National Labor Relations Board v. South Bay Daily Breeze, 415 F.2d 360

National Labor Relations Board v. South Bay Daily Breeze

415 F.2d 360

9th Cir.

1969

Check Treatment

*1 rеcognize We significant arguably difference between Savings

Community before the case in occurred in the There the fraud

us. loan, while in

ducement practice re occurred fraudulent Nevertheless,

payment. in each case loan, which was transaction was

basic lender deemed bor

made because the good both risk. But bor credit rower poor credit risks turned out rowers misrepresenta

—one because get loan, other because

tions repaying it. Thus was dishonest in each case

it is uncontradicted unpaid which remain

"loans were made part,” seem to us these defaults loss the “immediate cause” in this case fraud

es. The fact that stage in the economic

occurred process a later degree appeal add

to in, Bank’s laments that was done change ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍legally but does not problem

real nature of the Bank’s —a good loan bad. became

Affirmed.

NATIONAL LABOR RELATIONS Petitioner, BOARD, BREEZE, BAY DAILY

SOUTH Respondent.

No. 21949. Appeals States Court of Circuit. Ninth

Aug.

Rehearing Sept. Denied *2 (argued), Joseph Arnold

Lawrence Ordman, Counsel, L. Dominick Gen. Mаnoli, Counsel, Marcel Mal- Assoc. Gen. Counsel, let-Prevost, Law- Asst. Gen. Thesing, Joseph, rence M. J. Richard C., petitioner. Attys., Washington, D. (argued), O’Melveny Myers Charles & Anderson, Bakaly, Jr., Peter M. G. Williams, Brundage Stanley Hack- & H. Cal., respondent. ler, Angeles, Los CARTER, Cir- Before BARNES Judges, BYRNE,* Dis- cuit Senior Judge. trict Judge: BARNES, Circuit pursuant to sec- This case is before us 10(e) Rela- of the National Labor 160(e) Act, tions 29 U.S.C. § our review of orders which authorizes by the Labor Relations issued National petitioned for Board. The against respondent, enforcement Bay Daily Breeze, оf an order is- South reported sued October (along decision) at 160 with the Board’s (1966). N.L.R.B. 1850 daily newspa- Respondent publishes a April, per Torrance, California. In representative an international Newspaper the American Guild met three and dis- advantages of cussed with them the organizing representation. Guild An campaign Fifteen au- followed. obtained, thorization soon representative and the international sent telegram respondent, requesting recognition bargaining agent respondent’s employees. Esti- editorial appro- mates the size of the priate unit at time ranged twenty-two twenty-eight from employees, respondent’s publisher, Curry, expressing Robert doubt that the represented majority Judge, Angeles, California, Byrne, sitting District States Los Senior United M. Hon. William by designation. grant unit, ployees prohibited continuing refused recognition. engage A National Labor Rela- practices in the unfair subsequently tions Board election found to have been committed and from July 20, interfering scheduled other manner with rights employees’ under the Af- Act. interim, rеle- several incidents In the *3 firmatively, respondent was ordered to First, litigation to this occurred. vant bargain upon request. with the Guild hearing before in a Regional Director, appropri- Board’s twenty-five unit was fixed at ate right ployees. Respondent waived its EMPLOYERS’ INTERFERENCE of that determination. seek review challenge Respondent’s finding to the Second, respondent’s super- certain of employees’ it interfered with its questioned visors various con- bargaining agent during free choice cerning pro sympa- or anti-union their pre-election period limited to thies, suggesting times with argument relating that a document specificity pay fol- increases would improperly its conduct was considered the election. were made low Statements Indeed, argument the Board. would by supervisors to the effect there only possible seem to constitute at- “ways” ascertaining sup- were who findings to, tack on the referred ported union, if the union and that clearly support there exists substantial approved, work rules would be respondent’s for the conclusions manipulated persons so could supervisors interrogated gave employees, discharged.1 possi- *In addition, impression of surveillance bility sympa- of a blacklist of union activities, promised post- their union suggested. thizers was benefits, and threatened unpleasant consequences might various election, After the in a resulted supporters. befall union vote,2 tie the Board Guild filed with timely objections respondent’s conduct. The document a memor The Board set aside election and prepared publisher Curry by andum for found had violated pro News Editor Kenneth Johnson. interfering (1) by Act its em with vided the trial examiner and the Board rights ployees’ section 7 to choose highly under persuasive evidence agent freely and with during pre-election refusing coercion, (2) period out attempting interfere resulting order with the employees.3 Guild. The free choice of its basis example, following testimony, schedules; 1. The about routines and his employee given by put split McDon Patricia all we have to do is aon shift, very a conversation be nell with and he couldn’t take that ” Editor, long.’ Record, Kenneth her and News tween vol. at 475. concerning possible Johnson, conse victory: quences newly 13-13, union of a 2. The vote was one hired em- tougher, things ployee apparently having “He said would be been added to be, said, prior if [the and I ‘How could the unit to the election. protected employees] for six would be Regarding employee, example, an election?’ months after get said, ‘Well, reported, the Guild “And he so memorandum [Geittmann, Lori Then know how in. employee,] signs, all the time. We is late “Sees dollar thinks he’s better hours, just change have her and I will and worth more than he impressionable. Is is. morning, lot, her come in at 5 :00 Listens to me a money you long promise be- how it would take last minute know more weigh heavily being from me Lori is late.’ on his fore de- * * * said, you ‘We dismiss her cision “And he could He is the kind worry selling day about after week.’ Jones, said, Bob “When it came to at 71. know an old maid he ‘You what agents (e. challenge g., respondent’s to the state United States v. Mc admis- Guire, 306, 313-314, (2d sibility lies in the memorandum F.2d n. 5 1967), denied, Perry Cir. from Johnson’s cert. fact was taken by employee States, permission without desk (1968)), Gary L.Ed.2d hold the Burdeau Gillis. ing has not been overruled. A recent if admission assume that We Circuit, decision Knoll Seventh evidence was memorandum into Associates, C., T. F.2d 530 Inc. v. F. improper, prejudicial effect is suf its is not inconsistent with preclude enforcement ficient reading our Burdeau. While (at as that order least insofar holding illegally seized findings of inter order to the relates employee admit rights ference with section ted Fourth Amendment viola probative respondent’s employees); *4 tions, that, court the stated un “[t]he likely played force such is disputed evidence dis shows [the significant relatively at least some loyal employee] stole documents resolution of in the trial examiner’s assisting purpose of Commis Nevertheless, questions we before him. prosecution sion counsel in the of respondent, in favor of hold are unable proceeding pending, then and the record of for we do not view admission by the Commission its use shows as error. memorandum gave knowingly ap of the documents Respondent the docu- contends proval employee’s] at act.” Id. [the ment have been excluded 533. is conduct not countenanced This ground in violation it was obtained by Burdeau, where Court rejecting In the Fourth Amendment. of govern pointed to the fact that reference contention, are controlled both present ment action was not in the taki holding by Supreme only Court’s ng.4 574, 476, 65 41 U.S. at S.Ct. 256 squarely point and that Court’s L.Ed. 1048. description judicial protection af- of the Knoll, supra, of In actions judg- our аmendment. In forded government related and the thief were so ment, prerequisite for invocation neither agent government as to make the thief a (proscribed Fourth Amendment long unacceptable and his conduct under government official and conduct standing grounds. Fourth Amendment nature) prosecution of a criminal 310, States, 275 U.S. Gambino v. United present. here ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍137, (1927). The 48 L.Ed. 293 S.Ct. 72 465, McDowell, In 256 U.S. Burdeau v. present significantly case is different. 574, 1048, (1921), the 41 65 L.Ed. S.Ct. showing no There is here in a use criminal Court ruled purpose memorandum was for which the prosecutiоn personal papers stolen in its aid the Board taken private from the individual accused against testimony, respondent; Gillis’ Fourth did not violate the accused’s contrary. fact, 6 R.T. was to the government rights when the Amendment prior document taken way the theft. no involved these election and some time before Although challenged in aft cases decided proceedings In cir- were initiated. holding er v. Unit the Court’s Elkins evidentiary cumstances, least, mere 1437, States, 206, ed 364 80 S.Ct. U.S. use the General Counsel federal outlawed L.Ed.2d illegally pro- obtained use evidence memorandum does not constitute recognized by This distinction tion which established connection be- Knoll, court, supra, stated at 536 tween the Commission and result- Knoll’s which employee] testifying 5, [the “In Prosser’s [to Burdeau] n. contrast ** disloyal against witness Knoll. bar as Commission case at ployee, antithesis [the Bernard Turiel The facts in case are the furnished to telephone agent] by government informa- of those in Burdeau.” [sic] Compare: argues Barnes v. further conduct. even if hibited States, (5th Cir. admission the memorandum 373 F.2d 517 United States, constitutionally Corngold forbidden, United 1967) v. use 1966). such evidence inconsistent with the 367 F.2d National Labor Act. Relations reject re did not if we Even argument stresses the aim of the Act to incompatible spondent’s contention objective peace” foster “industrial —an mandate, we would Burdeau unlikely achieved, to be in- protec constitutional decline invoke sists, management if labor free proceeding was the Board’s pilfer other documents each subject to the standard not one hopе turning up Traditionally, Amendment. Fourth But, practices. course, fair labor applied only where amendment designed Act to achieve industrial “quasi-criminal” sanctions or “criminal” peace only through application of the Municipal might imposed. v. Camara provisions contained therein —not Court, L.Ed.2d 387 U.S. provide broad authorization Plymouth v. (1967); Sedan One 1958 particular and all reforms courts Pennsylvania, 85 S.Ct. 380 U.S. might helpful deem toward end. Boyd (1965); 14 L.Ed.2d 170 employers Nor or “free” States, documents; to steal civil criminal *5 object (1885). of those 29 L.Ed. 746 readily remedies to deal available penalize the com proceedings “is conduct, and we have been against the law.” an offense mission provided persuasive with no evidence 700, 1250. This 85 at 380 U.S. S.Ct. that those be remedies are or will inef- here, crimi neither is not the case fective. involved. procedures nor sanctions nal Respondent Hoosier-Cardinal cites Gault, 1, 87 S.Ct. In re 387 U.S. See suggesting Corp., 67 N.L.R.B. 49 (1967). 1428, The ex 527 18 L.Ed.2d represents a that Board decision appropriate. clusionary is rule not here determination il- evidence obtained supra; Associates, Contra, NLRB Knoll legally should not admitted unfair be Co., 870 F.2d Gas v. Bell Oil & practice proceedings. In Hoosier- 1938). Cardinal, supra, had a union refused allow Board to certain of examine disregard procedural if we Even papers. its an individual Later who was focus consequences, and and its context working secretly organi- a rival labor Amend- applicability Fourth managed secretary- zation be elected “security intended ment in terms treasurer union and allowed a ap- (the the individual to be affordеd” agent by (accompanied repre- Board a court, by proach Knoll’s advocated organization) sentative of find, the rival F.2d at we copies photostatic involving examine and determination, make Bur- initial our papers question. Board held inap- exclusionary is deau, rule copies inadmissible, explaining “to rule is posite. function of the constitutional compel a failure “[i]t better there be guarantee Amendment] the Fourth [of advantage take full of such dubious way by only effective available — opportunities Government, than that removing it.” the incentive people the whole ‘teaches States, U.S. Elkins v. ** example, play its 1437, 1444, 4 L.Ed.2d 80 S.Ct. ignoble part.’ As an administrative excluding logic in (1959). is no There agency having investigating both government from prevent judicial duties, this Board must exact violating constitutional individual’s highest of conduct standards government rights investigating case when in a officers.” 67 N.L. (footnote omitted). R.B. at 55 guilty of such a violation. is not Hoosier-Cardinal, bargain- ployees’ regarding sentiment not at all clear ing agent; widely recоgnized necessarily has sup ra, be it been must that a Board’s secret Board election is far with the viewed as inconsistent agent better Board conceded method. The The Board decision here. policy certain mis- circumstances where of the official aware directly occurred question and was of the union ought reflecting knowingly not to taken as covert involved copying of the endorsement of union in apparently unauthorized signer’s however, agent; sought. Regardless, bargaining as the how- documents ever, thought applied it cir under which that such standard whether satisfactory a card’s must line statement of authorization allow a cumstances accepted cases, representatives con unless union the two be drawn between signer explicitly, here assured the the rule invoked clude — “only mere seem—that used would be where the Board is correct: il for an ly use of evidence accepts makes individuals, “only” rule, private legally On of this basis obtained signa- rejected required Board itself one of the of such evidence exclusion tures, fourteen, leaving majority, by the Act.

