Pacemaker Corp. v. National Labor Relations Bd., 12344.

• Decision Date: 13 November 1958
• Docket Number: No. 12344.,12344.
• Citation: 260 F.2d 880
• Parties: PACEMAKER CORPORATION, an Indiana Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

260 F.2d 880 (1958)

PACEMAKER CORPORATION, an Indiana Corporation, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12344.

United States Court of Appeals Seventh Circuit.

November 13, 1958.

Larry S. Davidow, Davidow & Davidow, Detroit, Mich., Al. J. Spahn, Elkhart, Ind., for petitioner.

Thomas J. McDermott, Associate Gen. Counsel, Fannie M. Boyls, National Labor Relations Board, Washington, D. C., Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., James C. Paras, Atty., National Labor Relations Board, Washington, D. C., for respondent.

Before DUFFY, Chief Judge, and HASTINGS and KNOCH, Circuit Judges.

DUFFY, Chief Judge.

Pacemaker asks us to review and set aside an order of the National Labor Relations Board dated May 15, 1958 and reported in 120 NLRB No. 133. In its answer the Board requests enforcement of the order. The Board found Pacemaker violated § 8(a) (2) and (1) of the Act by dominating the formation and administration of, and by contributing support to an employee committee which the Board found to be a labor organization within the meaning of the Act. The Board also found Pacemaker violated § 8(a) (3) and (4) of the Act, 29 U.S. C.A. § 158(a) (3, 4), by its discharge of Clifford Black.

Pacemaker Corporation is and has been engaged in the manufacture of mobile homes and house trailers in Elkhart, Indiana. At the time of the proceedings before the Board, it had 245 employees. There never had been a union in the plant.

In the summer of 1956, the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW), AFL-CIO, was attempting to unionize Pacemaker's employees. On August 28, 1956, the Union filed with the Labor Board a charge accusing Pacemaker of discriminatory action against employee Grise. On September 26, 1956, the Union filed its first amended charge restating the accusation of discriminatory action against Grise, and adding (a) the charge that three employees were discharged for labor union activities, and (b) two employees had been interrogated on the job about labor organization. On October 4, 1956, the Union waived further proceedings on its charges and elected to file a petition for a representation hearing and election.

A representation hearing was held on October 19, 1956 upon the question of whether the Union was entitled to have an election. The hearing was scheduled to commence at 10 a. m. Sometime previous to that hour on that morning, Pacemaker received a telegram from the Union requesting that five employees, including Clifford Black, be permitted to attend the hearing. Black requested permission of Conrad, his group leader, to leave the plant at 9:30 a. m. Conrad forwarded the request to the plant superintendent. At 8:30 a. m. Conrad informed Black that "he was free to go to the meeting; that the company could not hold him but he was leaving at his own risk." Black returned to work. About 9:25 a. m. Conrad came over to Black's bench and reminded him it was approaching the hour he wanted to leave. Black left at 9:30 a. m. and went directly to the hearing. At the morning recess Black was served with a subpoena, and he testified during the afternoon recess. Subpoenas likewise were issued for the four additional employees; two of these were served during the noon recess and they attended the afternoon hearing. The deputy sheriff who had the subpoenas for service was unable to serve the other two.

During the course of the representation hearing on October 19, the hearing officer indicated that the hearing could be concluded on that date. In the late afternoon the Union representative asked for an adjournment. Pacemaker objected, claiming a lack of good faith on the part of the Union. The hearing officer ordered an adjournment stating that the hearing would be resumed about November 1st. Before the adjourned date was reached, the Union filed a second amended charge adding to the original charges its claim that Black had been discharged on October 22, 1956 for his activities in behalf of the Union.

Upon the filing of the second amended charge, the regional office of N. L. R. B. refused to proceed further with the representation hearing. As a justification for such refusal, the Board points to a practice which it has adopted. This practice is not based upon statute or even a regulation, but the Board has determined it will not conduct a representation election where unfair labor charges have been filed by one of the parties.

The practice adopted by the Board is subject to abuse as is shown in the instant case. After due notice both parties proceeded with the representation hearing. Possibly for some reasons of strategy near the close of the hearing, the Union asked for an adjournment. Thereafter it filed a second amended charge of unfair labor practice. By such strategy the Union was able to and did stall and postpone indefinitely the representation hearing. In our opinion the Board's practice is unfortunate, but we do not think we have any power in the instant case to do anything about it. We cannot, as Pacemaker suggests, order that all action upon the Union's charges of unfair labor...