NLRB v. Bell Mfg. Div., Di Giorgio Leisure Products, Inc.

• Decision Date: 31 July 1973
• Docket Number: No. 72-1078.,72-1078.
• Citation: 483 F.2d 150
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BELL MANUFACTURING DIVISION, Di GIORGIO LEISURE PRODUCTS, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

483 F.2d 150 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BELL MANUFACTURING DIVISION, Di GIORGIO LEISURE PRODUCTS, INC., Respondent.

No. 72-1078.

United States Court of Appeals, Ninth Circuit.

July 31, 1973.

Jonathan G. Axelrod (argued), Peter G. Nash, Gen. Counsel, Marcel Mallet Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, NLRB, Seattle, Wash., Leonard M. Wagman, NLRB, Washington, D. C., for petitioner.

George J. Tichy (argued), Spokane, Wash., for respondent.

Before BARNES and WRIGHT, Circuit Judges, and SWEIGERT, District Judge.^*

EUGENE A. WRIGHT, Circuit Judge:

The Board seeks enforcement of its order which was based on findings that the respondent company had violated Section 8(a) (1) of the Act. Respondent argues that enforcement should be denied, asserting that the trial examiner erred in his rulings on the admissibility of evidence and was guilty of misconduct in handling the three-day hearing; that a fair hearing was denied; that the findings of fact are not supported by credible testimony; and that the Board's order to bargain was error.

At oral argument, counsel for respondent argued with some vigor that the bias of the trial examiner was evident from his rulings on evidentiary questions, from his impatience and from his comments, on and off the record. Our review is limited to what is on the record.

The Board found that, after a majority of the employees (at least 28 of them) had signed union authorization cards, the company began an anti-union campaign. It threatened discharge of employees who talked about unionizing. It threatened to close the plant and to reduce the number of employees and shorten the work week. It granted a wage increase to induce employees to abandon the union. These and other findings were supported by testimony of employees and a union organizer, all of whom were found by the trial examiner to be credible.

After the activity by the company, a consent election was held and the union lost by a vote of 22 to 20, precipitating the filing of unfair labor practice charges. The Board found that there was slight chance of erasing the effects of the unfair labor practices and of insuring a fair second election. It ordered the company to bargain with the union instead of ordering another election.

We find from the whole record that substantial evidence supports the Board's finding that the company violated the Act. The scope of our review is limited, for the findings of the trial examiner, adopted by the Board, must be affirmed when there is substantial evidence to support the findings. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It is for the trial examiner to evaluate the credibility of witnesses and to determine the weight to be given their testimony. Only he is in a position to observe their demeanor while testifying or while sitting in the hearing room. N.L. R.B. v. Tri-State Stores, Inc., 477 F.2d 204 (9th Cir. 1973).

The company charges the hearing examiner with bias, impatience and incompetence and we have been referred to many pages of the transcript which are said to substantiate the claim. The hearing lasted three days and the transcript of testimony takes 440 pages. It would have been longer except that a number of discussions and stipulations were taken off the record.

Two erroneous evidentiary rulings are referred to by respondent. It is urged that the trial examiner improperly refused a company exhibit which was identified by a vice president of the company.¹ We observe that the exhibit was refused before an objection was made, so we are in the dark as to the ground, except as the trial examiner stated it himself, before ruling on his own objection.

The procedure leaves something to be desired as do other comments by the trial examiner. But we cannot say that a fair hearing or due process were denied. Indeed, the effort of the trial examiner to expedite the proceeding should be commended. He endured countless repetitive and irrelevant questions, arguments by counsel with witnesses and colloquy between counsel before concluding the long hearing.²

Counsel for respondent also argues that the trial examiner erred in sustaining objections to a line of questioning on cross-examination of employees witnesses.³ Counsel contends that he was prevented from demonstrating that the alleged threats of the company had no effect on several of the employees, and that as a result the Board did not have all the evidence before it in making the finding required by N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969):

"In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer\'s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight, and that the employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue (see n. 32, supra)." Gissel, supra at 614-615, 89 S.Ct. at 1940.

Initially, we note that counsel made no offers of proof nor did he come forward with any coherent explanation to the trial examiner of the possible relevancy of the line of inquiry he was pursuing. Furthermore, we have been instructed that "It is for the Board and not the courts . . . to make the determination as to whether a bargaining order is warranted, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity." Gissel, supra at n. 32, p. 612, 89 S.Ct. at 1939. While we are convinced that it would have been the better course had the hearing examiner allowed respondent to...