National Labor Relations Board v. Bata Shoe Company, Inc., United Shoe Workers of America, Afl-Cio, Intervenor

NATIONAL LABOR RELATIONS BOARD, Petitioner, COMPANY, Inc.,

BATA SHOE Respondent. America,

United Shoe Workers of AFL-CIO, Intervenor.

No. 10552.

United Appeals States Court of

Fourth Circuit.

Argued Jan. April 6,

Decided Spencer Bell,

J. Judge, Circuit dis-

sented. Moore, (Ar- Atty., N.L.R.B.,

Elliott Ordman, Counsel, nold Dominick Gen. Manoli, Counsel, L. Mar- Associate Gen. Counsel, Mallet-Prevost, cel Asst. Gen. N.L.R.B., Swiss, Atty., and Marsha E. brief) petitioner. Va., Richmond, Gray, Frederick T. (John Va., Peters, Richmond, Made- O. Balk, City, H. York line New Elbert Coles, Christopher Hoey, York J. New n Christian, City, Williams, Mullen & Selig- Richmond, Va., Seligman & man, City, brief) York for re- New spondent. ballots, against Union, Silard, six Rauh, Jr., ballots Joseph and John L. challenged- forty-one voided, and C., inter- were

Washington, D. on brief 2,583 poten- approximately There were venor. participants. No resolution of tial CRAVEN, BRYAN, BELL and Before challenges since was made Judges. Circuit re- the not sufficient in number to affect sults of election. the Judge: CRAVEN, Circuit Regional Company the The with filed National Labor Relations The timely ob Labor Board Director the petitions of its for enforcement jections in accord with election the Company col- enter into Bata that Shoe pro *Following prescribed Board rules.4 bargaining United Shoe lective elections,5 stipulated consent cedure (here- America, AFL-CIO Workers parte Regional made an ex the Following Union). a consent inafter the objections investigation issued and the 23, 1965, April Union on the election1 report a in which recom written he representative was certified as exclusive Company’s that the mended production em- maintenance and entirety in their and that be overruled Mary- Belcamp, Company’s ployees at the considera Union be certified. After land, plants. Company’s refusal Regional report tion of Director’s judicial bargain enables with the Union Company’s exceptions— and the written incident of the certification review ordering La but without a 8(a) (5) prac- —the labor unfair the Section bor Board a decision which rendered proceeding.2 tice Regional adopted rec Director’s challenged Company a on has forth ommendations reasons set grounds plethora and election report in his and Union certified the certification Com- the Union.3 The bargaining representative exclusive integrity pany generally asserts that unit. Labor by misrep- impaired of the election was deciding questions on the the election campaign resentations in Union litera- necessarily, record under its own written ture, activity part coercive rules, juncture that determined at this adherents, Union and confusion accom- Company’s exceptions “not raise did panying the conduct of the election re substantial issues with material prevented eligible employees from exer- spect or results of the the conduct * * cising improperly their franchise permitted election *.”6 others to vote. The results of the election show Notwithstanding certification

