*1 statement, or at least show agree- summary of Lazard-D B & ment, persons prepared Lazard legally responsible. whose for acts surely surprise dis- come as a did not control that Lazard
cover machinery. proxy Finally, if the Fund’s
proxy statement should be held to misleading, plaintiffs’ remedies injunctions or
not limited to rescission accounting prof-
but could for include wrongfully Elec- obtained. Mills v. Co.,
tric Auto-Lite
386-
concerning claim, re- well as
spect considered, to that earlier if found warranted, to be is in the first instance district court. granting The order motion defendants’ summary judgment is reversed and pro-
the cause is remanded for further
ceedings opin- not inconsistent with this
ion.
GENERAL PRODUCTS, STEEL INC.
Crown Carolina, Inc., Flex of North Petitioners,
NATIONALLABOR RELATIONS BOARD,Respondent.
No. 14316.
United Appeals, States Court of
Fourth Circuit.
Argued Nov. 1970. July 14,
Decided
Stanley N.L.R.B., Zirkin, Atty., R. brief), respondent. HAYNSWORTH, Judge, Chief Before Judge, WINTER, THOM- Circuit Judge. SEN, District THOMSEN, Judge. District Petitioners, to con- found single employer, be referred will stitute collectively In 1964 as General Steel. intervenor, union, attempted employees. organize General Steel’s signed Claiming that it authoriza- held majority of General tion cards recogni- employees, requested Steel’s meeting. and a union had obtained Board found valid cards from 120of the question. Steel in the unit General stating recognize union, refused union’s claim it did not believe pe- majority union filed a status. The election; representation tition for a union was election ordered and the defeated. (1) that dur- then found:
The Board ing campaign the union’s Steel General engaged activity in viola- coercive Act; (2) (1) 8(a) tion of § refusal General Steel’s by good faith doubt was not motivated majority status, and violated § as Thereupon (a) (5). Board issued requiring bar- an order Steel General gain with the union. petition review, af- court On finding
firmed General engaged in conduct violative Steel portions 8(a) (1), those and enforced § directing Steel of thе order coercing cease and desist from ployees post appropriate notices. Jr., Salisbury, Hamlin, P. Lewis C.N. held the violations But this court (Kluttz Hamlin, Salisbury, C., & N. (1) 8(a) Board were not found brief), petitioners. prevent pervasive so extensive Atty., (Arnold Moore, Elliott conduct secret valid Ordman, bargain- Counsel, Gen. Dominick L. Ma and denied enforcement of noli, Products, Counsel, Associate Gen. Marcel order.1 Inc. Counsel, Mallet-Prevost, N.L.R.B., Asst. Gen. F.2d following decide, 1. This court added the violations as foot the § per- opinion: 3 to note found to have occurred were actually “Whether or not remedies were the election vasive that available properly reasonably invalid, free held was to assure a held we do calculated granted extraordinary certio- order in less rari, pervasive prac- consolidated the case two oth- cases marked less er from this Circuit and with the still cases tices nonetheless tendency Sinclair case Labor Relations to undermine [National strength impede proc- Co., 157] Sinclair *3 Circuit, opin- authority from the First esses. The to issue and filed Board’s showing ion ing Co., order on a of sub nom. N.L.R.B. v. Pack- such an employer lesser appropriate, misconduct is 89 S.Ct. discussing (1969). reemphasize, is L.Ed.2d 547 After we should there where generally bargaining showing propriety point also a of a at one ease, remedy 8(a) (5) majority; order as a for a re- had a such a § course, effectuating of fusal ascertainable where an independent employee prac- free im- committed choiсe becomes as unfair labor portant goal holding deterring employer tices which of a a made the fashioning remedy unlikely fair election a or misbehavior. which have then, discretion, fact in the exercise of undermined a its union’s properly aside, caused an election Board can take into con- to be set 610-613, 1938-1939, U.S. at sideration the extensiveness of an em- at ployer’s unfair Court said: in terms past condi- effect on election considering “Before whether tions and the likelihood of their re- bargaining appropriately orders were currence in the future. If the Board cases, entered in these we sum- erasing possibility finds that go marize the factors that into a such past practices the ensuring effects and of Despite determination. оur reversal (or a fair election a fair re- of the Fourth Circuit below Nos. run) by use of traditional reme- major 573 and 691 issues, on all dies, though present, slight disagreement actual area of between express- sentiment once position our here and that of the balance, through would, ed cards large prac- Fourth