N.L.R.B. v. Gold Standard Enterprises, Inc., 78-2367

• Decision Date: 03 December 1979
• Docket Number: No. 78-2367,78-2367
• Citation: 607 F.2d 1208
• Parties: 102 L.R.R.M. (BNA) 2764, 87 Lab.Cas. P 11,637 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOLD STANDARD ENTERPRISES, INC., et al., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1208

607 F.2d 1208

102 L.R.R.M. (BNA) 2764, 87 Lab.Cas. P 11,637

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOLD STANDARD ENTERPRISES, INC., et al., Respondent.

No. 78-2367.

United States Court of Appeals Seventh Circuit.

Argued Sept. 24, 1979.

Decided Oct. 31, 1979.

Rehearing Denied Dec. 3, 1979.

Joseph Ferrara, N.L.R.B., Washington, D. C., for petitioner.

David W. Adelman, Chicago, Ill., for respondent.

Before SWYGERT, PELL and BAUER, Circuit Judges.

PELL, Circuit Judge.

This case is before the court on the application of the National Labor Relations Board (Board) for enforcement of its order issued on February 1, 1978, against Gold Standard Enterprises, Inc., Gold Standard Liquor Store at Ridge Avenue, Chalet Wine and Cheese Shops Ltd. at Fullerton Avenue, and Chalet Wine and Cheese Shops, Ltd. at Highland Park (Gold Standard). The Board's Decision and Order is reported at 234 NLRB No. 64 (1978).

Because some developments occurring during the course of litigation were not brought to the attention of the panel hearing oral argument in this case until that argument was well advanced, which developments we regard, upon consideration, as dispositive of this case, we will set out those particular matters herein.

Before doing so, we will mention other matters which Were brought to the attention of the court by the briefs filed by the parties or the appendix filed by the Board. A hearing was held on the General Counsel's complaint before an Administrative Law Judge (ALJ) on March 28 and 29, 1977. After setting forth the statement of the case and findings of fact, the ALJ concluded as a matter of law that Gold Standard had not engaged in unfair labor practices within the meaning of Section 8(a)(4), (3) and (1) of the Act and accordingly dismissed the complaint in its entirety. The Board in its Decision and Order by a 2 to 1 decision declined to agree with the disposition by the ALJ and found as a matter of law that the unfair labor practices as charged in the complaint had been committed by Gold Standard. The Board order was in part to cease and desist certain unfair labor practices (the negative portion of the order) and in part to take certain affirmative action. The negative and affirmative aspects are succinctly summarized in the notice to employees which Gold Standard was required to post at its places of employment:

WE WILL NOT threaten our employees that they or others will suffer bodily harm because of their union or other protected concerted activities.

WE WILL NOT discriminate against our employees by discharging and failing to reinstate them or failing to transfer them because of their union activities.

WE WILL NOT discriminate against our employees because they filed unfair labor practice charges with the National Labor Relations Board.

WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act.

WE WILL offer Helen Alcantar immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights or privileges.

WE WILL make Helen Alcantar whole for any loss of earnings or other benefits she suffered as a result of the discrimination against her, together with interest.

WE WILL offer Billie Van Wieren immediate transfer to the position to which she requested transfer at our Fullerton Avenue Chalet in Chicago, Illinois, displacing, if necessary, any employee assigned to or working in that position since the date of her request, and we shall reimburse her for any travel expenses incurred by reason of our unlawful refusal to transfer her plus interest.

Board Member Murphy, dissenting, agreed with the ALJ that Gold Standard did not violate the Act as alleged, pointing out that the ALJ had made his finding upon the entire record from his observation of the witnesses and that unless the preponderance of the evidence on the record clearly undermined those findings the Board should not disturb them. She also pointed out that the Board had always been reluctant to reverse an ALJ's credibility resolutions, especially where such resolutions were based on the demeanor of the witnesses. One of the principal bases for the majority, according to Member Murphy, in not accepting the credibility determination of the ALJ was that the ALJ had omitted any reference to the testimony of two employees which the majority termed as being uncontradicted. Member Murphy observed that in her opinion it was implicit in the ALJ's general statement regarding credibility that he had discredited the testimony of any witnesses to the extent such testimony conflicted with the facts as described by the witnesses whom he had credited.