1,082 1,036 ballots cast for and recog- refusal continued its pursuant 1. The election was conducted Regs. 102.69(e), 29 5. NLRB Rules & § “Stipulation upon a for Certification Con- 102.69(c). C.F.R. § sent Election” entered into the Com- 102.69(e) NLRB Rules pany Section and Union. Regulations provides in- in cases 2. The Labor decision in unfair Board’s volving pursuant to Sec- consent elections practice reported labor L.R. case 102.62(b) (Stipulation for Certifica- tion (February R.M. 1364 Upon Election) tion Consent filed, exceptions either “if “Exceptions In the conclusion objec- report challenged ballots or Report Objec- Director’s tions, if or both it be consolidated election, tions” to the appears port, twenty-three Company sets out incidents exceptions such tial and material issues to the conduct or do not raise substan- individually which it maintains necessitate with cumulatively results the elec- “clearly compel” this action. may tion, decide the matter record, may Regs. 102.69(a), or forthwith 4. NLRB Rules & § disposition 102.69(a). case. make other C.F.R. § proceeding. bargain essence Union nize and was, position practice 8(a) labor Trial Examiner’s as stated unfair Section hearing, parties to to at the complaint In its answer was issued.7 alleged, complaint in connection to misconduct addition you it is to do whatever “should seek election, denied that it ought either think complaint to be done material hearing on substantial and misrepresenta- case ** by its ob- law raised of fact and issues as- And would case. affecting jections results to conduct you certi- seek to sume since have of the election and its effect, not in if fication set aside report. Regional Director’s interpos- proceeding fact in this you ing your affirmative defenses that prac- days the unfair labor Two any- proceeding raise in this wish to hearing Company the filed with the tice legitimately thing you might that have the Board a motion to rescind Labor representation proceed- the in raised permit certification, and to reconsider ing.” repre- Company heard in the to be the case, postpone un- to the and sentation Exam- At the invitation of Trial the hearing practice final until fair labor iner, Company outlined counsel for the rep- issues in the determination the objections the various which by tele- Board case. The resentation graphic complaint, set forth in its answer to the “with the motion order denied in the and then some detail reviewed Employer request the to the leave nature of the the was evidence permit issues Trial Examiner the alleged irregular- prepared to offer of Objections Employers and raised in the representa- in ities the conduct the representation Exceptions in [the filed Although Trial Exam- election. the * * * * * to be heard case] subsequently he that iner reiterated proceeding. practice in unfair labor the would all receive evidence advanced Employers con- “[t]he Board found objections support its litigation in a of such issues that tention election, offered complaint proceeding single substantial- testimony would oral witness of but a * * * ly rights prejudice without on a ex- his minor matter.8 The plains its with forward failure come mei’it.” hearing additional evidence (5) hearing 8(a) commenced ground Trial Examiner had that in- Board’s of the Labor a discussion authority no to act with Trial Examiner in which the structions and, therefore, certification in the case had not resolved that conceded he presentation of would additional evidence responsi- question of his of the extent have been futile. bility representation matter and argued suggested decision, him be Trial Examiner’s adopted by parties along issues other Labor Board disposition challenges appears the Board that such as to the If it objections ma- substantial and or or both if it be a consoli- raise issues, may report.” 102.69(e). di- dated the Board 29 C.F.R. § terial factual agent added.) regional (Emphasis or other director rect the to be issue and cause of the Board to 8(a) (5) of the National Labor Section parties notice of hear- on the served provides an Relations Act that it shall hearing ing exceptions before a on said practice employer “to unfair labor * * * Upon officer. close bargain collectively repre- refuse conducting hearing agent hear- sentatives of his pre- ing, shall if directed 158(a) 29 U.S.C.A. § par- pare to be cause served questions report resolving documentary 8. Whether some ties a credibility page containing findings offered is considered infra at recommendations to the fact and bargain, question of a suf- it afforded resolves and if so entitled was 8(a) prac- authority hearing his unfair labor Section ficient proceeding. proceeding Examiner ? tice Trial states his decision process demands Due of law Regulations view, question my be- initial Rules “[i]n Respondent provide where me whether fore the Labor [Company] sufficient issue has offered me and material is a substantial rep validity relating me to conclude of a evidence to cause of fact that a resentation incomplete stage ma- admin acted on erroneous at some conducted findings, objecting question proceeding of the terial and the before the istrative me rights en party’s merit is before affected can be of- Rubber extent that the evidence order. United States forcement by Respondent [Company] (5th fered Cir. F.2d 602 Co. v. findings quires 1967); Mem reconsideration Elec. Lamar (5th bership Corp., Cir. conclusions F.2d 505 Inc., Bakers, 1966); Capital case.” NLRB v. 1965); (3d Inter 351 F.2d 45 goes on to conclude Trial Examiner Workers’ national Ladies’ Garment apart from minor his decision that one (2d NLRB, Cir. F.2d 116 339 Union v. matter, Dry 1964); Laundry & NLRB Ideal v. (10th Cleaning Co., controvert or “adduced no Cir. F.2d 712 330 findings supplement Mfg. Co., 1964); Re- of 314 NLRB v. Joclin gional 1963); (2d Director v. [its] NLRB F.2d 627 Cir. * * * objections (4th of Press, conduct 300 F.2d 671 Lord Baltimore evidence, election, and, 1962); absent such Lumber Poinsett Cir. NLRB v. myself 1955); by (4th Mfg. Co., consider bound con- 221 F.2d 121 Cir. previously by Co., Re- 214 clusions reached Texas Utilities NLRB v. West gional by 1954); (5th Director affirmed NLRB Rules F.2d 732 Cir. certifying rep- Board in Regs. 102.69, the Union as 102.69. & 29 C.F.R. § § Respondent’s Brown, Judge em- resentative To borrow words ployees.” Circuit, writing “it is clear Fifth 8(a) which rest orders §

I. aft crucial factual made determinations parte investigations without ex er presented procedural areWe with a hearing Air NLRB v. stand.” cannot question controlling importance. Was Inc., Petersburg, Prods. of post-election Control St. to a entitled hearing objections 1954). (5th election its F.2d 249 Cir. 335 1950). present Sidran, (5th 9. The case an election involves v. F.2d 671 Cir. 181 pursuant “Stipulation Corp. Contra, Broadcasting e.g., City to a for Certifica- Elm Upon 1955); (2d Election.” NLRB Consent See F.2d 483 Cir. v. 228 Regs. 102.62(b), Co., & Rules 102.62(b). C.F.R. 202 § § 29 Transformer NLRB v. Standard distinguished (6th NLRB This is to be But see F.2d 846 Cir. pursuant “Agree- (8th Mfg. Co., from an election to an F.2d v. Parkhurst 317 513 1963), distinguishing ment for Consent parties agree Election” which Sidran. Cir. “Agreement and chal- cur for Consent Election” lenges Regional pro rently are Labor Board resolved use rulings investigation Director final.” ob whose “shall be vides the “method Regs. 102.62(a), including jections challenges, See NLRB & Rules § 102.62(a). hearing question 29 C.F.R. § We need not whether a should he present post- therewith, case decide whether a held in connection shall be required Regional hearing may following election Director determined type (Empha the latter of consent election. In final.” whose decision shall be added.) such eases the Fifth Circuit has held that sis process requires hearing. due NLRB 826 Cleaning Co., supra; require NLRB Joclin Conversely, v. is no there Co., supra; otherwise, Mfg. Poinsett NLRB v.

ment, constitutional Mfg. Co., supra. hearing sub Lumber in the absence be a crucial de and material issues stantial apparent For reasons which NLRB election termination of whether subsequent in this our discussion from accepted purposes of results are to be opinion,10 Company’s ob we believe the Drug v. Sun certification. See jections 1966); Co., (3d Cir. 359 F.2d report Inc., Serv., Survey NLRB v. Nat’l factual raised material and substantial 1966); (7th NLRB v. Cir. F.2d hearing. which to a issues entitled Petersburg, Air Prods. of St. Control opinion But we also are of the (5th 1964); Inc., Cir. 335 F.2d hearing accorded the sufficient Inc., Sons, NLRB v. Collins’ J. J. 8(a) (5) pro Company in the Section 1964); (7th NLRB v. Cir. F.2d 523 ceeding. Company chose not That the (3d Co., F.2d 89 Clearfield Cheese it did in than more evidence Storage, 1963); NLRB v. O.K. Van Cir. support previous does contentions 1961); (5th Inc., see 297 F.2d 74 opportunity. entitle it another generally Davis, Law Administrative Examiner, above, The Trial as noted ex unnec A 7.01-.07 §§ essary, pressed willingness his all evi receive therefore, all facts if where dence offered to reconsider ex party objecting contended parte findings if the indi new evidence ground is shown “were credited no incomplete them or erro cated to be would warrant the elec neous. Prods. tion.” NLRB Air Control This court is in accord with other cir- Petersburg, Inc., supra, St. rejecting Company’s cuits in conten- Co., 249; Drug accord, at NLRB v. Sun separately tion that is entitled 414; supra, Wil at NLRB v. 359 F.2d litigate representation Ad- issues. (3d kening Mfg. Co., 98, F.2d 100 207 judication (5) 8(a) of in such issues proceedings not, think, does substan- we It burden is settled that tially rights. prejudice company’s party objecting Mfg. is conduct In NLRB v. Poinsett & Lumber representation prove Co. this court stated that ob- of where the a jecting party raising prejudice and sub- material has fairness stantial factual does not have NLRB v. Mattison issues election. opportunity 8(a) 123, 434, Works, heard before the 81 be Mach. 365 U.S. S.Ct. (5) hearing present (1961). “was entitled to 5 L.Ed.2d in And practice hearing objec at unfair evidence labor entitled to a on its be hearing objecting party Trial Examiner to an tions election the 123; Supra, proffer at must make “which evidence Bakers, accord, Capital g., prima e. NLRB v. would warrant facie Inc., supra; Laundry NLRB Ideal v. the election.” NLRB v. O.K. Van Dry 75; Cleaning supra; Storage, Co., & Inc., supra, NLRB v. 297 F.2d at Press, NLRB, supra; The Lord see Baltimore see supra. Rubber United States Co. v. Empire however, Council, determination, Inland Dist. Lumber & Union, Lewiston, Sawmill Idaho Workers factual substantial and material whether Millis, 1316, 697, U.S. S.Ct. issues have been raised so as to neces long (1945). hearing question L.Ed. 1877 ob- So sitate a is of law and jecting (and party ultimately question adver- his election courts. See given saries) opportunity Rubber Co. v. su United States Co., heard, pra; Drug to call and cross-examine those NLRB v. Sun su evidence, Dry Laundry pra; who are the source of Board v. Ideal & discussion, infra, page See, e.g., at - pertinent approach of its evidence We and to the merits fundamentally hearing fully cognizant Congress fair this case own the requirements of due has and satisfies entrusted the Labor Board “with a degree process. establishing wide discretion procedure safeguards necessary argues intervenor Union to insure the fair and free choice urged court, Ex- Trial as it bargaining representatives by em aminer, 8(a) (5) proceeding ployees.” Co., NLRB v. J.A. Tower hearing and consider was a to receive 324, 330, 324, 329 U.S. 91 L. S.Ct. agree, de do not novo. We (1946); accord, Ed. 322 NLRB v. Wa but think hearing the Labor Board that Corp., 226, termann 206, S. S. 309 U.S. on to the conduct S.Ct. 84 L.Ed. 704 How findings of elections the ever, as has been said the Seventh Regional Director, here embodied Circuit, Objections,” “Report his will prima against “sufficient which “There is no conflict facie or contradiction consider adduced at the evidence between the substantial evidence rule reproved [sic] need not be scope determinative of review what, might pro- otherwise become principle and the whereunder hearings.” tracted To hold otherwise Board is entrusted with wide discre- protracted delay would invite cer- establishing procedures tion in process.11 tification safeguards necessary to insure fair bargaining rep- and free choice

II. resentatives as enunciated National turn to a We now consideration of the Labor Relations Board v. A. J. Tower record, Co., 1946, 324, 330, facts of those de include 329 U.S. 67 S.Ct. veloped practice pro unfair labor 91 L.Ed. 322. do not These rules ceeding differing and in Director’s conflict spheres affect because Objections” “Report election,12 activity. Board’s wide promulga- determine whether Labor Board’s discretion lies in the initial regulations, certification of the Union and conse of rules and while quent finding 8(a) violation court exercises its duties in re- viewing supported involving on facts applica- based sub decisions applica stantial and on tion of the the Board’s rules. re- Judicial legal tion of correct standards. We view cases these is not concerned deny think not pol- and enforcement. with the wisdom of the Board’s implicit Congress provided 9(d) in the Act “[I]t [Labor] is has in Section questions preliminary Act, that to the estab of the National as Labor Relations bargaining relationship amended, 159(d): be lishment of U.S.C.A. 29 § ** expeditiously “(d) resolved Whenever an order of Inc., Storage, supra, pursuant 10(c) v. O.K. Van IT. made is section based importance expeditious part upon 2d at 76. The whole or facts certified ly questions dealing following investigation pursuant the certifica process compounded by represen- (c) [providing is the sheer subsection number of elections- con certification] tation elections of this and petition ducted the Board. The con section and there is a for the 7,974 during order, ducted such elections enforcement or review of such year. Experience 1966 calendar shows such certification and the record of such objections approximately investigation that are filed shall be included in the percent transcript required nine of the elections and some of the entire record percent 10(e) seventeen in which ob those filed section under or 10 jections (f), thereupon filed are are set and the decree of the thirty percent enforcing, modifying, Board. In over of the re court elections, part run results differ from aside in whole or in original Pollitt, those in the election. See the Board shall be made and entered Study, pleadings, pro- testimony, NLRB Re-Run Elections: A and (1963). ceedings transcript.” N.C.L.Rev. 209 set forth in such ** icy Board. whether the Labor Notwithstand- must determine but mitigating ing supports specific finding, find- this a whole record as ings thought respecting com- conditions were sufficient to conclusions rules, ject challenge pliance policies, of the fairness mitigating regulations promulgated by the Board. election. The circumstances experience Corp. F.2d 224 of the enumerated Company employees were Celanese (7th 1961) had been who elections, through a of NLRB number Company’s principal The 1963; including one in December may divid- the conduct of the election Company’s employees of to its letter relating broadly those between ed February 4, asserting that campaign involv- and those literature trying Union was to “mislead” ing procedural irregularities. The Com- believing into tied into is somehow pany argues first and not- the ing States Government United material should because of be set aside and that this is “untrue” misrepresentations literature in Union rejected “specifically all Government during pre- pre-election period which election;” the Union’s claims last making employees from a “free vented Company opportunity the further for a Corp., choice.” See General Shoe 10; reply to the Union’s letter of March N.L.R.B. 126-27 pertinent fact state- Company points to mate- Union The on in Union ments literature distributed concerning of the rials role Govern- April 22 and raised no new issues which were ment Union’s behalf addition which those February 3, on March distributed April 22, responded February 4 or could on April 23, day of responded subsequently have Typical made of the statements election. do elected to so. following April 22: on distributed singles The also out a Union asked if “Some workers have any days April 20, leaflet two distributed they they now will lose benefits leaflet, election. before the the union! have if vote You” and is entitled Bata Cheats “How pro- is NO! Our Government answer Stop Cheat- closes with Yes “Vote tects benefits the workers’ ing,” compares what described ne- now in effect. Your Union will ways the “Bata” “Union contract” gotiate to add to these benefits!” computing piece compensation Bata, any asks rate workers and whether Report on Ob- Director’s figured worker knows how overtime is jections, recommendations and rea- Saturdays. soning adopted in which were literature maintains that this “mate- Labor found these merely misrepresentations misrepresentations contained rial material employees. function artless statements of the which mislead But gained 13. Other statements included: union “are members Benefits prom- company Union benefits “achieved members know and more than whims * * * through They they their union are real ises. are because away forgotten, cannot be or have chiseled union contained contracts they spelled company signed by in union because are out the un- and backing backing contracts which have S. Gov- ion with the the U. strongest (March 10). U. and S. Government ernment.” country. “They shoe workers union know between the difference * * * you suggest sign They promises [W]e union contract. and a yours [authorization card] immedi- know —that mail Bata workers know —as ately. promises Company TI-IE SOONER DO —THE made an elec- YOU nothing they SOONER AND UNCLE SAM mean unless are con- USWA guaran- CAN GO TO YOU.” in a WORK FOR tained union contract (February 3). by the United teed Government of (April 23). States.”

