NLRB v. Genesco, Inc.

• Decision Date: 07 January 1969
• Docket Number: No. 25592.,25592.
• Citation: 406 F.2d 393
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENESCO, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 393 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENESCO, INC., Respondent.

No. 25592.

United States Court of Appeals Fifth Circuit.

January 7, 1969.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Frank H. Itkin, Lawrence J. Sherman, Atty., NLRB, Washington, D. C., for petitioner.

Madeline Balk, New York City, Thomas J. Tubb, Tubb & Stevens West Point, Miss., Seligman & Seligman, New York City, for respondent; Alan D. Eisenberg, New York City, on brief.

Before DYER and SIMPSON, Circuit Judges, and CABOT, Judge.

DYER, Circuit Judge:

The issue which we are called upon to resolve is whether the Board deprived an employer of due process in refusing to hold a formal hearing on the company's objections to the representation election won by the union, based upon alleged misrepresentations and improper conduct by the union. It comes to us in the cumbersome context of a violation of sections 8(a) (1) and (5) of the National Labor Relations Act,¹ on a petition by the Board for enforcement of its order that the company cease its refusal to bargain with the union.² Unfortunately, this time-consuming, roundabout proceeding is the only method for challenging the Board's certification of a union because Board decisions in representation proceedings usually are not reviewable by the courts of appeal. The 8(a) (5) cases of this sort are legion, N.L.R.B. v. Air Control Products of St. Petersburg. Inc., 5 Cir. 1964, 335 F.2d 245, and continue unabated, Pepperell Mfg. Co. v. N.L.R.B., 5 Cir. 1968, 403 F.2d 520, (November 13, 1968); N.L.R.B. v. Smith Indus., Inc., 5 Cir. 1968, 403 F.2d 889 (November 12, 1968). We attach no opprobrium to the employer's refusal to bargain where, as here, it is the only means of inveighing the Board's findings in an underlying representation hearing.

On August 5, 1965, a Board-conducted election was held at the company's plant in Iuka, Mississippi. The union won by a vote of 389 to 308 (with 15 challenged ballots). On August 10, 1965, the company filed timely objections to the election on the grounds that the union, in its pre-election campaign, had made material misrepresentations of the average hourly wage and wage increases at competitor's organized plants, and the minimum starting rate which it had obtained at a major competitor of the company that the union had recently organized. Further objection was made that the union had distributed or shown purportedly typical check stubs of employees in organized competitor's plants as their regular earnings, when in fact the check stubs shown were unusual, high earnings. Among the other misrepresentations charged were the union's strike record and strike benefits. Specific instances were also delineated to support a charge that there was an "atmosphere of fear and confusion" surrounding the election. The Regional Director³ conducted an ex parte administrative investigation of the objections⁴ and subsequently issued a Supplemental Decision in which he overruled the company's objections. The company filed a request for review with the Board which was summarily denied and the union was certified.

When the union made a bargaining request, the company declined on the ground that the certification was improper and that such a refusal was the only basis upon which a judicial review of the validity of the certification could be obtained. The union filed charges and a complaint was issued by the Board. The company answered. General Counsel filed a motion for judgment on the pleadings, and in answer to the Board's Show Cause Order the company responded that in the representation proceedings issues of fact and credibility determinations had been made ex parte and that a denial of a hearing would be a denial of due process. The company also made an offer of proof in addition to the evidence previously adduced to support its charges of material misrepresentations made by the union. The Trial Examiner rejected the company's request for a hearing and granted the motion for judgment on the pleadings. The Board adopted the Trial Examiner's decision pro forma.

Judge Ainsworth in an impeccably sound opinion for the Court, N.L.R.B. v. Smith Indus., Inc., supra, recently came to grips with post-election representation hearing problems strikingly similar to those sub judice. He posited the threshold determination to be made in these terms:

In order to obtain a hearing in a post-election representation proceeding, the objecting party must supply prima facie evidence, presenting "substantial and material factual issues," which would warrant setting aside the election. 29 C.F.R. § 102.69(c). This administrative standard is also the constitutional standard under the due process clause. Classically, a hearing is required where it is necessary to preserve a party\'s rights.

Id. at 892 of 403 F.2d (footnotes omitted). As a bench mark in determining when a hearing must be held the opinion continues:

Thus, this Court\'s standards for the granting of summary judgment on pleadings and affidavits are instructive as to whether the Board acted within constitutional limits in failing to grant a hearing.

Id. at 892 of 403 F.2d.

In urging that its order be enforced the Board's position may be succinctly stated as follows: since the relevant factual issues were not materially disputed, an evidentiary hearing would have been a "useless and senseless formality." N.L.R.B. v. Air Control Products of St. Petersburg, Inc., supra 335 F.2d at 249. The Director, it says, determined as a matter of law that statements allegedly made by union representatives did not interfere with the employees' freedom of choice in the election.

The company counters by raising objections to the union's pre-election campaign based upon "specific evidence of specific events from or about specific people," United States Rubber Company v. N.L.R.B., 5 Cir. 1967, 373 F.2d 602, 606, the cumulative effect of which would require that the election be set aside or at least would entitle the company to a post-election hearing.

The cleavage between the parties simply stated is whether or not there were substantial and material issues which could be determined properly only by a hearing, Id. at 605 accepting, as we do, "the Board's findings of fact so long as they are supported by substantial evidence on the record considered as a whole. This is the test prescribed by 29 U.S.C.A. § 160(e) and Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456 (1952)." N.L.R.B. v. Houston Chronicle Publishing Company, 5 Cir. 1962, 300 F.2d 273, 277.

We must examine the factual issues of this case to determine whether the election "was conducted in less than the laboratory conditions so often promised by the Board and required by the Courts." Home Town Foods, Inc. v. N.L.R.B., 5 Cir. 1967, 379 F.2d 241, 244.

First, the union...