Circuit is not as a bargaining protected be better a refusing tical matter. While to vali- order, then an order should is- general date bargaining use of a * * * sue. order in cards, reliance on the Fourth emphasize Circuit open pos- “We that under nevertheless left sibility power imposing Board’s remedial is still or- der, category a third of minor or less ex inquiry without need into ma- jority which, status tensive unfair labor on the basis of cards or otherwise, impact ‘exceptional’ because their minimal cases mark- by ‘outrageous’ machinery, ed the election not sus ‘pervasive’ will is, practices. fair labor tain a There order. Such an order per says, appropriate the Board se rule remedy be an no practice those practices, commission of will noted, the court automatically result of ‘such a § nature that their of an order coercive violation and the issuance effects cannot be eliminated supra.” bargain. Brothers, application See Aaron of traditional reme- dies, 613-615, with the 395 U.S. at result that a fair and re- 2 at 1940. * * * liable election cannot be had.’ “The holding effect (the of our here Court noted that in Sinclair approve is Circuit) the Board’s use of the the First the Board exercise оf tlie choice 2. secret ballot rather than resort to a questionable count of cards.” at 340. current finding, undisturbed left had made phrase required employ- time it to Appeals,
the Court employer’s good bad reprisal terms of an or coercive threats of er’s ** *, however, 8(a) (5) faith doubts even absence puts precise analysis violation, the Board now would have employed below, necessary forth and we repair unlawful prop- these therefore remand cases there- effect of those threats. findings.” er 395 U.S. at S. make the determi- fore did not have to Ct. at sit- nation called for in the intermediate (now usually the “second called uation remand, On filed with category”); e., i. risks hearing, for further a motion might possi- not be fair rerun brief- further evidence and disrеgard great de- too ble were oppor- ing. alleged it had had no already expressed sires of tunity argue before the brief *4 through the The Court further cards. opinion of the new created the issue in and the other noted that General' Steel Gissel; offer- the and Court Circuit, cases from the Fourth the change prove of ed to was a “that there finding not made a had similar Respondents ownership of of these and been have neces- would persons responsible conduct for the sary in the of an unlawful re- absence relations, of labor owners and new bargain. to had it fusal Nor made a persons responsible rela- and for labor finding though that, even traditional dealing to with tions were accustomed might fair remedies be able ensure a organized hostility to labor and no election, insufficient indica- or reason the union involved (or tion that an rerun in Gen- recognize rights to do than to otherwise Steel) definitely a more eral would Act.” as established of reliable test desires granting all The issued notice than card count taken before the un- parties file statements practices labor The fair occurred. Court position respect the matters with also noted that had ruled we General raised the Court’s remand. that available remedies short of a Steel reiterating position replied, set Steel guarantee could fair motion, stating greater out its election.3 The Court said: prove. The detail the offered to facts «-» * * however, grant refused, hear- possible think it We ing might at- Steel which General requisite implicit tempt proffered prove facts. in the Board’s below to issue decisions “Supplemental Board filed a Decision” (and to orders set aside case,4 reciting history of Steel); the election in General and we stating: clearly inappropriate think it for the “Having this case in contrary reexamined
court below
make
* *
light
guidelines,
finding
re-
we
the Gissel
its
*.
own
Because
Union;
suggesting
un-
3. The
for
referred to footnote 3 in our
might
opinion,
hurt
business
former
set
footnote 1
out as
here-
ionization
jobs
to ob-
more difficult
make new
in.
employees
tain; warning
strikes
consequences
economic
and other dire
4. The Board said:
win
11, 1966,
were to
if the Union
would result
“In its Decision of March
that,
election;
asserting
al-
Respondent
the Board found that
negotiate
though
Act,
have
8(a)
(1)
violated
Sеction
Re-
won
Union
both before
after
Union’s de-
endlessly
negotiate
spondent
by engaging
recognition,
could
mand for
in co-
any agree-
sign
employees
interrogation
ercive
con-
Section
activities;
cerning
ment. With
threaten-
8(a)
allegation,
found
(5)
discharge
engag-
ing
with
voting
obtained
the Union
ing
in such
activities
origi-
remedy provided
therefor
earlier conclusion that
affirm our
(5),
Respondent
nal Decision and Order.”
violated Section
good-
Respondent
lacked a
not because
similar
This action
the Board was
faith doubt
the Union’s
practically
to its
all
action
status when it
refused
Union’s
cases remanded as a result
Gissel.
bargaining request,
its
but because
unwillingness
apparent
of the Board
refusal
Union
seriously
questions
to consider
the new
engaging
camрaign
while
in its
sharply criti
raised
Gissel has
to undermine
Sys
cized.
v. American Cable
among
employees.”
Union’s
tems,
448,
(5
Inc.,
446, at
427 F.2d
denied,
rehearing
Cir.
en banc
summarizing
briefly
After
the Gissel
(1970),
denied, 400
1355 «* * jn thjg connection admittedly superior pense may to take desirable find it de Board process to of the method evidence with sentiment, additional employee termine turnover, Amer- Judge see NLRB v. 1918, was, 603, 89 S.Ct. at supra, Systems, Inc., F. ‘litany, Cable ican Goldberg’s apt phrase, to ause Judge dissent of at 448 and the 2d reciting without rote conclusions NLRB, su- Inc. v. McCree Ameri explication,’ NLRB v. factual 965-966, or other pra, Inc., F.2d Systems, F.2d can Cable seem that would matters —a course denied, (5 Cir.), cert. light appropriate particularly 27 L.Ed.2d tried on the ba- fact that the (1970).” 901.6 F.2d legal different of a standard sis usurp reviewing should not A court applied.” F.2d at 905. that now Board; it should functions of the but see has done and review what the of the events General Steel Some arbitrarily. not act the Board does sought prove on remand occurred if the its function A court cannot fulfill prior before to the first facts find the relevant does not They developed Board. were give fair statement the court time, record at particular that a the reason concludes employ inquiry an about the relevant appropriate. Here the good rejection action er’s faith his permit inquiry into declined even proffered card The count. govern its deci- the facts which should those Court’s decision Gissel has made parties, controlling. sion. facts relevant union, employees the un- who want or not of events Whether subsе not want ion and the who do quent original decision of the to the union, to a are entitled full considered, party Board should be each facts law consideration and the right should have the evi supplemental deci- dence, Board. cross-examine the other side’s wit *6 in this not indicate that sion case does argue questions and the nesses given. such consideration was Supreme the has stated con Court now trol the case.7 Stencils, supra, In General the Second bargaining a the Circuit Whether at such vacated the portion Board should receive evidence of events that of the case remanded original pre after the decision to the Board for Board’s further question. a more rec- sents difficult We conclusions. The Court said: delegate oрinion 6. The Second business often to Circuit continued: its author- “ * * * ity Despite panels. Failing to three-member Board’s aver- that, explain utilizing rule-making powers sion to its Board should in each just impracticability and the case considers conceded what to have framing every precluded why, that would fair election and rule cover possible employer respects miscon- in what the case from variation of differs duct, opposite this others where it has reached an is a situation where Profes- ” * * * proposal to sor Davis’ of a rule ‘limited conclusion. 438 F.2d at resolving hypothetical cases, one or more generalizing,’ without would reveal thought suggest least 7. The Board did not that the mo- some of adequate- processes unions, employers, hearing did not аnd re- for further viewing courts, bring ly about which General Steel state facts certainty uniformity prove. degree called on the The Board wished below, parties position” that, appear “statements of as will does not seem submit Failing issues, not and did attained. opinion by question adequacy the full there could in its decision illuminating how meant General statement submitted Board authority Gissel-given apply simply on decided its Steel. —a important original hearing. particularly for an taken at course press agency is forced 1356 ognize importance principles case had .be remanded to findings. Katz, stated in 736, further We U.S. think N.L.R.B. v. 1107, (1962), 82 S.Ct. L.Ed.2d remand Board should have B.,
and Franks Bros. Co. v. N. L. R.
taken the
to consider the
existing
88 L.Ed.
then
situation at American
(1944),
and reiterated in
Cable
determine whether
elec-
atmosphere
L.Ed.2d
toral
still
547—
was
so con-
employer
that an
be allowed
taminated
order was
wrongful
justified.”
profit
his
then
own
refusal
at 448.
bargain.
hand,
pri-
to
mary
On the other
We do not intimate that
other cir-
purpose of a
order is
cumstances
remand should
punitive;
rights
protect
it is to
happened
evidence of
receive
what
employees,
that their
to insure
original
since decision.
In
Supreme
wishes will
carried
out.
case, however,
was
recognized
fair
successful in this
his attack on
Court in
usually
way
election
best
to deter-
bargaining order;
employees.
mine the wishes of the
Court did not hold
Steel
ease,
category case,
In this
as in
was a
American Cable
first
it did
supra,
Systems,
Sinclair;
case of
refused
the Court remand-
findings”.
consider evidence
ed
offered
this case “for
Com-
pany
ought
that later events had made a fair
these circumstances
possible.
occurring
inquiry
election
to limit
Fifth Circuit
to events
prior
said:
to the first unfair labor
hearing,
proof
“
but should receive
*
**
The Board’s
refusal
occurring up
material fact
to the
date
changes occurring
consider these
hearing bearing upon
the new
a determi-
intervening years
apparently
was
nation
or not
predicated
opinion
on the
of the Ninth
could be held.8
Co.,
Circuit in NLRB v. L. B. Foster
We, therefore, remand this case to the
Cir., 1969,
made enfоrcement of the inequitable. The court refused HAYNSWORTH, Judge (con- Chief changes to consider those and enforced curring) : *7 orig- the order based on join Judge opinion, I Thomsen in his findings. inal ever, case, The Foster how- dissenting Judge opinion but the of Win- distinguishable because al- prompts ter an additional comment. though it was decided after Gissel it fully accept I did light not involve the decisions of a remand in the of Sixth, Circuits,1 upon that findings. and case to Seventh Ninth the Board for additional They In which our Brother Winter relies. instant case a dif- dealt gaining ferent situation with contention that obtains. The bar- original orders be inadequate should not enforced teachings employee occurring der because of turnover of Gissel and the employee remand, light 8. sidered the Board More than turnover is involved principles Gissel, quoted proffer prove of stated in here. There was a a com- plete change ownership manage- above. departure resig- ment awith resultant Cir., discharge N.L.R.B., nation, demotion, per- or of the Inc. petrators Corporation, 963; practices. of the unfair N.L.R.B. Kostel The change, Cir., 347; v. L. B. whether effected F.2d before or after practice hearing, Company, Cir., the unfair labor F.2d 1. material- Foster ly situation, altered the should be con- controversy prove charged should neither unfair factual of the after commission consuming. nor difficult time contention practices. It was a labor dealt, and Board which with however, prof- importantly, More Foster, G.P.D., and Kos- Inc. in L. B. highly facts are rele- fered much more Corporation had not even there tel inquiry. The de- vant to the Gissel pro- point in the attempt to raise parture oppressors from of all of the old ceedings the Board. before inevitably affect scene would here a fresh was that we If all of of the sense coercion duration turnover, an or- of contention practices had created. unfair labor enforcing der considers, as it must When If me no hesitation. would occasion employee under of further the likelihood enough to alone was turnover hardly could unfair labor deny aof enforcement significance greater anything than of generally, case, employers, in the usual departure oppressive man- of the old provided an incentive with agement and of new the substitution proceedings such turn- prolong until management supervisory staff with Moreover, if em- had occurred. over history dealing very different with the usual ployee relevant in turnover organizations. labor might litigation case, matter well of the compelling In the adminis- absence of controversy factual involve extensive ought reason, not to trative employment possible relation over the deprive ap- itself to unfair labor terminations praise prospects uncharged. charged An administra- by looking at the scene at time of generally foreclose tive rule which would arbitrary without an limita- tangential litigation con- factual murkier view available as troversies, potential run with a the last of the commission of time huge may justified. proportions, well be charged practice. unfair labor Ordi- primarily with arises Here the issue narily that as of the time view should be respect once sim- a matter is at hearing.2 practice unfair labor pler The far more relevant. usual should at change ployer prove a offered to own- discretionary pow- least have substantial ership plant de- and the resultant hearings ers to decline to order further parture scene of the former from the changing circumstances president and all officials su- other subsequent to the unfair pervisors involved who had been hearing. spe- This cases is one practices. cifically for find- remanded to the Board prove also offered to the new man- ings under new Gissel standard as agement history peaceful had a Court, laid down how- amicable rеlations with unions. ever, case, such a the stand- when proffer unlikely changed is most ard This call after the Board’s initial de- inquiry. cision, why for an extended factual I can see no