National Labor Relations Board v. Huntsville Mfg. Co.

• Decision Date: 13 April 1953
• Docket Number: No. 14315.,14315.
• Citation: 203 F.2d 430
• Parties: NATIONAL LABOR RELATIONS BOARD v. HUNTSVILLE MFG. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

203 F.2d 430 (1953)

NATIONAL LABOR RELATIONS BOARD v. HUNTSVILLE MFG. CO.

No. 14315.

United States Court of Appeals Fifth Circuit.

April 13, 1953.

Duane B. Beeson, Atty., A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, George J. Bott, Gen. Counsel, Fannie M. Boyls, Attys., National Labor Relations Board, Washington, D. C., for petitioner.

Mark L. Taliaferro, Birmingham, Ala. (Burr, McKamy, Moore & Tate, Birmingham, Ala., of counsel), for respondent.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

While in form this is an ordinary proceeding to enforce an order of the Labor Board, in substance and in fact it is quite different. For the question presented here is whether the board's decision as to the results of a representation election and its certification of the Textile Workers Union of America, C. I. O., as exclusive representative of respondent's employees, was and is invalid for the reasons put forward by respondent, and enforcement of its order should, therefore, be denied.

These reasons in general are that both the election upon which the certification was predicated, and the investigation of respondent's objections to it were improperly conducted; and that the board erred in not voiding the election and calling another as prayed for by respondent.

Relying in support of its position on N. L. R. B. v. Sidran, 5 Cir., 181 F.2d 671, a case from our court, respondent claims that here, as there, due process was denied.

Pointing out that certification proceedings under section 9(d) of the Act are not subject to direct review under section 10(f), the review section of the act, but the record in such proceedings is part of the record in an unfair labor practice proceeding based on refusal to bargain collectively with a certified union, and that both proceedings are therefore really one,¹ respondent urges upon us that the procedures followed and the decisions arrived at by the board in this case are contrary to and in violation of the applicable rules, regulations, statements and procedures of the board, especially Sec. 102.61, as are set down in its "series 6" which became effective March 1, 1951, 29 C.F.R. et seq. Supp. This, as it develops its procedural point, is that while the section places in the regional director the duty to investigate objections to an election, it does not impose upon the objector any duty to furnish him preliminary evidence or testimony supporting the objections, and no notice of hearing with the right to cross examine witnesses having been accorded respondent in connection with the investigation, the action of the board, in receiving and acting upon the report of the regional director violated due process.

In addition to its objection that the regional director did not afford it the hearing to which it was entitled, respondent makes what it regards as a fundamental objection to the whole proceeding, that Gardner, the agent assigned to investigate the election, conducted it for the board and that having himself been a participant in the matters to be investigated, he was essentially disqualified to conduct the investigation.

Respondent's second objection to the board's certification goes beyond procedure to assert that procedural questions aside, under the undisputed facts the board should have ordered a new election. The fundamental basis of this objection is that the election was a consent election, that in its conduct there was a departure from the terms of the consent in that, though it was agreed between respondent and the union that replaced strikers would not appear to vote, one of them did, and that in addition there was unfairness in the election in permitting union officers and others active in the union to act as watchers at it.

Meeting these contentions head on, the board counters each of them. As to the objection to the procedure followed by director and board in investigating respondent's objections to the election, the board points out: that, in accordance with its rules and practices, and upon receipt of the objections, it advised respondent that an investigation of the objections would be conducted by field examiner Gardner, and respondent was requested to submit prima facie evidence in affidavit form of persons having first hand knowledge respecting the matters raised by the objections; that instead of complying with the request, respondent protested against the assignment of Gardner on the ground that he had been the board's agent in charge of the election and a participant in some of the election procedure to which objection was made; and that in response to the regional director's request for prima facie evidence in affidavit form of the matters complained of, respondent submitted an affidavit substantially repeating the facts contained in the objection with respect to the reception of the ballot of a replaced striker and in effect ignoring respondent's remaining objection.

As to its refusal of respondent's request, that an employee other than Gardner be assigned to the investigation, the board, pointing out that respondent made it clear that its position was not intended to cast any imputation of any kind upon Mr. Gardner, insists that there was nothing in the objection or in the investigation to disqualify Gardner as an investigator.

As to respondent's claim that it was not obligated to furnish the regional director evidence supporting the objections made, and it was entitled to a formal hearing upon its objections, the board points...