N.L.R.B. v. Honaker Mills, Div. of Top Form Mills, Inc., SANMARK-STARDUS
| Decision Date | 28 February 1986 |
| Docket Number | SANMARK-STARDUS,INC,Nos. 85-1267,85-1359,s. 85-1267 |
| Citation | 789 F.2d 262 |
| Parties | 121 L.R.R.M. (BNA) 3232, 122 L.R.R.M. (BNA) 2985, 107 Lab.Cas. P 10,095 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HONAKER MILLS, DIVISION OF TOP FORM MILLS, INC., Respondent, In re, Petitioner. In the case of NATIONAL LABOR RELATIONS BOARD, Respondent, v. HONAKER MILLS, DIVISION OF TOP FORM MILLS, INC., Petitioner. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Gary W. Wright (Philip J. Lawson, Wimberly, Lawson & Cobb, Morristown, Tenn., on brief), for petitioner Sanmark-Stardust, Inc.
Evan J. Spelfogel (Patricia Costello Slovak, Burns, Summit, Rovins & Feldesman, New York City, on brief), for petitioner Top Form Mills, Inc.
Peter Winkler (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel; Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., on brief), for N.L.R.B.
Before WIDENER and SNEEDEN, Circuit Judges, and MICHAEL, District Judge for the Western District of Virginia, sitting by designation.
These cases concern the National Labor Relations Board's (NLRB or Board) petition for enforcement of its bargaining order issued against Honaker Mills, Division of Top Form Mills, Inc. (Top Form) on December 14, 1984. Sanmark-Stardust, Inc. (Sanmark), which purchased the Top Form facility that was the subject of the NLRB's order, at Honaker, Virginia on December 29, 1983, filed its petition for review of that NLRB order, and the two cases were consolidated for consideration. We also consider a subsidiary issue of whether the NLRB's order, should we determine it was properly issued, is enforceable against Top Form inasmuch as Top Form has sold its Honaker Mills facility in Honaker, Virginia to Sanmark, and currently retains no interest in or control over the labor practices at said facility. Top Form requests that should we determine that the order is not enforceable against Top Form, we should release Top Form from any responsibility to appear in connection with any further proceedings in this matter. We find no merit in either Sanmark's or Top Form's contentions, and enforce the Board's order.
On June 21, 1978, the International Ladies' Garment Workers' Union, AFL-CIO (Union), filed a petition with the NLRB seeking an election among the production and maintenance employees that Top Form employed at its Honaker, Virginia facility. A secret ballot election was conducted on August 8, 1978 which the Union won by a vote of 124 to 72.
Top Form filed timely objections to the election, alleging that the Union had engaged in various forms of pre-election misconduct. After the usual proceedings, the Board overruled Top Form's objections and certified the Union as the collective bargaining representative for certain of the employees of the Honaker, Virginia facility.
On June 20, 1979, the Union requested that Top Form commence collective bargaining. Top Form did not immediately respond to this request, except to state that it had referred the Union's request to "appropriate Company officials and Company Counsel." On July 24, 1979, the Union began a strike against Top Form that lasted until November of that year.
On August 15, 1979, the Union filed unfair labor practice charges against Top Form, alleging that Top Form had unlawfully refused to bargain with the Union. On the basis of these charges, the NLRB's Regional Director issued a complaint against Top Form on September 27, 1979. On November 26, 1979, the General Counsel for the NLRB moved for summary judgment on the complaint, a motion that the NLRB denied on March 6, 1980, finding that there were issues of fact that required development at a hearing before an Administrative Law Judge (ALJ). In particular, the NLRB concluded that the ALJ should hear evidence as to the nature of the strike and as to whether the Union committed sufficient violence during the strike so as to justify Top Form's refusal to bargain with the Union as a certified bargaining representative pursuant to the doctrine established in Laura Modes Co., 144 NLRB 1592 (1963). As a result of the Board's denial of the General Counsel's motion for summary judgment, hearings were held before an ALJ concerning the unfair labor practices complaint on August 21, 1980 and October 6-9, 1980.
On May 12, 1981, the ALJ issued his findings of fact and conclusions of law in which he found that Top Form had violated Section 8(a) of the statute by refusing to bargain with the Union. In so finding, the judge expressly rejected Top Form's strike violence defense. The ALJ refused to consider Top Form's objections to the Union's alleged pre-election misconduct.
