NLRB v. Clement-Blythe Companies, No. 13058.
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Writing for the Court | BRYAN, CRAVEN and BUTZNER, Circuit |
| Citation | 415 F.2d 78 |
| Docket Number | No. 13058. |
| Decision Date | 09 September 1969 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CLEMENT-BLYTHE COMPANIES, a joint venture, Respondent. |
415 F.2d 78 (1969)
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CLEMENT-BLYTHE COMPANIES, a joint venture, Respondent.
No. 13058.
United States Court of Appeals Fourth Circuit.
Argued June 13, 1969.
Decided September 9, 1969.
Michael F. Rosenblum, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William F. Wachter, Atty., N. L. R. B., on brief), for petitioner.
Harry L. Griffin, Jr., Atlanta, Ga. (Smith, Currie & Hancock, Atlanta, Ga., on brief), for respondent.
Before BRYAN, CRAVEN and BUTZNER, Circuit Judges.
BUTZNER, Circuit Judge:
The National Labor Relations Board petitions for enforcement of an order requiring Clement-Blythe Companies to bargain collectively with the International Union of Operating Engineers, AFL-CIO Local No. 74.1 We decline to enforce the order because the Board has failed to set forth reasons for its decision.
Clement-Blythe Companies, a joint venture, began construction of Keowee-Toxaway Dam in South Carolina on March 6, 1967. A month later the union filed a petition for certification. At a representation hearing conducted April 28, 1967, Clement-Blythe moved to dismiss the petition on the ground that an election would be premature because the work force constituted an expanding unit without a substantial and representative complement of employees.2
The Regional Director ordered an election to be held on June 15, 1967, and the Board denied Clement-Blythe's request for review. Of the 40 employees eligible to participate in the election, 31 voted for the union. Clement-Blythe, still insisting that the electorate was not a representative and substantial segment of the contemplated work force, refused to bargain with the union. Consequently, the general counsel issued a complaint charging Clement-Blythe with violations of § 8(a) (5) and (1) of the Labor Act 29 U.S.C. § 158(a) (5) and (1). The general counsel then filed a motion for summary judgment with the Board. Clement-Blythe opposed this motion contending that it was entitled to a hearing at which it could prove that it had 100 employees as of August 28, 1967, and that its work classifications were double the number existing at the time of the representation hearing. The Board ruled that Clement-Blythe's tender of proof did not present newly discovered or previously unavailable evidence. The Board fully stated its reasons for its ruling on this issue, and we find no procedural defect in the denial of a de novo hearing.
The Board held that Clement-Blythe could not relitigate issues decided in the representation proceedings and granted the motion for summary judgment.3 In its decision and order, the Board recited the facts developed at the representation hearing and concluded that the employer's refusal to bargain was an unfair labor practice. The crucial paragraph of the Board's decision is:
"As all material issues have been previously decided by the Board, admitted by Respondent\'s answers to the complaint and amendment thereto, or stand admitted by the failure of Respondent to controvert the averments of the General Counsel\'s motion, there are no matters requiring a hearing before a Trial Examiner. Accordingly, the General Counsel\'s Motion for Summary Judgment is hereby granted."4
We previously have upheld the Board's use of summary judgment when the basis for the employer's refusal to bargain was the same that was litigated in the underlying representation hearing.5 We do not condemn this practice
"All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of —
"(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record * * *."
The defects in the procedure followed in this case are readily apparent. Nowhere did the Board explain why it reached the decision that 40 employees constituted a substantial segment of the ultimate work force of 180 to 190 employees. Nor did it explain why it approved an election on June 15, 1967 instead of 90 days later when the work force would have nearly tripled. The Board's earlier consideration of...
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Sealed Air Corp. v. US Intern. Trade Com'n, Appeal No. 79-35
...under review stated explicitly that the Commission had examined "all of the available evidence of record." In NLRB v. Clement-Blythe Co., 415 F.2d 78 (CA 4 1969), an order entered after a summary judgment proceeding before the NLRB was vacated and remanded for the following The use of summa......
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...Act, which has been held not reviewable under the Administrative Procedure Act, see N.L. R.B. v. Clement-Blythe Companies (4th Cir. 1969) 415 F.2d 78, 81-2, and the procedure which the Court said in South Carolina v. Katzenbach (1966) 383 U.S. 301, at 333, 86 S.Ct. 803, at 821, 15 L.Ed.2d 7......
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...with the duty of stating, the reasons why the Board concluded the facts showed a violation of the law." NLRB v. Clement-Blythe Cos., 415 F.2d 78, 81 (4th Cir.1969) (citations omitted). The Administrative Procedure Act, 5 U.S.C. Sec. 557(c), provides in pertinent All decisions, including ini......
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Meyer Dairy, Inc. v. NLRB, No. 531-69.
...Bodies, Inc., 420 F.2d 1187, 1190 (2d Cir.1970). The Fourth Circuit followed the Pepsi-Cola case in N.L.R.B. v. Clement-Blythe Companies, 415 F.2d 78 The question was more recently carefully considered by the First Circuit in N.L.R.B. v. Magnesium Casting Company et al., 427 F.2d 114 (May 2......
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Sealed Air Corp. v. US Intern. Trade Com'n, Appeal No. 79-35
...under review stated explicitly that the Commission had examined "all of the available evidence of record." In NLRB v. Clement-Blythe Co., 415 F.2d 78 (CA 4 1969), an order entered after a summary judgment proceeding before the NLRB was vacated and remanded for the following The use of summa......
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Morris v. Gressette, No. CA/75-1998.
...Act, which has been held not reviewable under the Administrative Procedure Act, see N.L. R.B. v. Clement-Blythe Companies (4th Cir. 1969) 415 F.2d 78, 81-2, and the procedure which the Court said in South Carolina v. Katzenbach (1966) 383 U.S. 301, at 333, 86 S.Ct. 803, at 821, 15 L.Ed.2d 7......
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Hyatt Corp. v. N.L.R.B., Nos. 89-6407
...with the duty of stating, the reasons why the Board concluded the facts showed a violation of the law." NLRB v. Clement-Blythe Cos., 415 F.2d 78, 81 (4th Cir.1969) (citations omitted). The Administrative Procedure Act, 5 U.S.C. Sec. 557(c), provides in pertinent All decisions, including ini......
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Meyer Dairy, Inc. v. NLRB, No. 531-69.
...Bodies, Inc., 420 F.2d 1187, 1190 (2d Cir.1970). The Fourth Circuit followed the Pepsi-Cola case in N.L.R.B. v. Clement-Blythe Companies, 415 F.2d 78 The question was more recently carefully considered by the First Circuit in N.L.R.B. v. Magnesium Casting Company et al., 427 F.2d 114 (May 2......
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