reason may ignore any factual assertions well even be event or circumstance controverted, fact-finding enlighten controverted. If which would process *8 inquiry unlike into the circumstances of under the new standards wheth- many employment terminations, evidence er or not those occurred events before tending prove disprove practice to the asserted or after the initial unfair labor very hearing. facts call should for no more than a In the usual case Board’s hearing, any view, practical matter, short and the resolution as a must be change Apparently management departure president in and of the former in practice transcript. developed before occurred the unfair labor These were not hearing, refer- there are incidental had no relevance to the criteria things resignation governed ences to such as the which then decision. Board’s posed time of the labor closed to unfair or had hearing, in case the express this their desires specifically representation. alleged, directed to take was as to was as newly therefrom, new look to answer the relevant that conclusion there was doing and, nothing so, questions, prevent factual it conduct of a fair ought open any evidence record to and re-run election. potential which has relevance tо those majority requires Since General factual issues. granted reopen motion to Steel’s quarrel entirety, I thus no requires the cases with and thus upon relies, which the dissent but those consideration of additional evidence of hearing, decisions do reach this case. events as well before after, my statement of views re- quires period that I consider of time Judge each WINTER, (dissenting): Circuit separately. majority opinion requires The reopen Board to record this — —I and to receive additional evidence of regard occurring to evidence of With events events both after before and prior hearing, hearings to the initial General the findings and then to make new position Steel’s motion and statement of and reconsider I its decision. eloquently evidenсe, was think silent as to what the Board’s order be en- hearing, available but not forced adduced on the record. gained had new because relevance question reopening arose in Gissel, the decision in or how cross- way: this Gissel, we remanded after When any particular examination of witness moved a hear- General Steel that differently would have been if conducted ing to receive further be held. the rules established in Gissel had been (General parties The Board invited the reopen in effect. The Board declined Steel, Counsel) General the record hearing. to conduct further position file statements with decision, supplemental In its it to the responded, issues remand. General Steel recited, however, had that General Steel alia, аsserting (a) inter reopen proceedings, moved and it previous that the Board had not at the (the Board) had considered General pertinent received evidence together position, Steel’s statement of (b) the issues created under record, concluding with the entire that, event, been a had bargaining. change ownership of General Steel (precisely question alleged), I do it when is not duty reopen the record receive new owners were accustomed to deal- organized additional evidence on remand when an intervening labor and had no hos- tility case, court decision of a renders to the union involved in the among relevant that which before that there supervisors was known had been a turnover but not then adduced not rele- supervisors because certain previously then who had vant under the rules law. But committed unfair longer I not fault Board’s employed action no rules, or status, nonsupervisory case. C.F.R. been demoted to 102.48(d) (1), specific mo- president the former “[a] reopen Steel, tion to shall state who record was connected with sought briefly most additional evidence of the unfair labor adduced, why presented sold his interest previously, employ, adduced left its that there had credited, require a different re- turnover of out *9 me, regu- original To this is of sult.” a reasonable 207 of the of the members regulates before the lation. employed, unit were still substantially same mariner Board new ex- not been
1359 563, Inc., regulated practice Congress Mills, be- Mexia Textile 339 U.S. that. Act, 826, 833, (1950); 29 U.S. L.Ed. 10 of the 70 S.Ct. fore Section us. 702, NLRB, 160(e), applica- provides an Franks Co. Bros. v. 321 U.S. C.A. § 817, (1944); adduce additional L.Ed. to 64 S.Ct. tion to us leave 512, Co., to satisfaction NLRB v. “shall show the P. Lorillard 314 U.S. evidence 397, (1942) (per evidence additional 86 L.Ed. that such of court curiam). general it were reason- Under the rule that there is material grounds to adduce a Board’s failure would follow events after able (except before in the final decision volun- such evidence * * order) tary compliance not enter- full We would validity proffered evi- if tain such a motion would be immaterial to the not described with reasonable the order and to dence were the correctness particularity, obvious reason for the enforcement. such evidence Since immaterial, materiality in a reopening could not be dеtermined not be required. vacuum. me, more, it to No seems establish- cited authorities required reopen to a record general quoted rule bur- the unknown. The Board’s receive Franks statement that Court’s wished own, adjudication, too like is den of great our prevent employers profiting from hearings require hold wrongful from their own to bar- refusals likely productive. In are not to be
which
gain.
