*1 af- is an Iraqi passport United States pass- to issue authority to Lebanese
front Thus, every while nationals).
ports for tor- penalizing laws may have
nation of another property conversion
tious no conduct is against such the rule
person, a cause of nations” and “law of
part rule does on violation based
action jurisdictional requirements satisfy 1350. U.S.C.A.
of 28 subject matter for lack of
The dismissal
jurisdiction
AFFIRMED. Petitioner, CORPORATION,
FOTOMAT RELATIONS
NATIONAL LABOR
BOARD, Respondent.
No. 77-1742. Appeals, Court of
United States Circuit.
Sixth
Argued April 1980. Nov. 1980.
Decided *2 1, 5, 6, Objections and were over- hearing,
ruled without a and Fotomat does appeal this action. The ordered 2, 3, objections on Fotomat’s and 4. Those are as follows: representatives, 2. Various union on the day of the election at various stores Employer, of the interfered with the by unlawfully conduct of the election coercing employees eligible who were by demanding to vote in the election employees remоve that said notices Employer’s from the bulletin boards and hand said notices to the union Calfee, Woodcock, Halter & F. Donald representatives legal under threat of Ohio, Cleveland, petitioner. Griswold, for action or other retaliation. Gofreed, Depu- Moore, Marjorie S. Elliott 3. The Labor National Relations Board Winkler, Counsel, Peter Associate Gen. ty representatives, Hehnen, James M. C., Le- D. Bernard N.L.R.B., Washington, Stephens, T. Blabey, John Thomas J. 8, N.L.R.B., Cleve- Director, Region vine, Joseph Mengel F. and Aleck J. Hаl- C., Diamond, Washington, D. land, Ohio, A. vorsen, at various stores of the Em- respondent. for election, ployer, conducting while ENGEL, KENNE- MERRITT and Before interfered with the conduct of the DY, Judges. Circuit by demanding employees election eli- gible to in the vote election remove
ENGEL, Judge. Circuit Employer’s notices from the bulletin the court dispute before This labor board removed such and/or notices and for enforcement cross-petitions upon Employer’s from the bulletin board certifying the NLRB an order of review of permit and refused tо the reposting International Retail Clerks 880 of the Local repost of such notices and/or did not AFL-CIO, bargain- Union, as the collective peri- such notices non-election of Fotomat employees ing agent ods, for thereby belitting denigrating shop- 26 kiosks located in its who worked Employer employees before met- throughout the Cleveland centers ping prejudice Employer. extreme of the area. ropolitan 4. The National Labor Relations Board Hehnen, representatives, an James M. 1975 conducted July on The Board Stephens, Blabey, between John T. Thomas J. stipulation to a pursuant election Joseph Mengel F. and Aleck J. Hal- the union. Because Fotomat vorsen, with the employees interfered conduct of working condition unique locations, variety the election at various stores fail- a wide worked in who others, voting peri- or two to maintain scheduled or with one usually alone agent Stipulation would ods as set forth in the the Board agreed Election, Upon Certification from locatiоn Consent agreed an route travel employee thereby depriving some times to obtain at fixed location opportunity kiosks a second to vote. votes, returning to most those the votes of in order to receive time evidentiary hearing, Following an later shifts. hearing officer recommended that the ob- voters, jections entirety. in their eligible be overruled Fo- approximately 72 Of exceptions against 21 voted tomat filed offi- union and voted for the timely report filed seven ob- cer’s and claimed that had not the union. hearing. Following a fair consid- the conduct of the elec- received jections relating to claims, require tions when he refused to Gener- Fotqmat’s eration findings and al Counsel furnish Fotomat with affida- hearing officer’s adopted the union as from Fotomat recommendations, certified the vits obtained bargaining repre- had used the General Counsel those same exclusive employees’ bargain impeach refused affidavits Fotomat’s witnesses sentative. stage for union, setting at officer ac- with the *3 for petition and bargain knowledged report company in his that the order to Board’s enforcement, company’s petition the should have been allowed to use the state- certification of question the Board’s ments in to rehabilitate the wit- review of for questions most serious The also in its The nesses. admits brief the union. relate to the appeal regulations required that its own disclosure in Fotomat’s raised not receive a hearing.1 did of these affidavits at the company’s assertion Al- objections to the conduct hearing though appears hearing on its the officer fair refusing erred in examination the election. and use of of statements, sought he the to overcome the I. impact by his error disregarding of the Gen- eral initial the hear Counsel’s use of the statements first claims regula- impeachment purposes.2 Board’s own for violated the ing officer 1. 