NLRB v. Air Control Products of St. Petersburg, Inc.

Citation335 F.2d 245
Decision Date28 July 1964
Docket NumberNo. 21017.,21017.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)


Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, Lawrence Gold, Atty., Arnold Ordman, Gen. Counsel, Stephen B. Goldberg, Paula Omansky, Attys., N.L.R.B., Washington, D. C., for petitioner.

Harrison C. Thompson, Jr., Shackleford, Farrior, Stallings, Glos & Evans, Tampa, Fla., for respondent.

Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and BREWSTER, District Judge.

JOHN R. BROWN, Circuit Judge.

This is another § 8(a) (5), 29 U.S.C.A. § 158(a) (5), case in which the Employer defends by asserting defects in the § 9, 29 U.S.C.A. § 159, representation proceedings which resulted in the certification of the Union as the exclusive collective bargaining representative of Employer's workers.1 In its § 8(a) (5) attack on the certification, the Employer makes two primary contentions. First, it asserts that the Regional Director and the Board incorrectly denied a hearing on its objections to the manner in which the election was conducted, and second, it urges that the Trial Examiner in the § 8 (a) (5) case erroneously refused to hear proffered evidence bearing on the intrinsic merits of both the objections and the pre-election unit determination. Wrapped up in all this is the further contention that the Hearing Officer improperly denied a request for continuance of the § 9 representation hearing.


The contention that the Hearing Officer improperly denied a continuance of the § 9 hearing is plainly lacking in merit. The Employer does not dispute the controlling legal principle that matters of continuance rest in the sound discretion of the hearing officer or examiner and his decision should ordinarily not be interfered with by a reviewing court except upon a clear showing of abuse of discretion. Jefferson Elec. Co. v. NLRB, 7 Cir., 1939, 102 F.2d 949, 955; NLRB v. Algoma Plywood & V. Co., 7 Cir., 1941, 121 F.2d 602, 604; NLRB v. American Potash & Chemical Corp., 9 Cir., 1938, 98 F.2d 488, 491-492.2 Rather, the Employer asserts that this record demonstrates a "clear showing of abuse." We do not agree.

The RC3 case was initiated on February 14, 1961, by the Union's4 petition for a representation election among the Employer's employees.5 On February 27, 1961, the Board's Regional Office served Employer with a notice stating that a hearing would be held on the petition on March 8, 1961. On March 1, the hearing was rescheduled for March 9, and on March 2 the Regional Office received a letter from Attorney Marks, a member of the firm then representing Employer, requesting postponement of the hearing on the ground that he would be engaged in a trial in the Florida state court on that date. By telephone conversation on that same day, the hearing officer agreed to postpone the hearing if Marks notified him by the close of business on March 7 that he would still be in trial on March 9.6 At 4:30 p. m. on March 8, Marks' secretary called the Regional Office to ask for a continuance. The hearing officer informed her that the request had come too late and that the hearing would be held on March 9 as scheduled. Further requests by telephone and telegram the morning of the hearing were also denied.

These facts reveal no abuse of discretion. On the contrary, they demonstrate a considered effort on the part of the hearing officer to balance the interest of the Employer and the public in a "full and complete record"7 against the interest of the parties and the public in proceeding with the RC case with "the utmost dispatch."8 Attorney Marks knew from the telephone conversation on March 2, that the hearing officer desired to hold the hearing on March 9 if Marks was not in court. The workable, practical solution adopted was for Marks to call on March 7. He not only failed to do that, he failed to call until 4:30 p. m. on March 8. At that stage, it was certainly within the discretion of the hearing officer to do as he did — deny the continuance.


The objections9 to the election on which the Employer contends the Director and the Board should have granted a hearing relate to the conduct of an employee named Johnson. Asserting that Johnson was a supervisor within the meaning of the Act,10 the Employer charged that the election should be set aside because Johnson had improperly assisted the Union in obtaining their showing of interest required by the Board prior to the direction of an election,11 interfered with the free choice of the employees in the election by speaking in favor of the Union, and engaged generally in coercion of employees.12 The Regional Director, after the administrative investigation provided by the Rules and Regulations,13 declined to grant a hearing and overruled the objections. The reasons for the denial of a hearing and the overruling of the objections were couched in these terms. First, the Director reasoned, the facts adduced in his investigation of the objections failed to sustain the allegation that Johnson was a supervisor. Thus Johnson's actions, if done as alleged, were those of a rank-and-file employee and consequently did not in law constitute a ground for setting aside the election. Second, assuming Johnson was a supervisor, the Director concluded that his activities in connection with the obtaining of the Union's showing of interest would not constitute a basis for setting the election aside since such conduct antedates the Board's Decision and Direction of Election. Third, as to the post-Decision and Direction conduct, granting that Johnson said what the Employer said he said, namely that if the Union got in the employees would have to join, the Director concluded that this in law did not amount to improper coercion. Fourth, the Director assigned a broad justification covering all the conduct. That was that assuming Johnson was a supervisor and that he did all that the Employer alleged he did, as a matter of law this would not justify setting aside the election since the Employer knew all the time, and particularly before the election, Johnson's status and what he was up to.

Of course it is clear that § 8(a) (5) orders which rest on crucial factual determinations made after ex parte investigations and without hearing cannot stand.14 But we need not determine the validity of any of these reasons which brought in question factually Johnson's status, because in the final analysis the Director assumed Johnson was a supervisor and that he said what the Employer said he said. Having assumed this, the Director concluded that as a matter of law no ground was presented which would justify setting aside the election. If as a matter of law, this determination was correct, a hearing was properly denied, for the case law is clear that the Director is not required to grant a hearing on objections when the presentation of the objecting party demonstrates that if all the evidence were credited no ground is shown which would warrant setting aside the election.15

Although not articulated in this fashion in our previous decisions, the rationale of this rule is a simple one. If there is nothing to hear, then a hearing is a senseless and useless formality. As the Court said in Fay v. Douds, 2 Cir., 1949, 172 F.2d 720, 725, "the Constitution protects procedural regularity, not as an end in itself, but as a means of defending substantive interests."

Taken most favorably to the Employer, the objections were directed at (a) Johnson's aid in the Union's obtaining the requisite showing of interest and (b) his interference with the free choice of the employees.

As to the first — the invalidity of the Union's showing of the employees' interest16 in securing certification because of Johnson's improper assistance — the law is clear that the showing of interest has only a limited purpose. "It was devised as a means of facilitating the Board's decision as to whether the circumstances justify holding an election at all."17 Consequently the decisions of this and other Courts are uniform to the effect that the validity of the showing of interest is for administrative determination and may not be litigated by the parties, either Employer or Union.18

As to the second — the assertion that Johnson's activities in favor of the Union amounted to unlawful interference with the free choice of the employees — there is a very short answer. Whether such activity is a ground for setting aside an election if conducted behind the Employer's back, the Board has held where the Employer is aware of such conduct and takes no steps to dissipate its effects, he may not rely on it as a basis for setting aside the election.19 As did the Fourth Circuit recently, we approve as good sense the Board's statement of the reflex of this rule — that is, that advocacy of the Union by supervisory personnel, "unknown to the employer, is cause for annulment of the election." (Emphasis supplied.)20 Unless the distinction is made between supervisory advocacy which the Employer knows of and that which goes on behind his back, we would, in the former situation be allowing the Employer to take advantage of wrongdoing for which he has an operational responsibility. This was the rationale of the Underwood Machinery decision of the Board.21

Since the Employer's moving papers showed by their contents and the times at which they were presented that it knew of Johnson's status and conduct, his activities would not justify setting aside the election; and a hearing on the objections was not required.22


This brings us to the Employer's contention that the Trial Examiner in the § 8(a) (5) hearing should have allowed it to introduce evidence bearing on both the objections relating to Johnson's conduct and the issues relating to the unit determination. What we hold in Part II in relation to...

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