In December 1983, Top Form sold its plant facilities at Honaker, Virginia to Sanmark. Subsequently, on December 14, 1984, the Board issued its Decision and Order affirming the ALJ's rulings in the hearing on the unfair labor practice charges. The Board's order required Top Form and its successors and assigns to cease and desist from refusing to bargain with the Union. The order also requires Top Form to bargain with the Union upon request, to embody any understanding that is reached in a signed agreement, and to post an appropriate notice. It is this Decision and Order that is presently before us for review.
In its petition for review, Sanmark raises three grounds for denial of the NLRB's petition for enforcement. In addition, Top Form argues that the order should not be enforced because the order is addressed to Top Form and Top Form no longer has any interest in or control over the labor practices at the facility in question. After determining the propriety of the order in general, we address its enforceability against Top Form in particular.
Sanmark first argues that the order should not be enforced because it is the result of an unfair hearing before a biased tribunal. Specifically, Sanmark makes six allegations of partiality in the hearing:
1. that the ALJ expressed his doubts about the viability of Top Form's primary defense to the unfair labor practice charge prior to the hearing;
2. that the ALJ assumed the role of advocate in actively participating in the questioning of witnesses during the hearing;
3. that the ALJ refused to credit uncontradicted testimony by witnesses for Top Form;
4. that the ALJ precluded Top Form from eliciting testimony helpful to its defense;
5. that the ALJ made certain disparaging remarks to counsel for Top Form during the course of the hearing; and,
6. that the ALJ disregarded incriminating conduct that the Union committed during the course of the strike when he considered the merits of Top Form's strike misconduct defense.
Because of the serious nature of an allegation of bias on the part of a decisionmaker in such a proceeding, see NLRB v. Phelps, 136 F.2d 562, 563-64 (5th Cir.1943), we address in some detail each of Sanmark's allegations of bias. See Tele-Trip v. NLRB, 340 F.2d 575, 581 (4th Cir.1965).
In support of its first allegation of conduct evidencing bias, Sanmark points to a remark that the ALJ allegedly made during an off-the-record, pretrial conference with Top Form's attorneys. 1 To establish that the ALJ actually made this remark, Sanmark relies on an affidavit by Top Form counsel in which counsel avers that the ALJ had stated during the pretrial conference that the Laura Modes defense, the defense that Top Form intended to rely upon during the hearing, had never been "applied or sustained in the context of a post-certification Section 8(a)(5) strike," and that as a result the ALJ did not think that Top Form had any chance of success with that defense.
Sanmark does not dispute the accuracy of the ALJ's description of the caselaw that has developed regarding the Laura Modes defense. Rather, Sanmark contends that the ALJ's apparently correct statement of the law evidenced an inherent prejudice toward Top Form's defense to the unfair labor practice charges. We do not believe that the ALJ's remark reflected anything more than the familiarity with governing caselaw that was required of him for the effective performance of his duties, and reject Sanmark's contention that the remark indicated that the ALJ was personally rather than judicially prejudiced against Top Form's reliance upon the Laura Modes defense. A judge's remarks that constitute mere expressions on a point of law are not sufficient to show personal bias or prejudice. Sakellar v. Lockheed Missiles and Space Co., 765 F.2d 1453, 1457 (9th Cir.1985); see also United States v. Carmichael, 726 F.2d 158, 161 (4th Cir.1981) ().
Sanmark next alleges that the ALJ exhibited prejudice and assumed the role of advocate by his active participation in the examination of witnesses during the hearing. The NLRB's rules expressly authorize ALJs presiding in hearings concerning unfair labor practice charges to "call, examine, and cross-examine witnesses and to introduce into the record documentary or other evidence." 29 C.F.R. Sec. 102.35(k) (1985); see also 29 C.F.R. Sec. 102.64(a) (1985) (). In this case, the questioning to which Sanmark objects does not necessarily indicate more than that in response to certain witnesses' broad testimony, specifically that of Mr. Ireson, Mrs. Gilbert, Mr. Phillips, and Miss Perkins, all witnesses for Top Form, the ALJ attempted to obtain more specific statements from the witnesses to determine the weight that he should assign to their testimony. An examination of the questioning of which Sanmark complains reveals that the ALJ, again, was not necessarily doing more than clarifying the record, not slanting it. We find no excessive questioning nor...
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