29 C.F.R. nent testified in to contents of for section shall also ness, it to be delivered which relates complaint under section called ing party trial examiner mеnt spondent, general paragraph in subject specting dom of Information employee es gard ments after direct producing present randa, § subpoena (c) (b)(1) (a)(1) Except 102.118 Board cross-examination. any agent part: tecum; his examination production subject 102.69(d) [******] thereto; production [******] defined) (as by the witness has testified. or records counsel, any matter of the possession Notwithstanding requests cognizable administrative law hereinafter § provisions of ad testificandum order the has testified (a) of the Board shall any postelеction hearing pursuant files, records, etc., prohibited any matter 102.118 files, general of the Board of this shall, upon to the as such statement relate such witness apply after documents, employees prohibited directly testimony. provided any party has moved for as of the Board or of the of the and use for the production (1978) provides defined) counsel Act, section, testimony from subject matter as to paragraph in 10(c) of witnesses’ state- which the witness to the no ... officer motion or which relates to judge shall order general testifying in or hearing upon under the Free- of such witness reports, after a witness prohibitions subpoena of the in § by of pursuant If the entire witness has produce of the wit- respondent (as 102.117 re- possession (b) any of the re- in purpose act, counsel herein- memo- of this charg- to the in re- state- perti- from duc- or or of to 2. 29 U.S.C. wrote: ble in the district courts of the United States.” accordance with the rules of evidence quires The Board rules find Federal Rules of Evidence “shall, the National Labor Relаtions In a footnote to his was not davit after it was used for poses now convinced that this vit which was denied because the affidavit. After Counsel for the made another pleted that she was ployer were plained investigation in the affidavit Bulk indicated that the Counsel davit which she and her Employer an shown or disclosed to written or Following direct and cross (a) Examining shown nor its contents disclosed to him at statement. ing prior administrative law has testified. The of this section shall be exercised a officer time, that an unfair labor so far as open five was in error since it denied the examination of § engaged in cross examination. for the opportunity 160(b) (1976). but on presiding. discrepancy statement made not, merely giving opportunity request examining practicable, Region witnesses the statement need not be gave to request judge support authority report, objections. Apparently, ten to opposing in the administrative showed Bulk between her affidavit Bulk, peruse provides: under attempt minutes. She ex- ruling denying a witness concern- to Rule impeachment pur- the same shall be an estimate in concerning prior practice hearing, by be conducted in exercised peruse Act, section hearing paragraph (b) him, Bulk’s affida- 613(a) examination, Region counsel. by by to rehabili- which re- Employer Employer the claiming the affi- whether the affi- applica- 10(b) officer by of the in com- hear- polls I am Em- the of here, not been made what has occurred available Essentially, either to the report Board or to us. His has makes fac- therefоre, officer is that determinations, right tual credibility findings accord to failed to and, dubiously-colored witness statements pre-existing characterizations use more, permit whose day accuracy impossi- to this refused fairness and are even those statements ble for either the company to examine Board or us to review. they might potential rehabili- pro- whether mischief in such a to determine altogether or otherwise favor cedure must be apparent. the witness tate Our circumstances, incomplеte, Board’s, record is position. such as was the “unring augmentation and we cannot consider attempt officer’s before by petitioner’s is a us disregarding the statements unilateral inclu- bell” device, appendix sion in the copies unsatisfying especially particularly Prestolite affidavits a satisfactory were neither made substi- the statements when tute. nor included available *4 independently Where, we could objection,
the record so that over the Board’s cer- impact. In this re- potential their tification evaluate is made without the benefit ei- is not unlike that which ther of a spect the error or of the full record compiled by enforcement of the upon by our denial of and relied occasioned the inves- officer, tigative Wire Division v. justi- order in Prestolite believe we are Board’s 1979). NLRB, (6th taking fied in it, F.2d 302 Cir. record as we 592 find Prestolite, investigat- construing well-pleaded and in Regional Director factu- objections al assertions in objections to the election Prestolite’s ed viewed, most favorable to it. So the Board overrule and recommended Board’s decision to issue a without certification objections certify the union must be considered an abuse of its discre- Regional Director never hearing. The to the Board the record he had transmitted during investigation. his assembled Id. at 306-07. also See NLRB v. St Fran- without the bene- Board certified the union Hospital Lynwood, cis 601 F.2d 417 Regional Director’s record and
fit of the (9th 1979). Cir. hearing. We observed: without a The affidavits which should have been Regional if the failure of the Even disclosed at the were taken from to transmit the record before Director Bulk, Susan Lisa Shee- expressly him to the Board does not vio- han, Cobb, Joyce and Elaine Seme. The obligation his under 102.- late Section General Counsel used each affidavit 69(g), problems by faced the Board in cross-examine the concerning witness by its review and this court in ours are place events which took at the Fotomat complicated by procedure. such a vastly kiosk where that witness voted. In each therefore, are,We left with the dilem- case it was clear error for the offi- reviewing a ma of decision of Board deny cer to a request by Fotomat’s counsel adequate without an record because the for access to the affidavit after it had been had no such record before it. Board itself impeachment used for purposes. Under Director, Regional making in his somewhat similar circumstances our court which report, upon relied evidence was has at least twice refused to hold that such petitioner unavailable to and which has an error was harmless. However, testimony. they
tate the witness’ had been shown to these witnesses and rely Employer prejudiced questioned apparent I is not since do not were relative to incon- testimony upon Bulk’s after she had been sistencies between their affidavits and their in part shown her affidavit the recommendations But in most requested Employer herein. The also the issues raised were not relevant to the and, opportunity objections again, rely upon any was denied an to review affida- I do not Seme, Sheehan, by given testimony given vits the witnesses werе Cobb, copies and Reid in the administrative investi- shown of their in affidavits rec- gation after the affidavits ommendations herein. 324 opportunity vote, denied Federal of Televi- or that the v. NLRB American (6th Artists, F.2d strayed 285 902 Board in agents any meaningful Radio
sion and examiner refused 1961), the trial way appointed where voting Cir. from schedule. Counsel to disclose require General presented The strongest evidence testi- witnesses who statements of pretrial point on this was employee’s one court remanded hearing, our fied at the Board agent remained to cor- with instructions Board cause at her “About 5 location minutes. Some- Indeed, in Pro- procedural error. rect thing like that.” NLRB, House, F.2d Inc. vincial show, however, The evidence did that un- 1977), applied prin- our circuit (6th Cir. representatives preceded ion the Board had enunciated which the Board ciples agent by many several minutes in locations NLRB Engineering, 166 Precision Athbro to observe condition of the kiosk and (1st (1967), F.2d 573 enforced No. objected fact that anti-union litera- 1970), to that certain conduct hold Cir. ture in the posted kiosks. In some Board’s agents impugned representatives instances the union asked to warrant deni- neutrality was sufficient literature, the employees to remove the order, bargaining even enforce a al agent in some required cases showing that the con- though there was no dispute removal. The does not upon effect the result had decisive duct literature campaign may posted not be election. in a polling place an election. There therefore to find especially difficult It was, true, it is the one instance where testi- *5 harmless, because it not Board’s conduct the mony the agent indicated that Board al- employer the access only wrongfully denied lowed employees the to the vote outside the it was entitled at to evidence which required kiosk but nevertheless removal of objections, on but also denied its the literature from the kiosk walls. Even material so that its court access to the this instance, however, in that the weighed prejudice could bе in the potential conflicting. was place. which took of the context However, disapprove this as much as we of judgment, our the of procedure, a careful examination unfair complaints about removal of this literature suggest any preju- fails to the entire record true, may are without merit. It be as the of elec- upon effect the fairness dicial claimed, company that it was entitled to tion. post the notices at all times when the elec complained of of the difficulties Most progress. However, tion was not in it is conducted, election was because the arose equally true that there is no evidence to consent, sepa- in Fotomat’s 26 by common show any effort to made shopping park- kiosks located in center rate remove material from the kiosks dur greater throughout lots Cleveland fact, ing the presence election. of arrangement This created circum- area. during may literature election have which at best awkward for the stances were practiсe amounted to an unfair labor on the example, For in one of election. conduct part company. We therefore see place balloting took on the instance nothing wrong in the union representatives’ car in agent’s rather than hood of Board effective to the presence of that However, sugges- was kiosk. there no election, the course material of the procedure, this proofs from tion agents’ or the removing Board actions in irregular, any was real perhaрs while If the company literature. did not see provided were importance. The fit to remove the material its own initia ballot, to shield the a three-sided box with tive, right we conclude that has no to a belief that employee no testified complain transpired. of what others. be observed her ballot