standing.5 II prac- policy This is consistent with Supreme recently tice outlined REQUIREMENT TO BARGAIN Packing Co., Court in NLRB v. Gissel challenges secondly Inc., requires order which (June 17, 1969). ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍There L.Ed.2d 547 Its attack it to with the Guild. the Court between the resolved a conflict primarily the contention consists First and Fourth Circuits represented a never of a correctness order based *6 of employees. Fifteen of its editorial on a where card-evidenced bargain- twenty-five employees in the emрloyer unfair has committed de- (as that unit to be practices unit was tending hold- to foreclose the Director) Regional by the termined ing of a first fair election. Court authorizing signed April, cards not the ruled a Board election is them, represent and it is the Guild only open establish to a union to method that the bar- on this foundation obligation, stating bargaining a 89 argues, gaining order rests. employees alia, that certain inter acknowledged superiority “[t]he signed on the basis cards did so who ** process does election conсerning their misrepresentation union thereby cards are mean effect, employees intended that those totally invalid, for an rendered where support a merely for indicate engages disruptive employer in conduct of the record A review Board election. process, support cards be contention. lends only— perhaps the the most notoriously a Authorization cards effective — assuring determining way employee choice.” method for inaccurate employee ployer approach, remedies retain ratified Su and the 5. The Board’s required preme basis of Pack if v. Gissel N.L.R.B. Court Employees peti- (June 17, Inc., ing Co., can card certification. U.S.L.W. they un- infra, if for decertification been criticized (1) (ii). (A) happy. 159(c) § See N.L.R.B. Fourth 29 U.S.C. First and Circuits. employer, Logan Packing Co., no ma- F.2d if convinced there is v. S. S. petition ; jority favoring union, 1967) N.L.R.B. can Cir. 565-566 Co., 442- § 380 F.2d Board for an election. U.S.C. v. S. E. Nichols (1) 1967). (c) (B). (2d We are aware countervailing equities. the em- Both get many effect he wanted to as cards then considered The Court generat- employee as he could and that this show potential confusion card, Company by single-purpose which states ed designates they signer plainly united and that conditions; wanted better cards, pre- representative, the more which is union his promis- He stated that the cards would better. sented a union recruiter who secret, kept part “to all total be but that the be used es that the card will telegram get number held would be sent Court an election.” The Respondent.” Record, 1, at vol. by the “employees bound should be sign they language of what clear deliberately language and Erickson not told that his card would less that clearly any purpose than for a union adherent used other canceled election, securing response an calculated direct with words forget signer told whether signature. election, only language There the card for an above his handing stated, “Yes, nothing an told me that inconsistent in he [Gillis] is employee signer II, says many so a card that words.” testified, represent union to also authorizes the He telling him that and then “I was undecided at that time wheth- get probably first used will good er it was or bad have the Id. at 1936. represent employees, and I teaching before I of the Court didn’t know at that time how wanted With challenges thing us, to vote. turn to an evaluation The whole we proffered validity of in the back made to new me. I remember my certainly being admonition didn’t mindful the Court’s mind that myself want to commit at that time * * * way or And the other for vote. reject rule “[w]e me the card was when he assured employee’s probe requires sub- of an electiоn, why, to call I understood involving an jective motivations then that I later which could decide inquiry.” Id. and unreliable endless way I wanted to Id. at 677. vote.” at 1937. support There is considerable foregoing testimony demon that Erickson’s conclusion strates, believe, Erickson’s rejected test under even *7 accepted should not as es by The apparently applied Board. the tablishing repre that he desired to be the Board trial and examiner by sented the Guild. findings respect Erick- following to with con- We cannot come to the sаme son: respect Gray. clusion with to The Board and card Erickson’s “Gillis solicited adopted following findings of fact Guild, pos- told him about sibility regarding Gray: having