829 Regional found that Com- Director are made an constitute interference pany adequate opportunity choice, had which with free but false when misrepresentation respond any statements made which are constitute possessed compre- choice, addition the most interference with free presented against knowledge bargaining representative, of the facts hensive Way”. Company, The how- as “Bata’s ever, election Mfg. set should aside.” Anchor be NLRB, 301, in its failed to discuss this leaflet Co. v. 300 F.2d 303 newspaper published April (5th 22 on and de- Cir. Misconduct must entirely propaganda. prejudiced voted to anti-Union shown to have the fairness Moreover, Regional found Director election. v. Mattison See employer’spro- Works, supra. that “because most of the Mach. piece workers, duction employees policies of the Labor Board The would in an themselves ex- implement princi are well suited to this position cellent falsity truth or evaluate ple. dis Election results are not to be Way”. Regional of “Bata’s challenged mis turbed when because Director also concluded that on the facts representations campaign propaganda regarding before him the statements “(1) unless has been a material way misrepresenta- Union’s were misrepresentation fact, (2) mis tions. party from a who comes knowledge special in- labels untrue and in an au had or was flammatory charge position first made in true know the thoritative April facts, party Union 8 leaflet of Com- other suffi no pany flooding plant Jap- opportunity misrep the charge cient to correct the repeated anese insoles. The resentations before election.” Cel April 224, Corp. in Union literature issued 14 and anese 291 F.2d v. 20, (7th community 1961); and was in a mentioned Cir. NLRB v. Bonnie see newspaper April Enterprises, 712, (4th Inc., on 22. The article reasoned, however, 1965); Annot., 3 A.L.R.3d considering (1965); without allegation Union’s cf. Linn United Plant Guard whether the 657, true, Workers, 53, 60, U.S. S.Ct. generally charge (1966); “could and in 15 Bok, fact did refute this L.Ed.2d 582 see April Regulation Campaign 14, on 9 and Tac 1965.” The newspaper April Representation on tics in characterized Elections Under charges April Act, Union’s on 8 as National Labor Relations “deliberate Fuchs, lies,” (1964); Company employees assured that Harv.L.Rev. 82-92 Propaganda Japanese Campaign & imported Pre-election insoles testing purposes Bata National Activities Labor Before Com.L. announced Relations 4 B.C.Ind. & officers $1,000.00 would Rev. 485 contribute Blood Maryland Bank of support if Union could Company’s challenge to the con- its claim. A letter from the tent of a leaflet distributed the Union Company president employees April election, April 22, pre- the eve 14 called their attention to the fact that important sents the most attack on the support the Union had failed to integrity proceeding. This leaf- charge and, therefore, pay should itself Dolezal, let was addressed Mr. Com- $1,000.00 Blood Bank. pany president, part: stated in your quarrel “In York union New contracts We do not your attorneys Seligman Regional conclusions of Director or Seligman participated respect Labor for Board in some of the to their treat following companies, shoe ment of benefits the literature discussed above. applied are in effect: We believe Board has correct “* * * ly applicable principles. true [“Union benefits” pension wage rule is not health, “that when false statements “Bata” placed by Com- colum- contract in evidence in a are contrasted benefits pany “did not reflect all presentation] the benefits nar ** * by its Union in claimed DOLEZAL, “THEREFORE, MR. leaflet. AT- PRICED HIGH YOUR SINCE TORNEYS, SE- AND SELIGMAN important “Union” health most LIGMAN, NEW THESE HAVE all union benefit listed was “Clinic—For AGREEMENTS, UNION YORK dependents: free members and Includes AND SHOW BE FAIR NOT WHY diagnosis drugs— doctor—free —free BATA EMPLOYEES?” THEM TO ignored X-ray, Board free etc.” The added.) (Italics dependents that medical benefits of free generally urges Company this court in York did not before New extend knew, or leaflet in this clinical services. The Board listed “benefits” that the representa- large misrepresentations known, part should that this in have substantially agree tion was because incorrect fact. We objection Company Company relates at the the 8(a) in evidence offered the extent major agreement (5) proceeding out as set those benefits persuasive. providing employee Com- not limited clinical benefits Bata dependents may presumed employees in this New York pany in knowledge agreement fur- sufficient locals.14 The same was have instance Regional not to be so as both the own work conditions nished Director their materially Company and misled. the Union.15 agree However, we unable any opinion misrepresentation In our “[i]n list of Board that benefits respect fact to medical benefits your your at- New York contracts which ma- York contracts would be New Seligman partici- torneys Seligman and con- of vital this is a matter terial —for companies pated for of the shoe some Especially ordinary cern to the worker. « * * a material n0-t constitute adjacent in an is this so if as claimed misrepresentation. so We this is believe column in leaflet the the same assuming arguendo, as the even no then “had such clinic concluded, not reference is Moreover, was leaflet because