NLRB v. Ortronix, Inc.

• Decision Date: 12 October 1967
• Docket Number: No. 24204.,24204.
• Citation: 380 F.2d 737
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ORTRONIX, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

380 F.2d 737 (1967)

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

No. 24204.

United States Court of Appeals Fifth Circuit.

July 11, 1967.

Rehearing and Rehearing Denied October 12, 1967.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Eugene B. Granof, Atty., N.L. R.B., Washington, D. C. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Lawrence M. Joseph, Atty., N.L.R.B., for petitioner.

Norman F. Burke, Orlando, Fla., van den Berg, Gay & Burke, Orlando, Fla., for respondent.

Before GEWIN and AINSWORTH, Circuit Judges, and LYNNE, District Judge.

Rehearing and Rehearing En Banc Denied October 12, 1967.

AINSWORTH, Circuit Judge:

Petitioner, N.L.R.B., seeks enforcement of its order of December 13, 1965 directed to respondent, Ortronix, by which it found that respondent violated Sections 8(a) (5) and (1) of the National Labor Relations Act (29 U.S.C. § 151 et seq.) by refusing to bargain with the Union (Sheet Metal Workers' International Association, AFL-CIO), which was certified by the Board following a representation election. The unfair labor practice charge was made by the Board without a hearing on the merits, the trial examiner having granted the General Counsel's motion for judgment on the pleadings, which was affirmed by the Board (156 N.L.R.B. No. 1). We hold that the action of the Board is arbitrary and unreasonable because under the circumstances of the case there were material disputed facts which required a hearing on the merits as provided for by Sections 10(b) and 10(c) of the Act (29 U.S.C. § 160).¹

On September 20, 1963, the Union filed its petition seeking to represent the company's production and maintenance employees. The Regional Director held a hearing after which he directed an election be held. The company's request for a review of that decision was denied. On March 31, 1964, the election was held which the company won by a vote of 166-84. The Union filed objections to the election because of alleged unfair labor practices having occurred at the Orlando, Florida, plant. An ex parte administrative investigation was conducted by the Regional Director² who sustained the Union's objections and directed the holding of a new election. The company requested the Board to review the Regional Director's rulings maintaining the Union's objections to the election and calling a new election; it also requested a hearing, all of which was denied by the Board.

On January 21, 1965, a second election was held and this time the Union prevailed by a vote of 75-59. The company then filed objections to the second election. The Regional Director conducted another ex parte administrative investigation and determined that none of the objections of the company warranted setting aside the election. The company requested that the Board review the Regional Director's decision, which was denied. Thereafter the Regional Director certified the Union as the bargaining representative but the company declined to bargain. The unfair labor practice charge was then filed by the Union with the Regional Director for refusal of the company to bargain and a complaint was issued which the company answered admitting its refusal to bargain but giving as its reason for refusal the improper certification of the Union because of alleged errors in the representation proceedings.

The General Counsel for the Board filed a motion for summary judgment on the ground that the company's answer raised only issues heretofore decided in the representation cases. The company moved to dismiss the motion for summary judgment. Both motions were referred to a trial examiner who denied the company's motion and directed that within ten days it submit evidence, either newly discovered or unavailable at the time of the representation proceedings, which the company would offer for the record in any hearing held under the unfair labor practice complaint. The company failed to submit evidence, and on September 14, 1965, the trial examiner found "that the statutory violation alleged in the complaint is established by pleadings and that no litigable issue remains requiring a hearing for the purpose of taking evidence. Accordingly, the General Counsel's motion for judgment on the pleadings is hereby granted." Thereafter the Board adopted the trial examiner's findings, conclusions and recommendations as its own.

Respondent company claims that the summary judgment procedure was unauthorized either under the National Labor Relations Act or the Administrative Procedure Act (5 U.S.C. §§ 1001 et seq.). The company contends that it has never had an opportunity to present, either to the Board or one of its trial examiners, in a formal proceeding, the facts on which it relies to sustain its objections to the second election in which the Union prevailed nor has it been confronted in such a formal proceeding with the evidence on which the Regional Director relied to set aside the first election which the company had won.

Representation proceedings do not come before us by direct review, but where an unfair labor practice is charged for refusal to bargain, and the employer has refused to recognize the certification, the election proceedings are then before the court for review and the representation cases and the unfair labor practice case become as one and the complete record is fully reviewable. United States Rubber Company v. N.L.R.B., 5 Cir., 1967, 373 F.2d 602, 603 (see footnote 3 and cases there cited).

Thus we look to what happened in the representation proceedings (conducted without formal hearing) to determine if there was material conflicting evidence. When the Regional Director maintained some of the Union's objections and set aside the first election he did so on the basis of findings that the company's personnel manager (McGraw) and its president (Kilbey) had made pre-election speeches to the company's employees — a captive audience — promising to pave the parking lots, to furnish picnic tables upon which the employees could eat lunch and to provide company picnics. The company president had predicted "a lot of grief" in the event of a Union victory which "could have a radical effect on the company and cause all sorts of undesirable results," etc. The personnel manager's speech stated that the Union "cannot guarantee you anything in the way of new and additional benefits, they can't even guarantee you that you will keep all of the benefits you now have";...