represent “Gray’s bargaining card was ployees with authorization collective in Gray solicited had possible Gillis. been Respondent benefits and employed by joining the Guild. member of the Guild they when receive could newspaper. another Gillis told that cards would Erickson He told whereby trying get signatures all that he was bring election about an together bring about an employees secret could vote Guild, through representation by elec- and and determine ballot thought they he all to be that wanted or not tion whether he off that would be better represented the Guild representation, and he commit him- with union Erickson not want did Record, urged sign Gray way that time a card.” other at or the self that vol. at 81. stated Gillis his vote. measure, in Gray’s presents some much sort in inhere any orderly system question adjudication, than Erickson’s and we closer findings, are in viewed think that the above event not determinative.7 them, light Employеe supporting all, is, of the evidence self-determination after objective conclusion that the basic with the consistent the Act. reliably Gray’s a desire indicated card The Board’s order be en will true, representation. for Guild aspects. forced in both its sign Gray intent that his sole stated bringing about an elec aid was to Record, vol. at 747. tion. BYRNE, Judge (dis- Senior District Gray “read the card Board answers senting part): it could used obtain and knew that agree I majority with the representation without part finding of the Board’s decision at 36. tеsti Brief for Petitioner practices by fair reason of inter- apparently mony on which the Board ference with the af- election should be contention, making as relies However, ordering part firmed. follows: respondent bargain should be reversed things “Q. say if Didn’t and a new election ordered. going, they been as had went well The union obtained fifteen au- sitting they down at thorization over the Curry? weekend Mr. table with April 23-25, hearing At be- op- I he showed “A. believe examiner, fore the trial timism, concerned as far as questioned seven cards. those bringing an election. about trial examiner determined that fourteen “Q. knew, you, that Mr. didn’t You Using the cards were valid. just capitulate could Curry could unit, number and the size the trial recognize an elec- the union without examiner concluded that union had tion, you that? didn’t know majority April on thus of that.” I was aware “A. believe could be ordered . 742-43. bargain union. On review respondent questions Thus, the determination while a close regard Gray’s case, the trial examiner presented we cannot made with employees. guess five of conclusion second Board’s accepted Gray’s to establish can be apparently The trial examiner followed support This leaves for the Guild. “only” rule established in the Sixth and is suf of thirteen Circuit. NLRB v. Cumberland Shoe basis, therefore, ficient Corp., F.2d 917. Under that rule compels re order was held that an authorization spondent the Guild.6 valid to unless the show recognize passage of time We employer repre- can show solicitors brought respondent’s conduct about *8 employee sented to “sole” the that the organizational ardor the have cooled “only” signing purpose or in the indeed, may or, in 1965 that existed to was A obtain election. of substantial occurrence have seen the interpretation rule mechanical changes composition of the bar- required unit; the actual gaining made which that but these difficulties campaign con- the has been board’s and force to the is some There continuing specifically prohibited interfered from tention n employees in such the conduct. choice of its the free challenges election, on au- reliance to However, Gissel, supra, 575, 7. See 89 S. ill it. cards becomes thorization 1918, properly been found to Ct. 23 L.Ed.2d 547. the interfering with the Act in have violated “only” findings words or “sole” used and so employ- to other the court modified its rule. In the case ees, reject he did not the cards Inc., Super Cleaners, of NLRB v. Swan employees. 384 F.2d 609 the court majority adhering The of this court explained special no words Gissel, to teaching the the follows necessary and in- properly Cumberland dоctrine and holds valid where had been employee card of Erickson thought conveyed made which accepted not should as es- only purpose the sole and of the card tablishing repre- that he desired had been to an election. obtain sented the Guild. generally has followed those de- Applying recognized test same as the Board cisions what has been applied in rule. the case Ceder and the Board’s Cumberland majority applied of this court in Erick- Subsequent to the Board’s decision in son, employees, the cards of several other case, Supreme the instant Court de particularly Gray, and Cole should also Packing Inc., cided NLRB v. Co. Gissel be invalidated. 