National Labor Rel. Bd. v. General Armature & Mfg. Co.

• Citation: 192 F.2d 316
• Decision Date: 07 November 1951
• Docket Number: No. 10472.,10472.
• Parties: NATIONAL LABOR RELATIONS BOARD v. GENERAL ARMATURE & MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

192 F.2d 316 (1951)

NATIONAL LABOR RELATIONS BOARD v. GENERAL ARMATURE & MFG. CO.

No. 10472.

United States Court of Appeals Third Circuit.

Argued October 4, 1951.

Filed November 7, 1951.

Dominick L. Manoli, Washington, D. C., (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Assistant Gen. Counsel, and Thomas F. Maher, all of Washington, D. C., on the brief), for petitioner.

Marvin C. Wahl, Baltimore, Md. (Blanche Genauer Wahl, Baltimore, Md., on the brief), for respondent.

Before McLAUGHLIN, STALEY, and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

Two principal contentions are advanced by the respondent employer, General Armature and Manufacturing Company, in opposition to this petition in customary form for the enforcement of an order of the National Labor Relations Board designed to require the employer to bargain collectively with a labor union after that union had won a consent election. One contention is that the refusal to bargain was justified by the terms of the union's request for bargaining. On the record, that defense is clearly without merit. The Board properly rejected it.

However, the respondent's other contention is more substantial. Respondent has challenged the result of the consent election contending that the union by false and improper representations concerning the consequences of a union defeat deprived the employees of their legally protected freedom of choice of a bargaining representative. Respondent communicated this challenge to the Regional Director of the Board whose decision on any such claim the parties had agreed to accept. The Regional Director caused his agent, Murray Geller, a field examiner of the Board, to investigate the complaint. On the basis of this investigation the Regional Director concluded that the respondent's contention was not substantiated.

Accordingly, the union was certified in due course. But respondent still refused to bargain with it. This refusal was charged as an unfair labor practice and the matter came on for hearing before a Trial Examiner. At that time, respondent sought to prove that the Regional Director had acted capriciously and arbitrarily¹ in that his representative Geller had not made a reasonable investigation of the alleged misconduct of the union. We think it clear, as the Board found, that the evidence adduced fell far short of proving capricious or arbitrary decision. However, in an attempt at additional proof, the respondent sought to require Geller himself to testify as to what he did in conducting the investigation. Geller refused to give any testimony on this subject on the ground that he did not have the consent of the Board or its General Counsel as required by the following provision of the Rules and Regulations of the National Labor Relations Board: "Sec. 102.90. No * * * agent, * * * or employee of the Board shall * * * testify in behalf of any party to any cause pending in any court or before the Board, * * * with respect to any information, facts, or other matter coming to his knowledge in his official capacity * * * whether in answer to a subpena, subpena duces tecum or otherwise, without the written consent of the Board or the Chairman of the Board, * * * or the General Counsel. * * * Whenever any subpena * * * described hereinabove shall have been served upon any such persons or other officer or employee of the Board, he will, unless otherwise expressly directed by the Board or the Chairman of the Board, or the General Counsel, as the case may be, appear in answer thereto and respectfully decline by reason of this Rule to * * * give such testimony." 12 F.R. 5656 (1947), 29 U.S.C. § 203.90 (1946), as amended, 14 F.R. 78 (1949), 29 U.S.C. § 102.90 (Supp. III 1946 ed.)

It is not claimed that this regulation is on its face invalid. Compare Touhy v. Ragen, 1951, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; Boske v. Comingore, 1900, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846. But it is strongly urged that it was so employed in this case as to deprive respondent of a fair and full opportunity to present its case.

The hearing in question took place on July 6 and 7, 1949. On July 6, Geller was in attendance, seated at the counsel table with the attorney representing the General Counsel in the prosecution of the complaint. Then, for the first time so far as the record shows, respondent made known its desire to have Geller testify. At that time, counsel for respondent asked the attorney representing the General Counsel to permit Geller to testify. The attorney stated that such consent was beyond his power. Respondent then asked the Trial Examiner to issue a subpoena for Geller. This was done at some time during the same day. The subpoena bore the signature of a Board member other than the Chairman....