the agree- contracts but labor Bata-Union election, distributed the eve companies with the Union ments other time for the Com- insufficient there was spe- York. The Board itself in New reply.16 cifically pertinent pany an effective found that at least one to make employers transcript Plan”, contributed to which bargaining their collective shows reason of the Trial Examiner below however, reliance, agreements. hear- This after the counsel provides ing way certain the clause and after erroneous since was well under surgical clinical—services. free exhibits of General Counsel had been —not agreement, “yes” same asked A clause when second ceived answered Examiner, respect to the Boro out “With set to the spe- report, Agreement you Regional Director’s wish to Medical Center ** fifty pay cifically requires dependents put This here diag- adequate proffer regular percent for clinic fee of evidence under any procedure Labor for the Counsel modern code of civil nostic services. pro- dispute accuracy of should suffice an administrative Board does ceeding. this clause. accuracy question adopted of the the decision 16. The The Labor repre- Regional con- made in this leaflet Director that the statements cretely excep- Company’s serv- sentation in ices gional to free medical raised Report “substantially Director’s correct”. The Re- tions on Objections making relied in this find- and entitled agree- litigate question ing entirely the Section on a clause from the hearing. 8(a) (5) ment the Boro Medical Center between and the New York “Welfare Union’s Furthermore, election under standards: there asserts its own convey sought misrepresentation to to em- was material of fact leaflet by party posi- impression ployees in authoritative made an false tion to in the Union know the truth circumstances had contracts with Indeed, prevented reply prior in- which New York. effective in to construc- the election. That all New York sists that “the reasonable health, superior placed that Union contracts contain tion that can be it—is pension wage company benefits, has contracts matters [favorable] importance employees, in York.” La- and that Bata Union New found, however, organized in has bor Board ref- contracts with units “your” York union New which afford workers there erence contracts “is vaguely greater substantially ‘inartistieally than en- worst worded benefits joyed by unorganized Maryland subject interpretations,’ to different em- ployees representations are both and will not representation a mis- suffice establish ** may substantially prejudice when false fact suf- Company. ficient set the election. When made without ade- aside quate by for time answer ad- one’s agree We are inclined versary, where as few as three votes can impact in view of this result,18 alter the election such state- language employee,17 Bata al- ments constitute interference with though subsequent language in the leaf- employee free choice. Labor Board’s admittedly injects ambiguity. let some contrary present, conclusion to the accept position If we Board supported by case is not substantial evi- your “by that way was used in this context dence. designating class” then language implies used that all New York Ill contracts with Union contain Aside from our decision that the Union listed benefits. Board found aas April preju- literature distributed and, therefore, fact that this is not true election, diced the ir- fairness theory even under the Board’s regularities procedure in election caused would misrepresentation be a material agents, substantial omissions Board of fact. See NLRB v. Bonnie Enter- themselves; responsible balloting prises, Inc., supra. sufficiently compel serious to invalida- We conclude that the Labor tion of the results.19 The case in not erred clearly agents is one where “the Board Company's position “your” 17. The marized in Ms reasonably report: understood to refer to the Company’s New York contracts “election conditions were such that a strengthened preceding the use in the eligibles number of sufficient affect paragraph you of the leaflet of five times the outcome of the election were de- addressing Company president voting ineligibles terred from were- your possessive pronoun conjunc- as a permitted by: Inadequate- (1) to vote presi- to refer to the office arrangements processing the num- dent’s office. compounded by ber of voters involved weather; (2) Improper inclement con- against 18. The ballots cast the Union add- voting lines; (3) trol of the Erroneous challenged ed to the number of ballots Agents instructions with re- combine to come within five votes of the spect eligibility date; (4) Inade- Company. total rep- In the last quate eligibles notice as to the time- election, resentation conducted Decem- employees must line ber lost Union when the Board vote; Improper delegation of au- found challenged all those who had cast thority to cut off the vot- eligible ballots to vote all had voted ing resulting line and a situation where against the Union. employees who were line in time were Company’s objections 19. The the me- disenfranchised latercomers aspects permitted chanical of the election are sum- to vote. 832 voting employees they from alert ble were deterred have been should when nodded thirty Enterprises, allowed Inc. at others were while least Shoreline and active”. polls (5th NLRB, 933, Cir. after should have 946 vote 262 F.2d

