NLRB v. New England Upholstery Co.

• Decision Date: 28 July 1959
• Docket Number: No. 5489.,5489.
• Citation: 268 F.2d 590
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEW ENGLAND UPHOLSTERY CO., Inc., Respondent.
• Court: U.S. Court of Appeals — First Circuit

268 F.2d 590 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEW ENGLAND UPHOLSTERY CO., Inc., Respondent.

No. 5489.

United States Court of Appeals First Circuit.

July 8, 1959.

Rehearing Denied July 28, 1959.

Russell Specter, Attorney, Glen Cove, N. Y., with whom Jerome D. Fenton, Washington, D. C., General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Washington, D. C., Asst. Gen. Counsel, and Arnold Ordman, Washington, D. C., Attorney, were on brief, for petitioner.

Jerome Medalie, Boston, Mass., with whom Cohn, Riemer & Pollack, Boston, Mass., was on brief, for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is a petition for enforcement of a decision and order of the National Labor Relations Board which found that the respondent, New England Upholstery Co., Inc. (hereinafter called the Company), had violated Section 8(a) (1) of the Labor Management Relations Act, 1947, 61 Stat. 140, 29 U.S.C.A. § 158, and ordered it to cease and desist from discouraging self organizational activities, by threatening its employees with reprisals, interrogating them concerning their union activities, informing them that their union meetings were under surveillance or by inducing them to forego their freedom of choice of bargaining representation and to select a bargaining representative of the Company's choice, and to post the usual notices.

The Company first urges that the trial examiner's admission into the record of a summary report of an investigation made by the Regional Director of the Board was a procedural infirmity of so debilitating a nature as to vitiate the validity of the trial examiner's intermediate report and the Board's decision based thereon. It appears that the hearing before the trial examiner was a consolidated proceeding, one aspect of which was based on unfair labor practices allegedly committed by the Company and the other being based on objections made by the Upholsterers' International Union of North America, AFL-CIO (hereinafter called the Union), to a Board conducted election among the Company's employees, which election resulted in a defeat for the Union. Only the former aspect of the proceeding is before us for review under Section 10 of the Act. The Regional Director's report was a part of the preliminary procedure authorized by the Board with respect to the latter aspect of the proceeding. It seems clear from the record that this report was utilized by the trial examiner only as a means of determining the issues to be decided by him with regard to the representation proceeding and was expressly not part of the record upon which he based his findings either in the unfair labor practice proceeding or in the representation proceeding. The Board also expressly indicated in its decision that both the trial examiner and the Board relied only upon the testimony presented before the trial examiner for their findings in both the unfair labor practice and representation proceedings.

We are not persuaded by respondent's argument that despite these clear statements by the Board the conclusions of the Regional Director necessarily had to be relied upon for the Board to find as it did because of the absence of other evidence to support those findings. The respondent in support of this theory asserts there was no testimony during the hearing before the trial examiner that the Company attempted to induce an employee named Palmer to form a plant committee in place of the union. However the Board could rationally conclude from Palmer's testimony in the hearing that he, as one who apparently had influence with the other employees, had been asked if it were possible to form a plant committee. The Board could reasonably infer that such a committee would be in place of the union. In view of the improbability of any prejudice to the Company's cause in the unfair labor practice proceeding by the admission into evidence by the trial examiner of the Regional Director's report for a specific limited purpose, we reject the Company's contention on this point. See Western Union Division Commercial Telegraphers' Union, A. F. of L. v....