NLRB v. Union Brothers, Inc.

Citation403 F.2d 883
Decision Date14 November 1968
Docket NumberNo. 11716.,11716.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNION BROTHERS, INC., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

COPYRIGHT MATERIAL OMITTED

Arthur A. Horowitz, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison, Atty., N. L. R. B., on brief), for petitioner.

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 did not improve. His characterization of this conduct as friendly warnings or friendly gestures was uncorroborated. He admitted he sent an employee home for coming in late. On none of these occasions did he indicate that he was acting on instructions. Ellenberger also signed discipline slips as foreman. The vice president denied giving Ellenberger authority to do this, but Ellenberger claimed authority from the plant superintendent. One employee testified that he complained to the plant superintendent after Ellenberger ordered him to go home, and the superintendent said he was not going over Ellenberger's head. This testimony was not denied by the superintendent. Other employees testified they were docked by Ellenberger for stopping work early.

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 against whom an unfair labor practice has issued "shall have the right * * * to appear in person or otherwise and give testimony at the place and time fixed in the complaint * * *."4 This court has held, "Due process of law demands * * * that where there is a substantial and material issue of fact relating to the validity of a representation election that a hearing be conducted at some stage of the administrative proceeding before the objecting party's rights can be affected by an enforcement order." NLRB v. Bata Shoe Co., 377 F.2d 821, 825 (4th Cir.), cert. denied, 389 U.S. 917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967).5 This requirement was fully met. Pursuant to the board's rules,6 the regional director investigated the election complaint and found that Ellenberger's status raised substantial and material factual issues. The board adopted his recommendation for a hearing, which was conducted in accordance with the board's rules by a hearing officer.7 The parties were afforded the right to present evidence and to examine and cross-examine witnesses under oath. In accordance with the board's direction, the hearing officer reported resolutions of credibility, findings of fact, and recommendations. The company had an opportunity to file with the board a brief and exceptions challenging the hearing officer's conclusion that Ellenberger was a supervisor. When the complaint and answer in the unfair labor practice proceeding were subsequently filed the only material issue was the status of Ellenberger. Again the company was afforded an opportunity to present new or previously unavailable evidence on this point. Only after it failed to offer any did the board grant the motion for summary judgment. This procedure satisfied the requirements of due process, the Labor Act, and the board's rule.8 In the absence of newly discovered or previously unavailable evidence, the company was not entitled to relitigate the status of Ellenberger. "A single trial of the issue was enough." Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162, 61 S.Ct. 908, 917, 85 L.Ed. 1251 (1941). The summary judgment procedure in no way impaired the company's right to judicial review of the crucial issue in the unfair labor practice proceeding — the status of Ellenberger. This is because the record of the hearing in the representation proceeding must be filed with the court together with the record of the unfair labor practice proceeding.9 The board's summary judgment procedure is new, but its validity has been decided or assumed by every circuit that has considered it. E. g., NLRB v. Puritan Sportswear Corp., 385 F.2d 142 (3rd Cir. 1967); NLRB v. Aerovox Corp., 390 F.2d 653 (4th Cir. 1968); LTV Electrosystems v. NLRB, 388 F.2d 683 (4th Cir. 1968); NLRB v. Carolina Natural Gas Corp., 386 F.2d 571 (4th Cir. 1967); Neuhoff Bros., Packers, Inc. v. NLRB, 362 F.2d 611 (5th Cir. 1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1027, 18 L.Ed. 2d 106 (1967); NLRB v. Tennessee Packers, Inc., 379 F.2d 172 (6th Cir.), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967); McComb Pottery Co. v. NLRB, 376 F.2d 450 (7th Cir. 1967).

NLRB v. KVP Sutherland Paper Co., 356 F.2d 671 (6th Cir. 1966), upon which the company relies, is inapposite. There the court was critical of the board's summary judgment procedure and the failure of the board to grant a hearing on the unfair labor practice charge. The remand, however, limited the hearing to facts not available at the time of the certification hearings. We do not read KVP Sutherland as prohibiting summary judgment in all cases, nor has the Sixth Circuit placed such a broad interpretation upon the case...

To continue reading

Request your trial
17 cases
  • Pilot Freight Carriers v. INTERN. BROTH., ETC.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • July 23, 1980
    ...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......
  • NLRB v. Commercial Letter, Inc., 71-1246.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 11, 1972
    ...by the Board. 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......
  • NLRB v. Clement-Blythe Companies
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 9, 1969
    ...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......
  • NLRB v. Mar Salle, Inc.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 18, 1970
    ...judgment 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......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT