NLRB v. Clement-Blythe Companies, No. 13058.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBRYAN, CRAVEN and BUTZNER, Circuit
Citation415 F.2d 78
Docket NumberNo. 13058.
Decision Date09 September 1969
PartiesNATIONAL 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.


415 F.2d 79

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

415 F.2d 80
The evidence at the hearing was uncontradicted. The only witness was the project manager who testified that 37 production and maintenance employees were then employed. He anticipated 60 production and maintenance employees at the end of May, 80 at the end of June, 90 at the end of July, 110 at the end of August, 125 at the end of September, 140 at the end of February 1968, and between 180 and 190 from April 1969 until the completion of the work

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

415 F.2d 81
now. But the use of summary judgment in deciding whether an employer has committed an unfair labor practice does not exempt the Board from complying with the Administrative Procedure Act 5 U.S.C. § 557(c), which requires that
"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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11 practice notes
  • Sealed Air Corp. v. US Intern. Trade Com'n, Appeal No. 79-35
    • United States
    • United States Court of Customs and Patent Appeals
    • March 12, 1981
    ...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......
  • Morris v. Gressette, No. CA/75-1998.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 12, 1976
    ...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......
  • Hyatt Corp. v. N.L.R.B., Nos. 89-6407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 22, 1991
    ...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......
  • Meyer Dairy, Inc. v. NLRB, No. 531-69.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 18, 1970
    ...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......
  • Request a trial to view additional results
10 cases
  • Sealed Air Corp. v. US Intern. Trade Com'n, Appeal No. 79-35
    • United States
    • United States Court of Customs and Patent Appeals
    • March 12, 1981
    ...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......
  • Morris v. Gressette, No. CA/75-1998.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 12, 1976
    ...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......
  • Hyatt Corp. v. N.L.R.B., Nos. 89-6407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 22, 1991
    ...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......
  • Meyer Dairy, Inc. v. NLRB, No. 531-69.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 18, 1970
    ...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......
  • Request a trial to view additional results
1 books & journal articles
  • Law, Fact, and the Threat of Reversal From Above
    • United States
    • American Politics Research Nbr. 42-2, March 2014
    • March 1, 2014
    ...American Politics Research 42(2)Case citation Factual review Statutory review404 F.2d 1370 Yes No406 F.2d 1306 Yes No412 F.2d 37 Yes Yes415 F.2d 78 Yes No416 F.2d 243 Yes No447 F.2d 290 Yes Yes463 F.2d 256 No Yes469 F.2d 498 Yes No489 F.2d 1247 Yes Yes500 F.2d 597 Yes Yes501 F.2d 191 Yes Ye......

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