610-611, 89 S.Ct.
395 U.S. at
essence,
require a
the Board’s rules
is
L.Ed.2d
Even if Gissel
showing
materiality
condition
prop-
not
considered
broad
precedent
reopening.
post-hearing
osition that evidence
carry
It advanced
failed to
that burden.
enforcement, it
immaterial
events
why
indisputable
an
reason
undis-
proposi-
at least
establishes
narrower
previously
not
closed
offered,
events,
evidence
post-hearing
evidence of
evi-
it failed to describe the
employer’s
either under the
which were
enough particularity to en-
dence with
may
or
have resulted
control which
determine its relevance
able
wrongdoing,
grounds
his
probative
or
value.
or-
for nonenforcement of
events,
As
Gissel would
der.
answer,
ar-
It is no
as the
require reopening.
gues,
specifically
that the Board did not
part
reopen on
rest this
of its refusal to
apply
of these
I
the rationale
When
assign
ground.
this
Board did not
proffered
to the
cases
different,
reason,
I
inconsistent
changed circumstances,
I conclude
do
think
that we are restricted
reopening.
require
These
should not
we
form in
articulated
reasoning persua-
and their
authorities
sively
(or,
case,
аrticulate) its
in this
failed to
the evidence of
rule out
dealing
merits of
result from
with the
resulting
turnover,
diminution
the motion.
strength.
remain
There
supervisory per-
turnover
demotion
or
— —II
sonnel who committed
occurring
Next is
issue
events
company
the sale
hearing.
after the initial
greater
having
attitude of
an
owners
relations.
in the field of labor
general
realism
rule is
established
well
demo-
involving
the dismissal
employer’s
I would consider
in cases
immaterial,
personnel
good faith,
supervisory
tion of
a bar-
failure to
always
power
gaining
it is
within
because
must be enforced even
supervisors
fire the
of an
its order
the time the Board issued
dirty
If majority.
done
work.
who
the union had lost its
NLRB
employers
considered,
Katz,
evidence must be
n.
prac-
hope
to commit unfair labor
(1962);
could
NLRB
tices
then frustrаte
as
during litigation
bargain-
order
case
ing
over the
tition to enforce
hasty housecleaning,
order. The
reached
to the detriment
same result was
G.P.D.,
NLRB,
finality
proceedings
both
in
Inc. v.
there were in the bar- gaining validly unit. these Of designated the union as their collective-
bargaining representative. Beginning organ-
with the initial union’s efforts continuing through rejection ize and bargain Georgios request up of the union’s Ioannis ASIMAKOPOULOS Asimakopoulos, Petitioners, Maria to the eve of upon barked a course of action which re- sulted in numerous violations of IMMIGRATION AND NATURALIZA Employees coercively SERVICE, inter- Respondent. TION rogated activity; about their union ra- No. 26616. cial discrimination was threatened if the Appeals, United States discharge prevailed; employees Ninth Circuit. they
was threatened if voted for a union July 30, 1971. joined strike; in a were told that good faith even if the union
were certified. These unlawful acts top
were committed General Steel’s supervisory
executive officer as well as
personnel (and specifically who undoubt-
edly correctly) represented that