The present case was initiated in this court on October 26, 1978, by the Board filing its application for "enforcing in whole said order (of February 1, 1978) of the Board, and requiring (Gold Standard) to comply therewith." That something less than the "whole said order" was that which the Board sought to have this court enforce was not reflected in the briefs of the parties filed in the present case other than in the Board's brief, a final footnote contained the following unexplained reference, "Any company argument that the case is moot because of technical compliance fails in the face of the settled principle that Board orders impose a continuing obligation barring any resumption of unfair labor practices." Gold Standard's brief filed in this case contained no contention regarding compliance, technical or otherwise, but addressed itself to the merits of the February 1978 order.

It was not until oral argument by counsel for Gold Standard that it was brought to the attention of the panel that there had been a prior application for enforcement of the February 1978 order which application had been dismissed. Pursuit of this matter at oral argument and subsequent examination of the files of this court developed that on April 27, 1978, an application for enforcement of the order of February 1, 1978, was filed in this court, No. 78-1543, which application was substantially identical to the present application filed on October 26, 1978. An answer to the first application was in due course filed on behalf of Gold Standard on May 16, 1978. On May 26, 1978, the Board filed its motion to withdraw without prejudice its application for enforcement stating in the motion that Gold Standard was "complying with the Board's order in a manner satisfactory to the Board, thus dispensing with the necessity of further litigation at this time." The application was dismissed by the court on June 7, 1978, without prejudice.

On February 2, 1979, Gold Standard filed a motion to dismiss in the present case, No. 78-2367, on the basis that all matters of the Decision and Order of February 1, 1978, had been complied with by Gold Standard. The Board filed objections to this motion on the basis that subsequent to the court's dismissal of the first application, new unfair labor practice charges in Board cases, No. 13-CA-17811 and 13-CB-8021 were filed against Gold Standard and a union. It appears from the objections filed that the union party was one which was being recognized by Gold Standard although it did not represent a majority of its employees. Although there was reference to a "sweetheart contract" in the Board's February 1 order under review, the union which was made a party in the new unfair labor practice proceedings was not the union of which the discharged employees were members, and the February 1, 1978, order does not appear to be, directly at least, concerned with any unfair labor practice charge arising out of Gold Standard's recognition of a union not representing a majority of its employees. The motion to dismiss was denied by this court and a briefing schedule was set up with some extensions being granted during a time that it appeared settlement negotiations were underway.

It was also developed from oral argument discussion of this matter, and from files of this court, that Gold Standard had complied with the affirmative aspects of the February 1, 1978, order, relating to the two specifically mentioned employees. The Board's position at oral argument was that the dismissal was "without prejudice" and that the Board had an undoubted right to pursue the negative aspects of its original order on the cease and desist matter when further or new unfair labor practices had been committed. There was no explication, however, as to why the Board in its second application did not narrow this just to those matters as to which there had not been compliance. It was also developed that there had been a full evidentiary hearing on the new unfair labor practices which had been charged in the complaint and that a decision adverse to the company had been rendered by the ALJ.

We, of course, are not unmindful that presumptively the members of this court are acquainted with all of the records of this court. However, as a practical matter, with the great volume of cases filed in this court such a presumption of knowledge is unreal in the absence of the parties' request that such notice be taken. In preparing for oral argument, reading six sets of briefs for one day of arguments leaves little time for searching the records and files for points not raised.

In the context of this background information, we now reach the point of determining whether we should also reach the merits of the issue of enforcing the allegedly still viable parts of the Board's order of February 1, 1978. If we reach the merits, we will have to decide whether the Board's order to cease and desist is supported by substantial evidence on the whole record. The situation we have here of the Board disagreeing with the factual determinations of the ALJ has been addressed in a number of judicial decisions which unfortunately have not...