Provincial House, Inc. v. N.L.R.B., 76-1470

• Citation: 568 F.2d 8
• Decision Date: 30 December 1977
• Docket Number: No. 76-1470,76-1470
• Parties: 97 L.R.R.M. (BNA) 2307, 82 Lab.Cas. P 10,282 PROVINCIAL HOUSE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 8

568 F.2d 8

97 L.R.R.M. (BNA) 2307, 82 Lab.Cas. P 10,282

PROVINCIAL HOUSE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 76-1470.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 13, 1977.

Decided Dec. 30, 1977.

Julius M. Steiner, Pechner, Dorfman, Wolffe, Rounick & Cabot, Jerald R. Cureton, Philadelphia, Pa., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Vivian A. Miller, Washington, D. C., Bernard Gottfried, Director, Region 7, N. L. R. B., Detroit, Mich., for respondent.

Before EDWARDS and ENGEL, Circuit Judges, and GRAY, ^* Senior District Judge.

EDWARDS, Circuit Judge.

Petitioner, Provincial House, Inc., a nursing home located in Cass City, Michigan, petitions for review of a National Labor Relations Board order finding an unfair labor practice in petitioner's failure to bargain with a union which had been certified after winning an NLRB election. The Board filed a cross-petition for enforcement. The Board's order is reported at 222 N.L.R.B. No. 207 (1976).

The most important issue presented is petitioner Provincial's contention that a Board employee, investigating unfair labor practice complaints, failed to observe the required neutrality of the Board's procedures. The facts pertaining to this issue are essentially undisputed and are set out below from the Hearing Officer's Report and Recommendation, which was adopted by the Board:

With the exception of conflicting testimony as to certain remarks, the facts offered at the hearing in support of Objection 2 are virtually without dispute. Thus, sometime in February, 1975, subsequent to the filing of the petition in this matter, the Petitioner also filed unfair labor practice charges in Case No. 7-CA-11773 involving the Employer's Cass City facility. The Petitioner's National Representative, Thomas Wojtala, had made arrangements with Board Agent Gregory Muzingo, who had been assigned to investigate the unfair labor practice case, to interview Petitioner's witnesses on February 25, 1975. The arranged meeting place was the Wildwood Farms Restaurant at the intersection of M-81 and M-53, immediately outside Cass City, Michigan. The Wildwood Farms Restaurant from testimony, is a dual-level establishment. The upstairs area is comprised of two dining rooms with a bar in addition. The lower level consists of a meeting room which was described as approximately 25 feet by 50 feet in dimension.

Board Agent Muzingo was to meet the first witness to be proffered by the Petitioner in support of the charges at approximately 1:00 P.M. on that date. At approximately that time on February 25, 1975, Wojtala met Board Agent Muzingo at the restaurant and also found there two unit employees waiting to give affidavit testimony to the Board agent in support of the unfair labor practice case. Between 1:00 P.M. and 2:00 P.M., Board Agent Muzingo secured affidavit testimony from the first two employee witnesses, in the upstairs dining area of the restaurant. At approximately 2:00 P.M., as additional employees began to arrive, and in view of the fact that there were still other, non-involved, customers in the restaurant, Wojtala suggested that they all retire to the downstairs meeting room. In that lower level, Board Agent Muzingo, at a table at the extreme rear of the meeting room, continued his taking of affidavit testimony from employee witnesses as they arrived. Apparently, Wojtala had not made the arrangements for the specific employees to be interviewed by Muzingo. These arrangements had been made by employee adherents of the Petitioner.

During the time Board Agent Muzingo was securing affidavit testimony from employee witnesses at the rear of the downstairs meeting room, at the front, Wojtala proceeded to answer employee questions concerning the Petitioner's organizing campaign and the election. Wojtala testified that during the course of that afternoon and until 5:00 P.M., approximately 30 unit employees came and went. Wojtala also advised arriving employees that, if they desired drinks, including alcoholic beverages, they could go to the bar upstairs, tell the bartender that the drinks were to be charged to Wojtala, and return downstairs with them. Wojtala admitted that several employees accepted his offer. No evidence was presented that Board Agent Muzingo either participated in the question and answer discussions conducted by Wojtala or had any kind of beverages. With the exception of one incident to be described hereinbelow, Board Agent Muzingo and Petitioner Representative Wojtala did not converse in the meeting room until Muzingo left between 4:30 and 4:45 P.M. that afternoon, after having secured six to eight employee affidavits.

About 4:00 P.M., Muzingo came to the front of the room, where Wojtala was...