v. along with the 1959). Wh'en considered closed. improperly pre fact that Chenoweth was equal all opportunity for A fair and very voting, in of the vented from view preclud- Company employees to was vote results, opinion it that is our close agent Board actions ed in refus Board abused its discretion21 ing stipulated sponsible for the election. set Cf. aside the election. Shore voting closing publicized hours for Enterprises, F.2d line Inc. 262 v. Board found that P.M. The 5:15 was 933, (5th 1959); NLRB 943-946 Cir. agent in shortly time before Co., F.2d West Texas Utilities charge an- caused an of the election (5th 1954); Cir. NLRB v. Wilk 740-742 plant pub- to be made on nouncement (3d ening Mfg. Co., 207 F.2d 98 Cir. eligible system “that to be lic address employees P.M.” must in line 5:15 be unnecessary agent It is to consider the re- instructed three At 5:15 Company’s objections to the mainder of the at “that the line end anyone if at- the election. We that and that conclude line was closed supported tempted get not sub- them Board’s order in line after such * * - persons stantial should be directed to evidence. agent.” Denied. Enforcement found, however, as “that many employees got Judge on end BRYAN, as ALBERT V. Circuit em- the line” after 5:15 and (concurring specially): “[o]ne get ployee line that he not in states did Clearly, not order should Board’s without until about 6:30 P.M. and voted least, enforced, reasons, at question.” At the time same assigned opinion. It dis- Court’s employee, found at other least one however, ground decision, cards Chenoweth, improperly pre- Frank in- what seems to firmity is a fundamental me voting. from in vented Chenoweth was procedure Board’s —the stepped line before 5:15 but off to enter employer opportunity for denial of an was, washroom and he when returned case to be heard decisive issues according op- Board, to the “denied the they depriva- before decided. This challenged portunity to cast even a ballot me, and, frequently is so tion occurs agent charge.” process should of due that it destructive unequivocally disapproved. agree We finding in elec start with the warranted maladministration of the eligi- highly probable opinion employer’s that here “ob- it made surrounding lie “it must concludes that voters and 20. In addition to confusion Employer closing polls, who furnished of the the Board found that polls eligibility opening list out-of-date with after “soon necessary it transfers.” the instant election departments at time later than release “for the circuit has held that it is This releasing designated posted court, ex- not for this ex- schedule because the lino voters as to ‘whether or not ercise discretion . length. From tended well over 100 feet irregulari set aside for election should be P.M. a number of 10:00 A.M. to 4:15 procedure.’ v. Jesse ties spent an hour line first-shift voters Co., Sausage F.2d Jones receiving Two em- a ballot.” (4th [quoting 1962) NLRB v. from Cir. go ployees stated that did Co., National Plastics Prods. long polls “because the line was too 1949)]. (4th raining.” denies The Board itself responsibility processing the slow justi- procedure cannot be jections The Board’s to to the election analogous practice fied as report” the did of the upon courts motions for recon- to rule pose in truth and material “substantial rehearing pres- without the sideration or respect issues conduct or with presentation parties of the ence or the ex sults of election”. arguments. In court further evidence or parte, hearing, a i. e. without had held rulings pre- such motions and have been Incidentally, otherwise. this decision hearing by issues, ceded a full when the report Region- was founded instantly, Court declares sub- Director, investigation al who made his presently stantial and But material. parte of the ex and overruled chance sole accorded the fully exclusive parte. them ex employer to submit its case heartily agree I the Court hearing Examiner, before some time process “Due of law demands and the after the Board’s determination present Regulations Rules and of the issue. The Examiner was then decide provide Labor Board that where there is right whether the Board had been —a a substantial and material issue fact gun” decision to “under the be made relating validity representa- of a appellate It if an Board. is as court hearing tion election that a be conducted opinion had without rendered an a hear- stage at pro- some of the administrative ing vacating then, it, without had ceeding objecting party’s before the given permission to the unsuccessful rights by can be affected an enforcement litigant to ask court the lower to allow mindful, too, order”. am that there can hearing appel- a and decide whether judicial hearing be no validity as to the election’s ruling late should in turn to stand—this refusal-to-bargain ahead of the appeals re-reviewed court. proceeding; hearing upon I insist party’s rights Curtailment of in an is a hearing only. fair administrative proceeding in man- administrative My departure opinion from the Morgan ner was condemned v. United Court is in its conclusion that since 773, States, 304 58 S.Ct. L.Ed. U.S. company the decision after discussing In the funda- had opportunity present an requisites mental administrative before Examiner, company hearing, particular reference to the thus hearing”. afforded a “sufficient Secretary Agriculture conduct of the “Hearing”, hornbook, presup- Act, under Packers and Stock Yards poses unpre-judged judgment strikingly procedure similar to at issues stake. Otherwise it is an ob- here, Justice said: Chief mockery vious process. pro- of due right hearing embraces “The to a cedure, instantly, just amounted to that. only right evidence but Admittedly, the “substantial and materi- opportunity also a to know reasonable al validity of the election—were issues”— opposing party the claims of the completely finally decided right to meet them. submit long parte, ex before the argument opportunity; implies that of the employer by the Examiner. It may right be but a otherwise bar- put had the Board as brought ren one. Those who are into definitely settled, until prac- the unfair in a contest with the Government tice case