National Labor Rel. Bd. v. Saxe-Glassman Shoe Corp.

• Decision Date: 17 February 1953
• Docket Number: No. 4658.,4658.
• Citation: 201 F.2d 238
• Parties: NATIONAL LABOR RELATIONS BOARD v. SAXE-GLASSMAN SHOE CORP.
• Court: U.S. Court of Appeals — First Circuit

201 F.2d 238 (1953)

NATIONAL LABOR RELATIONS BOARD v. SAXE-GLASSMAN SHOE CORP.

No. 4658.

United States Court of Appeals First Circuit.

January 12, 1953.

Rehearing Denied February 17, 1953.

Sidney A. Coven, Boston, Mass. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, and Elizabeth W. Weston and Nancy M. Sherman, of Washington, D. C., on the brief), for petitioner.

Maurice Epstein, Boston, Mass. (Benjamin E. Gordon and Gordon & Epstein, Boston, Mass., on the brief), for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

The National Labor Relations Board, pursuant to the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., has petitioned this court for enforcement of its order of December 10, 1951, under § 10(c) of the Act, against the respondent Saxe-Glassman Shoe Corporation.

The respondent is a Maine corporation and is engaged in the manufacture of women's shoes in Saco, Maine. It concedes that it is engaged in commerce within the meaning of the Act.

In proceedings instituted by United Shoe Workers, CIO (hereinafter called the Union) the Board found that respondent attempted to prevent its employees from organizing under the Union's auspices by resorting to unfair labor practices forbidden by §§ 8(a)(1), (2) and (3) of the Act: surveillance of the employees' union activities, espionage, interrogation and other intimidatory tactics; discrimination against union adherents; and domination of a company-sponsored labor organization. In addition, the Board found respondent violated §§ 8(a)(5) and (1) of the Act by refusing to recognize and deal with the Union even after it had been certified as the employees' statutory bargaining agent in consent election proceedings.

The consent election, the proper conduct of which was duly certified by agents of the Regional Director, was held on October 11, 1950. On November 20, 1950, the Regional Director filed his report on objections made by respondent to the conduct of the election and certified the Union as the exclusive representative of all the employees in the unit.

The trial examiner issued his intermediate report on July 31, 1951, finding that respondent had engaged in these unfair labor practices and recommended that it cease and desist therefrom and take certain affirmative action.

The Board considered the intermediate report and the entire record and, after finding the violations of §§ 8(a)(1), (2), (3) and (5) already referred to, issued the remedial order now before us. This order required the respondent to cease and desist from refusing to bargain with and from discouraging membership in the Union; from dominating, interfering with, assisting or recognizing the labor organization known as the Open Door Committee, and from interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by § 7 of the Act. Furthermore, respondent was ordered to bargain collectively with the Union upon request; to make whole four employees for any loss of pay each suffered by reason of the respondent's discrimination against them, in the manner provided by the remedy in the Intermediate Report, and to withdraw all recognition from the Open Door Committee as the bargaining representative of any of its employees and to completely disestablish it as such representative.

The respondent's refusal to bargain is based upon its insistence that the Union secured its selection by acting improperly in intimidating the employees. This point was raised initially before the Regional Director, who investigated the claim without any hearing, as he was allowed to do by the terms of the agreement for consent election. The Regional Director reported that the respondent's objections were without merit.

When the respondent complained to the trial examiner concerning the Regional Director's denial of a hearing on this question, it was pointed out that respondent, in the agreement for consent election, had expressly waived any right to hearing. Furthermore, both the trial examiner and the Board maintained that respondent was not entitled to a review on the merits of the decision that the election was proper. A consent agreement provision that the Regional Director's "decision shall be final and binding" is, in the Board's view, a limitation on review, so that, in consent elections, only arbitrary and capricious actions of a Regional Director may be reviewed. This policy of the Board in consent election cases has received judicial approval. Labor Board v. A. J. Tower Co., 1946, 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322; National Labor Rel. Bd. v. General Armature & Mfg. Co., 3 Cir., 1951, 192 F.2d 316, certiorari denied 1952, 343 U.S. 957, 72 S.Ct. 1052.

In National Labor Relations Board v. Capitol G. Lines, 6 Cir., 1944, 140 F.2d 754, 758, certiorari denied, 1944, 322 U.S. 763, 64 S.Ct. 1285, 88 L.Ed. 1590, the court, after quoting with approval the Board's statement that the director's determinations had the same finality as an arbitrator's award, stated:

"This rationalization seems consistent with decisions of the Supreme Court. See Virginian R. Co. v. System Federation, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 119, 121, 44 S.Ct. 274, 68 L.Ed. 582.

"No valid reason appears and no authority has been cited which would justify a United States Court of Appeals to assume the role of super-canvassing board in a labor-bargaining-agency election."

Respondent contends that even if it is not entitled to a review on the merits of the Regional Director's denial of its objections to the conduct of the election, nevertheless it was entitled to some sort of a hearing before the Director. The respondent asks us to read narrowly the provision in the agreement for consent election that the "method of investigation of objections and challenges, including the question whether a hearing should be held in connection therewith, shall be determined by the Regional Director, whose decision shall be final and binding." The express reference in this agreement to the finality of the Director's determination of whether or not to hold a hearing was not contained in the agreement which was before the court in National Labor Relations Board v. Sidran, 5 Cir., 1950, 181 F.2d 671, where it was held that the Director had been arbitrary and capricious in denying challenges without a hearing. Thus the Sidran case upon which the respondent relies, is clearly distinguishable.

We are not warranted in disregarding the parties' agreement that the Regional Director shall investigate objections and challenges with or without a hearing. A narrow interpretation of the word "hearing" which respondent urges, would thwart the utility of the device of consent elections. These agreements are aimed at the expeditious settlement of election disputes. The parties are protected from any unruly action of the Regional Director by their right of review on an allegation of arbitrary or capricious conduct. The trial examiner "agreed to hear any and all evidence the Respondent might care to produce showing any arbitrary and capricious action by the Regional Director in reaching this decision." In the absence of such conduct, they have agreed to rely on the integrity and competence of the Director and we see no reason for disturbing the arrangement by narrow construction. The respondent has not questioned the integrity or the competence of the Director in this case and, furthermore, it expressly withdrew any claim that the Director was arbitrary and capricious.

Now for the first time, respondent objects that at least it should have been given access to the report of the field examiner designated by the Regional Director to investigate respondent's charges as to the conduct of the election, or to the evidence upon which the Regional Director based his conclusion, contrary to respondent's affidavits, that the election was fairly conducted — otherwise respondent would not be in a position to determine whether the Regional Director acted arbitrarily and capriciously, and the right accorded by the trial examiner to produce evidence of arbitrary and capricious action would be an empty and meaningless gesture. But respondent, in its petition for reconsideration filed with the Regional Director, made no request for a disclosure of the field examiner's report or of the other factual basis upon which the Regional Director acted, but rather, asked the Regional Director to give a full de novo public hearing on the charges as to the conduct of the election, a hearing to which respondent was not entitled, under the terms of the consent election. Thereafter, on appeal to the Board from the Regional Director's denial of such hearing, respondent did not ask for a disclosure of the evidence upon which the Regional Director acted, but asked the Board to order the Regional Director to conduct a full public hearing on respondent's objections to the conduct of the election. And when the unfair labor practice complaint came on for hearing before the trial examiner, respondent again made an effort to obtain a hearing upon the merits of its objections to the conduct of the election. In its exceptions to the trial examiner's...