could endeavoring to precise Without define a support the com- was no evidence There rule, it for our any employee purposes is sufficient here to allegations that pany’s POIA, way priоr in any decision of our to discern court is that we fail observe might judicata. election res of the the outcome affected. been hypothetically even have Potomat’s claim that it should have witnesses’ testi- nature The limited reports during been allowed access to these of the circumstances the failure mony and hearing presents ques a more difficult which the of facts from any set suggest States, In Jencks v. tion. United 353 U.S. further reasonably have might 1007, 1 (1957), L.Ed.2d 1103 S.Ct. of the state- by use position their fortified Supreme official, Cоurt ruled that a union be a futile us that would persuade ments having accused of filed a false non-commu Board’s acknowl- to remand. gesture affidavit, right nist had a to make the largely dissipates any of error edgement government produce pretrial statements of and is upon the Board effect prophylactic informers, FBI who testified at his criminal frustrating of further by the harm offset trial, purposes of cross-examination. will expressed plainly applied The Second Circuit the Jencks rule in the election. who votеd practice to NLRB unfair labor hearings in that, re- appeal claims on Potomat also NLRB v. Adhesive Products Corp., 258 F.2d irregularities, procedural gardless (2d 1958), Cir. and the adopted of the election the conduct objections to reasoning of Adhesive Products in its meritorious, there- that the Board were in Mfg. Corp., decision Ra-Rich 121 NLRB certifying abused its discretion fore (1958). indi- foregoing discussion As our election. regulations The Board’s current imple- contention, as we find cates, reject this ment the Jencks rule in NLRB hearings. objeсtions to the elec- Potomat’s merit in no 102.118(c) (1978) provides 29 C.P.R. any any post- “after witness has testified in election . .. any party II. production moved for the was erro that it Potomat also claims possession ... of such witness in prepared reports access neously denied agent of the Board which relates to the *6 concerning the conduct of agents by Board subject matter as to which the witness has that it company claims the election. testified” the trial examiner shall order the reports both to discovеr these entitled was statement, production of that or the rele- Freedom of hearing under the the before portions vant of the statement. The diffi- Act, hearing during the Information culty company’s complaint with the here is regulations and the own the Board’s under initially that the material was demanded at rule.” “Jencks so-called company a time when the was not entitled us, the it. uncertain already considered to On the record before has court Our litiga- is at best whether the ambiguous in this filed Fotomat claim FOIA NLRB, denying request 573 F.2d offiсer in Potomat’s the Corp. v. for Fotomat In material at this time also that 1978), we affirmed the district indicated a (6th Cir. 959 timely request in fa- would be summary judgment denied. grant of court’s event, no company’s the there is evidence on the record Insofar as the Board. vor of request the us the was relitigate to before that renewed at review seeks for petition appropriate under the time.3 While we information believe discoverability of that quest “The com- was never made.” We note that in its brief that the stated 3. The Board rеgulation require production of Board’s does not that pany the [the .. . not entitled testimony they given employ- agents’] had testi- witness’s was adverse to the until memoranda 102.118(c) (1978) requires only damaging mony er. 29 to the case.” C.F.R. assuming production request that such that “even the for be made after also notes Board during company’s] testimony, testimony was elicited witness’s and that the materials [the agents, subject interrogation requested memo- their relate to the matter of the properly testimony. available not be made wоuld witness’s randa request. appropriate a re- . . . Such an absent 326 litigant party greater reasonable a earlier and access have more would been indicated to have Board’s case he officer than would other- desired, statements, if clearly that wise have. As the lower courts have agents Board requested noted, be
should even without intimidation or testified, so does his failure to do had suspected harassment violator with ad- counsel the failure of the excuse access to casе could vance “ the Board’s request proper time. to renew permit which would ‘construct defenses ” go violations to unremedied.’ New that because further contends England Hospital Medical v. Center witnesses agents adverse were NLRB, 377, (CA 1976), 548 F.2d 1 382 meaning Federal Rules within Evidence, quoting exami- Title Guarantee v. NLRB treat Fotomat’s Co. should [2 [484], cross-examina- possibili- the witnesses as a 534 F.2d at 491. This nation Cir.] they inspection thus allow before simply ty prehear- tion arises from the fact of argument misconceives testify.4 This statements, disclosurе of witness Both underlying the Jencks rule. rationale whether witness is favorable or ad- require regulations and the Board’s Jencks verse, employee or nonemployee. mate- only those disclose government Although company’s request here was which the testimony relate which rials hearing, made disclosure of the already Before the wit- given. has witness reports before of Board testified, he of whether regardless ness agents many would create the same cross-examination, it is if” “as is treated Requiring problems. disсlosure of a wit- materials to so restrict the impossible ness’s statement he before testified would divulge.5 government must desired, company, forego enable if it company to A rule which would allow calling altogether the witness its exami- if in advance witness’s statement examine nation of indicated that to be pur practical all testimony would for of his advantageous the more course of action. recog We discovery. allow unlimited poses important, procedure More such a would Co., 530 F.2d Valley in NLRB Mold nized rummage through allow the denied, Cir.), 429 693, (6th U.S. cert. internal memoranda agents of the Board 77, (1976), 50 L.Ed.2d 97 S.Ct. agents’ thought and to discover matter discovery “is a pretrial allowance processes and concerning observations mat- Board.” the discretion of the within ters which were never ex- intended to be Co., 437 Rubber v. Robbins Tire & NLRB plored at the 2311, 2326-27, 241-42, U.S. S.Ct. rec (1978), Supreme Court L.Ed.2d 159 III. prehear problems inherent ognized Fotomat also claims that the *7 of witnesses’ statements ing disclosure improperly scope Marshall officer limited the Mr. Justice рroceeding. NLRB support, In points the Court: Fotomat wrote for hearing officer’s ruling that Fotomat could short, wit- prehearing disclosure agents they not ask how trans kind involve the would nesses’ statements ported polling the ballot between would boxes Congress believed harm places. NLRB We note with that none of Fotomat’s “interference” constitute giving objections proceedings: challenge that of can be construed to enforcement 611(c) Rules of Evidence 5. If after examination of Federal the statement further 4. Rule questioning necessary impeach party provides: ness, a hostile wit- is calls either to “[W]hen witness, recollection, party, identified refresh the a witness witness’s or an adverse or by may party, interrogation supplement testimony, be the witness’s the wit- with an adverse may leading questions.” Although this rule allows ness be called for further examination or though he party his as to treat own witness cross-examination. cross-examination, it does not trans- were on into witnesses examination of hostile late direct purposеs. for all cross-examination MERRITT, agents trans- Judge, Circuit dissenting. in which manner issue was raised box. This ported the ballot I cannot conclude that the Company was hearing. Our re- time at the the first prejudiced not when it was denied certain convinces us of the record view may affidavits. The affidavits contain actually compa- allowed the hearing officer unique evidence favorable to the Company. strict letter of its range beyond the ny to They may tell, not. We simply cannot re- the witness- examination of objectiоns in its gardless probabilities of where the may lie. compa- allowed the The officer es. is it Nor reasonable for us to require the inquire into all matters con- freely to ny Company prove the usefulness of the polling places. the activities at cerning affidavit’s contents. This smacks of Catch- filed the em- light 22. If the Company knew what the eon- hearing officer’s not find the ployer, do were, they tents would not need to ask for at the proper inquiry on the areas of rulings them. I do not believe our Court should unduly restrictive. condone such heavy-handed action by the deny Board. I would enforcement and re- IV. quire the Board to conduct proceed- further Finally, Fotomat contends that ings. made the majority support lack of union’s improper of the union Board’s certification bargain. refusal to justified Fotomat’s company asserts that the number of
The employees in the Cleve
Fotomat stores and approximately increased 50%
land area have Fotomat further claims the election.
since a “massive turnover” of
that there been the election. employees since Fotomat BUCHBINDER, Gilda Ann to this claim is that the plain answer Plaintiff-Appellant, in the Board’s or- bargaining specified unit at the 26 employees is limited to the der operation which were in Fotomat locations REGISTER, Levon C. 26 loca- time of the election. These Defendant-Appellee. listed in the Board’s specifically are tions No. 78-1580. bargaining unit which the
description of the represent. Thus the union certified United Appeals, States Court of the certification of union election and Sixth Circuit. at the new employees effect on the have no locations. 13, Argued Aug. 1980. produced company has no evi Decided Nov. 1980. majority employees of new do dence that a As we observed in support riot the union. Manor, Inc., Washington 519 F.2d
NLRB v. 1975): (6th high “A turnover Cir. unaccompanied by objective support that new do
evidence *8 majority evidence of loss of
the union is no We therefore con
status the union.” for its that the fourth basis
clude bargain is without merit.
refusal to Board’s order will be
Accordingly, company’s petition for re-
enforced and the
view is denied.