395 U.S. 23 L.Ed.2d paramount importance Of in determin- (June 17, 1969). In Gissel the court credibility Gray, Cole but held, among resolving “In the conflict apparently given thought by little approving the circuits favor examiner, Board, trial or the ma- rule, think it Board’s Cumberland jority court, of this is the fact point employees out sufficient clearly shows, entire record and is not language should be bound clеar disputed, original purpose they sign language of what unless that obtaining signatures on the cards was deliberately clearly cancelled bring about an election. words calculated union adherent with disregard signer direct The trial examiner found that even signature.” forget language his above Rinehart, who of the men two (emphasis supplied). The Court further assigned to solicit admonished, agree, however, with “We employees, questioned other when warnings in Levi own language of the told Strauss, L.R. N.L.R.B. No. representative indi- “cards R.M. and n. 7 cate the interested concerning hearing testimony a card they election”, Guild and that want an challenge, trial examiners asked, and when Rinehart was “Did Mr. neglect obligation em to ensure say meeting Schrader that one ployees easy a too free choice signing purposes of the the card was application of mechanical the Cumber repre- have the Guild as a land Rule.” election?”, sentative without he re- plied, that, “I don’t recall no.” And so problem here whether who, one of the solicitors was a man easy ap- has been mechanical “a too himself, only purpose believed that plication Rule.” the Cumberland cards was obtain an election. recognizing trial himself examiner Gillis, The other solicitor was in- who signer direct calculated “words cidentally employee was the referred to language forget above opinion, Part I of the who signature” rejected Marx the card of pilfered the document from the Editor’s union adherent Ceder. He found that desk. bring the card was to had tоld Ceder *9 reading majority’s authoriza- After an about election and discus- nothing. Gray’s situation, language sion of meant card is difficult although Strangely, similar understand he how it concluded that rejected but card should be Erickson’s Gray’s accepted. Both were solicited UNITED STATES America misrepresentations were and the Gillis told the Both were ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍almost identical. Drug OF An ARTICLE CONSISTING an purpose to obtain of the cards was BOXES, LESS, each con- MORE OR their re- as to testified election—both taining an article LABELED 1 bottle of misrepresentations and that liancе TEMPORARY “LINE AWAY signing purpose sole SMOOTHER, COTY” WRINKLE bring an about election. Co., Inc., Appellant. Pfizer & Chas. No, 17415. interesting to note that fol- Gillis of Marx Ceder solicitation Appeals United States Court pattern and almost lows the same Third Circuit. Erickson, Cole with that identical 10, 1969. Argued April examiner, Gray. while The trial July Decided 1969. holding misrepresentations made to Sept. 2, As Amended Gray not warrant did Erickson concluded, rejection “Ce- of their Rehearing Sept. Denied sign for an ‘at least der asked bring ‘simply about election’ and thereby induced election’. Ceder sign find thе card and I conclude not counted.” word that the It “only” be noted should further during the solicita- not used Erickson, Gray Ceder, or Cole.

tion of ap- short, not did

In the trial examiner application easy

ply “a mechanical too Ceder, but rule” of the Cumberland strange Erick- he

for some reason did

son, Gray and Cole. Cole, the trial exam-

With specifically told

iner found Gillis authori- could that he language purpose was the sole zation However, the exam-

to have election. that, testi- Cole iner concluded impressed the solici- fied that he was signed

tation, probably have he would irrelevant, only anyway. This is response to in fact representation, also but

supported by since might have no indication of what misrepre- done in absence him- ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍trial examiner sentations which rejection of his self warranted said (R. 83).

card. part of the reverse that ordering respondent to

Board’s decision with directions remand election.

order a new