NLRB v. Union Brothers, Inc., No. 11716.
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
| Writing for the Court | BOREMAN, WINTER and BUTZNER, Circuit |
| Citation | 403 F.2d 883 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION BROTHERS, INC., Respondent. |
| Docket Number | No. 11716. |
| Decision Date | 14 November 1968 |
403 F.2d 883 (1968)
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
UNION BROTHERS, INC., Respondent.
No. 11716.
United States Court of Appeals Fourth Circuit.
Argued February 6, 1968.
Decided November 14, 1968.
Larry M. Wolf and Earle K. Shawe, Baltimore, Md. (Shawe & Rosenthal, Baltimore, Md., on brief), for respondent.
Before BOREMAN, WINTER and BUTZNER, Circuit Judges.
BUTZNER, Circuit Judge:
The National Labor Relations Board petitions for enforcement of its order directing Union Brothers, Inc., to bargain with United Furniture Workers of America, AFL-CIO.1 The company asserts that it was improperly denied a hearing in the unfair labor practice proceeding and that the board's order is predicated on an erroneous finding that an employee was a supervisor. We find the board's procedure and the result it reached to be unexceptionable and grant enforcement.
An election pursuant to a stipulation for certification upon consent election was conducted among employees in the woodworkers and wood finishers unit at the company's two furniture manufacturing plants in Baltimore on June 10, 1965. Results were 24 votes for the union, 23 against, with nine ballots challenged. The union filed objections to conduct affecting the election. After the customary ex parte administrative investigation, the regional director recommended that six challenges be sustained and two overruled. The ninth ballot was that of John Ellenberger, who the union claimed was a supervisor. The regional director recommended a hearing on Ellenberger's status in the event his vote was crucial. No exceptions to the report were filed. The board, adopting these recommendations, directed that the two confirmed ballots be counted and that a hearing, if necessary, be held to resolve Ellenberger's status.2 The revised tally, 25 for the union and 24 against, showed that Ellenberger's uncounted vote against the union would be determinative if upheld. An extensive two-day hearing was conducted in which the company, the union, and general counsel examined a number of witnesses.
After the parties filed briefs, the hearing officer issued a detailed report, resolving conflicts in the testimony and setting forth findings and recommendations. Before April 1961 Ellenberger admittedly was in charge of the company's Clement Street plant, where approximately 40 employees worked. The company contended that since April 1961 one of its vice presidents supervised the plant and that Ellenberger was retained only as a leadman. In May 1964 a mill superintendent was employed to help the vice president and to do clerical work previously performed by Ellenberger. The vice president and Ellenberger testified that Ellenberger had no supervisory authority and acted simply on instructions from superiors. The hearing officer concluded that the authority Ellenberger had before 1961 did not completely terminate with the arrival of either the vice president or the superintendent.
Ellenberger admitted he warned employees they would be fired if their work
It was uncontradicted that Ellenberger assigned work, switched men from job to job, handed out paychecks on occasion, requested men to work overtime, and checked and initialed the work of other employees. His activities ranged beyond the area in which he was allegedly a leadman. He often worked in the plant office, and his wages were $1.15 per hour more than the next highest paid leadman.
Upon conflicting testimony, the hearing officer found that Ellenberger hired employees and effectively recommended wage increases. In resolving conflicts the hearing officer properly considered that the president of the company and the plant superintendent did not corroborate Ellenberger's version of transactions of which Ellenberger claimed they had knowledge. The hearing officer found that Ellenberger was a supervisor and recommended that the challenge to his ballot be sustained. The board overruled the company's exceptions and certified the union.
After the company refused the union's request to bargain, general counsel charged a violation of § 8(a) (5) and (1) of the Act.3 The company admitted the request and refusal to bargain, but denied the unfair labor practices. General counsel moved for summary judgment asserting that the answer admitted all material issues except the status of Ellenberger. The board transferred the case to itself and issued a notice to show cause why the motion should not be granted. The company, in opposition, contended principally that it was improper for the board to decide the case without a hearing. It maintained that the challenge to Ellenberger's ballot was erroneously sustained, that summary judgment was not a permissible procedure, and that even if it were, the motion initially should have been decided by the trial examiner instead of the board. The board rejected the assertion that it had no authority to rule on the motion, found that a bargaining order would effectuate the polices of the Act, and directed the company to bargain upon request.
I.
The company contends that the board's denial of a hearing on the unfair labor practice complaint and its recourse to summary judgment violated the Labor Act, the Administrative Procedure Act, and the board's rules. Section 10 (b) of the Labor Act provides in part that any person...
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Pilot Freight Carriers v. INTERN. BROTH., ETC., No. C-219-WS-72.
...held that the Board's procedural standards for representational hearings satisfy due process requirements. NLRB v. Union Brothers, Inc., 403 F.2d 883, 886-88 (4th Cir. 1968). Thus, the Board has established the rule that, absent previously unavailable or undiscovered evidence, parties may n......
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NLRB v. Commercial Letter, Inc., No. 71-1246.
...Through the record of the representation proceeding, the issues are preserved for judicial review. N.L.R.B. v. Union Brothers, Inc., 403 F.2d 883 (4th Cir.1968). It should be noted that there is the opportunity and right to present evidence at the representation hearing. § The Board, in any......
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NLRB v. Clement-Blythe Companies, No. 13058.
...labor practice case. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 161, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); NLRB v. Union Bros., Inc., 403 F.2d 883 (4th Cir. 1968); NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir.), cert. denied, 389 U. S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967). But in t......
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NLRB v. Mar Salle, Inc., No. 22621.
...procedure is new, but its validity has been decided or assumed by every circuit that has considered it. NLRB v. Union Bros., Inc., 403 F.2d 883, 887 (4th Cir. 1968). Accord, NLRB v. Puritan Sportswear Corp., 385 F.2d 142 (3d Cir. 1967); NLRB v. Tennessee Packers, Inc., 379 F.2d 172, 176-177......
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Pilot Freight Carriers v. INTERN. BROTH., ETC., No. C-219-WS-72.
...held that the Board's procedural standards for representational hearings satisfy due process requirements. NLRB v. Union Brothers, Inc., 403 F.2d 883, 886-88 (4th Cir. 1968). Thus, the Board has established the rule that, absent previously unavailable or undiscovered evidence, parties may n......
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NLRB v. Commercial Letter, Inc., No. 71-1246.
...Through the record of the representation proceeding, the issues are preserved for judicial review. N.L.R.B. v. Union Brothers, Inc., 403 F.2d 883 (4th Cir.1968). It should be noted that there is the opportunity and right to present evidence at the representation hearing. § The Board, in any......
-
NLRB v. Clement-Blythe Companies, No. 13058.
...labor practice case. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 161, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); NLRB v. Union Bros., Inc., 403 F.2d 883 (4th Cir. 1968); NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir.), cert. denied, 389 U. S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967). But in t......
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NLRB v. Mar Salle, Inc., No. 22621.
...procedure is new, but its validity has been decided or assumed by every circuit that has considered it. NLRB v. Union Bros., Inc., 403 F.2d 883, 887 (4th Cir. 1968). Accord, NLRB v. Puritan Sportswear Corp., 385 F.2d 142 (3d Cir. 1967); NLRB v. Tennessee Packers, Inc., 379 F.2d 172, 176-177......