United Steelworkers of America, AFL-CIO v. NLRB

• Decision Date: 24 October 1967
• Docket Number: No. 20821.,20821.
• Citation: 386 F.2d 981,128 US App. DC 219
• Parties: UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 219, 386 F.2d 981 (1967)

UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 20821.

United States Court of Appeals District of Columbia Circuit.

Argued September 22, 1967.

Decided October 24, 1967.

Mr. Michael Gottesman, Washington, D. C., with whom Messrs. Elliott Bredhoff and George H. Cohen, Washington, D. C., were on the brief, for petitioner.

Mr. Lawrence M. Joseph, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Marcus W. Sisk, Atty., N. L. R. B., were on the brief, for respondent.

Before FAHY, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

FAHY, Senior Circuit Judge:

On the petition of the Union, United Steelworkers of America, AFL-CIO, to review and set aside an order of the National Labor Relations Board, we grant the petition in one respect and otherwise deny it.

The Union claimed it represented a majority of the employees of the Wagner Industrial Products Company, Inc., of Winnecone, Wisconsin, and sought a bargaining conference with the Company. At about the same time, on August 13, 1964, the Union petitioned the Board for an election, which was held. The Union lost, with 25 votes in its favor and 38 against it. Objections to the election were filed by the Union, based on pre-election conduct of the Company alleged to have been coercive of the employees. Following a hearing on the objections the Hearing Officer found that two company supervisors had indeed made pre-election threats, that the Company had distributed a campaign letter which "unduly intruded upon the employees' freedom of choice" and that during the campaign the company Vice-President made a speech which created a "generally coercive atmosphere." The Board adopted the Hearing Officer's recommendation that the election be set aside, and ordered a new election which has not yet been held.

Following this order the Union filed charges of unfair labor practices based on the Company's conduct which had led to the Union's objections to the election. A Board complaint followed, alleging violations of Sections 8(a) (1) and 8(a) (5) of the Act. At the hearing on the complaint the parties agreed that the Trial Examiner should "take notice" of the record in the representation proceeding, and the Company introduced the testimony of two additional witnesses. On the basis of the full record the Trial Examiner found that the two supervisors had not violated Section 8(a) (1) in the respects already mentioned, and that the campaign letter and the speech of the company Vice President did not constitute violations of Section 8(a) (1). Moreover, the Trial Examiner found that the Company had not violated Section 8 (a) (5) and 8(a) (1) by refusing to bargain with the Union.

The Trial Examiner's decision was entered February 24, 1966. On May 14, 1966, the Company moved the Board to reopen the record in the unfair labor practice proceeding to receive copies of court records showing pleas of guilty, followed by judgment of guilty, of mail fraud, fraudulent tax claims, and forgery, committed by the principal union witness in the representation proceeding. One count charged that he had used 14 aliases in his scheme of fraudulent claims for refund of federal gasoline taxes amounting to more than $59,000.00. The Board granted the Company's motion, and on the basis of this new evidence decided to disregard the testimony which the witness had given in the representation hearing.

In this court the Union urges for the first time that it was error for the Board to receive the new evidence. We see no reason why the Board, before it issued its decision, could not in the exercise of a sound discretion entertain and grant the motion to reopen the case to receive the additional material evidence which was not available at the time of the hearing. Cf. NLRB v. Greater New York Broadcasting Corp., 147 F.2d 337, 338 (2d Cir. 1945); NLRB v. Standard Oil Corp., 138 F.2d 885, 889 (2d Cir. 1943) (per L. Hand, J.).

As a result of its consideration of the augmented record the Board concluded that the General Counsel had not established the alleged 8(a) (1)...