of hearing with affidavit of service thereof, motions, rulings, orders, the stenographic report of the hearing and of any oral argument before the regional director, stipulations, exhibits, documentary evidence, affidavits of service, depositions, and any briefs or other legal memoranda submitted by the parties to the regional director or to the Board, and the decision of the regional director, if any. 29 C.F.R. § 102.68 (1979).
The record to be transmitted to the Board consists of:
The notice of hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exceptions, documentary evidence, together with the objections to the conduct of the election or conduct affecting the results of the election, any report on such objections, any report on challenged ballots, exceptions to any such report, any briefs or other legal memoranda submitted by the parties, the decision of the regional director, if any, and the record previously made as described in § 102.68, shall constitute the record in the case. Materials other than those set out above shall not be a part of the record; except that in a proceeding in which no hearing is held, a party filing exceptions to a regional director's report on objections or challenges, a request for review of a regional director's decision on objections or challenges, or any opposition thereto, may append to its submission to the Board copies of documents it has timely submitted to the regional director and which were not included in the report or decision. 29 C.F.R. § 102.69(g) (1979).
The Board contends that the regulation clearly states that where there has been no hearing before the Regional Director, it is incumbent upon the party seeking review before the Board to append to its exceptions materials, such as in the present case, that were submitted to the Regional Director but which were omitted from his report or decision. Voluminous material containing, in part, affidavits and campaign literature, was submitted to the Regional Director. Appended to his decision of December 2, 1977, were three pictures depicting the alleged defacement by the Union of bulletin boards containing the sample ballots. This decision (with the three pictures appended), Cambridge Wire's request of the Board for review and a memorandum of law were all that the Board apparently considered in the denial of Cambridge Wire's request for review. Numerous items which were before the Regional Director were not transmitted to the Board. The bone of contention is whose responsibility it was to transmit to the Board the material that was before the Regional Director.
We are asked to construe a somewhat ambiguous regulation, 29 C.F.R. § 102.69(g) (1979). The Sixth Circuit recently addressed this issue in Prestolite Wire Division v. NLRB, 592 F.2d 302 (6th Cir. 1979). In Prestolite Wire, the Regional Director was given numerous affidavits concerning objections to an election. The Regional Director apparently considered the affidavits in his decision, which was rendered without a hearing, but did not submit them as part of the record to the Board when Prestolite Wire sought review. As in the instant case, Prestolite Wire argued that sections 102.68 and 102.69(g) prescribe what constitutes the record before the Regional Director and what he must transmit to the Board on a request for review of his own decision.
The Court in Prestolite Wire held that "(w)ithout expressly ruling that the Regional Director is invariably required under Section 102.69(g) to transmit to the Board all of the materials considered by him (although the language says 'shall'), we think that the better practice is to do so and we are unable to fault the company for having failed to anticipate that this procedure would not have been followed here." 592 F.2d at 305. The Court reasoned that the Regional Director assembles the record and then transmits it to the Board and thus is the proper party to bear the responsibility of transmitting a complete record. We adopt the reasoning and holding of Prestolite Wire on this issue.
The Board argues that 29 C.F.R. § 102.69(g) supports its assertion that it was Cambridge Wire's responsibility to transmit the record. Subsection (g) permits the party filing objections to "append to its submission to the Board copies of documents it has timely submitted to the regional director and...
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