came on before the Examiner. quasi-judicial proceeding aimed at company then, for the first entitled control of their activities are time, put allowed evidence about fairly of what the Gov- advised election, only and then before a sub- up- proposes to be heard ernment ordinate of the Board who was thus call- proposals fin- on its it issues its ed superiors’ his review deter- at al 304 U.S. S.Ct. command.” post-decision “hearing” mination. This added.) (Accent at now, erroneously, I think held to be ****** hearing”. “sufficient a clear “Congress, requiring ‘full order. Not was this hear- Board’s process; judicial standards, regard due was irremedi- ing,’ refusal of proce- any able Board’s established under the sense but with —not technical “hearing” hardly require- post-decision dures. A fundamental to those “hearing stage of the fulfills some of the es- ments of fairness which are proceedings” now the Court proceeding demanded process in a sence of due by precedents it and the cites. judicial equity in an a nature. If cause, special trial master or the a prop- consequence “In court cannot a judge permitted plaintiff’s attor- the erly finding an em- enforce an ney findings the to formulate ployer guilty of re- an unwarranted parte evidence, conferred ex bargain union fusal to with a certified them, attorney regarding plaintiff’s appears, it an election if adopted proposals without and then his challenges affecting spect result, op- affording opportunity his an disposed of er- either were ponent contents and to know their roneously as a matter of law objections, present be no there would employer ‘substantial and raised report hesitation in material factual issues’ under having or decree made without as been Regulations hearing and denied a was hearing. requirements fair a * * * seasonably requested. that he in the tak- fairness not exhausted Co., Mfg. N L R B v. Joclin F.2d ing or of evidence but consideration Accord, 1963). 627, (2 631-632 Cir. concluding parts extend to the B, United Co. v. L R States Rubber N beginning procedure as well as to the (5 Cir., 1967). 373 F.2d 602 steps.” at intermediate 304 U.S. and 19-20, process S.Ct. from This withdrawal of due aggravated proceeding in the was expounded, and This same was thesis case of the so- nature applied Board’s to enforce the refusal hearing. company called sufficient contrary passed upon order because a protestations is held to have its forfeited Mfg. procedure, Co. in Russell-Newman of an unfair failed because it (5 F.2d Cir. v. put to that effect before 1966), saying: the Court the Examiner. It is small wonder that company The Examiner process abstained. “Due administrative trial, had not even been directed a conduct- includes fair employer. By telegram the to hear fundamental ed in accordance with * company given merely play applicable principles was “leave fair and request permit” procedural the Trial Examiner standards established * *” (Accent added.) it to be heard. Aside law. from to- this casualness of employer Nor treated in this can an employer, ward interest expedi cavalier fashion score perplexed Examiner himself so as to Rights tion. cannot be sacrificed authority his asked duties he legalized dispatch. Nor it be name argument parties from as to adjudicating tribunal cannot cause he what should do. process. devise a better Cf. Russell- Mfg. NLRB, supra, Co. Newman v. finally True, employer to he invited 980, 984; NLRB Trancoa Chem F.2d v. objections exceptions its reiterate (1 Corp., ical evidence, and to Exam- submit but the iner not sure done of what could be has, it, preponderated found, it if it in favor even When Court company. Nothing of Bata could have game accomplished; been over not but frivolous nevertheless began. disposed parte, reasonable to then the Court Was of ex expect immediately the Examiner to reverse set aside should have employer is cast Yet Board? CORP., Appellant, SHORE BLOCK pursuing judgment for default expectation. APARTMENTS, partner- LAKEVIEW join of the Court’s I result ship composed of William H. Perlman regret it endorses opinion, I but Beryl Perlman, partners, N. procedure. Board’s Corporation, corporation Donrich the State York to do of New authorized Jersey, business in the State of New Judge* BELL, Circuit J. SPENCER Douglas Inc., Company, T. Construction (dissenting): corporation Jersey, of New United colleagues again my invade America, Drazin, Once States Louis M. Douglas peculiarly within Receiver of T. Construction area which think Company, Inc. United States expertise of the Board overthrow America, Intervenor. is, think, they It I result do not like. No. 16155. points quibbling to the two use clearly in have chosen find the Appeals United States Court of representation issue. The error Third Circuit. misrepresented first is that the union Argued Feb. fact union contracts New York May 18, Decided offered clinical the families services union There was no members. evi- dence that this in fact changed certainly vote, position judge

is in than this better opinion

court which has of com-

pany support counsel its conclusion. The second the leaflet is addressed beginning your company “In New

York union contracts” misled the em-

ployees. majority’s opinion specu- lation, going speculate if were long

I would assume that after campaign,

bitter would all company

know whether had in fact signed advantageous contracts with the plants. Finally,

union at other the re-

versal the Board with utterly mechanics of the election is with- justification.

out There was not a scin- persons

tilla of evidence that ex- voting company

cluded from ad- were,

herents. If mistakes justified assuming they

Board was ways.

cut both In NLRB v. Jesse Jones Sausage Co., (4 “*

1962), this court said court,

not this to exercise discretion

toas ‘whether or the election should irregularities proce-

be set aside dure.’ 19,1967. Judge prepared opinion Márch before his death on Bell

Case Details

Case Name: National Labor Relations Board v. Bata Shoe Company, Inc., United Shoe Workers of America, Afl-Cio, Intervenor

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 6, 1967

Citation: 377 F.2d 821

Docket Number: 10552

Court Abbreviation: 4th Cir.