The Riverside Press, Inc. v. National Labor Relations Board

INC., PRESS, The RIVERSIDE Petitioner, LABOR RELATIONS

NATIONAL BOARD, Respondent. No. 25783. Appeals States Court Fifth Circuit. June Rehearing Rehearing Denied En Sept. Denied Banc Lyne, Lyne, French, Fritz L. Klein &

Dallas, Tex., petitioner, for The River- Press, side Inc. Mallet-Prevost, Marcel Asst. Gen. Counsel, Taylor, Ordman, John T. Arnold Counsel, Manoli, Gen. Dominick Asso- L. Attys., Counsel, Moore, ciate Gen. Elliott B., respondent. N. L. R. for Nichols, Cotton, Eugene Robert H. Watt, Chicago, Ill., inter Richard F. Li venor. Local Dallas-Fort Worth Photoengravers thographers Intl. Un & ion, AFL-CIO. ALDRICH,* Before GODBOLD DYER, Judges. Circuit Judge: ALDRICH, Circuit Press, employer,

An Riverside brings petition to section set aside a 8(a) (1) order of the National Labor Relations Board based bargain admitted failure * Circuit, designation. sitting by First theOf hearing hearing company’s position is that extensive officer The union.1 of the both remain election recommended that ballots certification regional improper, issue on uncounted. The director did an the union was only adopt to court review recommendation as Wil- it could obtain bargain awaiting ey, Schilling, by refusing but did and an as to therefore to charge. practice Boire certified the union. Review unfair Cf. labor Greyhound Corp., Board was denied. v. 849.2 At the 11 L.Ed.2d company recog- When the refused to sought stage practice to it unfair labor charges nize it the union filed institut- try of the certi one issues of the factual ing practice proceeding. an unfair labor only novo, to find that fication de proceedings At these counsel permit pro it. The Board would not General Counsel rested the election ruling ques priety sole of this and certification of the union and the tion before us. company’s admitted refusal. The com- begin union beginning, pany’s response request To towas dea novo petition, representation hearing after supervisory filed a on the status regional Schilling. director conducted which the It to did seek offer addi- hearing, customary pre-election evidence, newly de- tional or discovered oth- appropriate erwise, or- unit and Prods., termined the cf. Air Control Cir., The union won try dered election. 335 F.2d or to only by persuade but virtue of vote of to the trial examiner in effect ballots, challenging validity prior four review the decision to determine if against union, legally all of which were it factually was erroneous or un- claiming ineligible su- Southbridge voters supported, cf. NLRB v. objected pervisors. company Works, Cir., The Sheet Metal asserting challenge, right 851, 854, 2; union’s Pepsi-Cola n.& Bottling of all the status voters Cir., Buffalo v. Co. “litigated” conclusively pre- in the company’s only The 676. hearing election could not be reliti- was that before it could be gated However, guilty after election.3 found of an unfair hearing requested post-election if the complete it was entitled to a new hear- regional disagreed ing upon Schilling’s with its view right director status as of pre-election of the of the 10(b), conclusiveness section 29 U.S.C. regional director, (b). determination. disagreed, The trial examiner investigation, parte after an ex deter- hearing upon refused to conduct a this issue, mined that of the ballots should concluding two fully it had been counted, hearing litigated ordered a to deter- post-election hearing. others, Wiley mine the status dispute, With no other issues the im- Schilling. propriety within This was his discre- refusal Regula- bargain tion under NLRB Rules and followed as matter course. tions, 102.69(c).4 29 C.F.R. After an The Board affirmed. 1. disposing Local Dallas-Fort Worth Litho- decision of the issues and direct- Photoengravers graphers ing appropriate certifying International action or Union, instance, AFL-CIO. results of the election. either regional may such action director this, course, Boire 2. The reason for be on the of an basis administrative in- delaying pointed out, is to action deter vestigation or, appears regional if it the courts. director that substantial and material fac- might developed, If issue have raised tual issues can be exist which resolved questions, not been. only hearing, [he after a shall issue and parties cause to be served on a notice may (1) regional director issue a “[T]he hearing objections challenged ballots, issues report on said before a * * * both, his exercise officer.”] authority the case and issue a to decide raises, basically, long company shall abide line of cases that ruling. representational of the Board’s found criticisms have determi three one, objections binding nations most basic to be later may practice proceeding. not be NLRB hearings, post-election Prods., Cir., 1964, need Air Control F. resolved Douglas County us. This claim was not 2d not detain Elec. Casting Magnesium Membership untimely made, Corp., Cir., 1966, see 358 F. Hoban, Cir., 1968, 401 F.2d 2d Co. 125. There no reason to distin v. guish post-election hearings cert. denied 393 U.S. from those earlier, in the held 21 L.Ed.2d frivolous unless it were contended light hearings in of the Board’s wide discretion that the later dealt with issues fulfilling 9(c) largely its section function related to conduct which could certifying prac election results. form the Cf. basis for an unfair labor Co., 1946, charge only A. Tower 67 tice J. incidental to the hearings question proper L.Ed. 322. Such representation, long necessary have been It is not held. distinction we will return As the to. they specifically provided supra for in in Air Prods., Control 251, stated, dealing the statute. F.2d at “We are not objections with to the manner in which argues Secondly, company (or campaign) election if the Board can hold such even conducted or in those which election ac hearings, any resolution in issue tivities prac constitute unfair labor binding in should be subse accept tices.” Nor do we quent practice proceeding. unfair labor objection rule, to the Board’s 29 C.F.R. Initially points disparity to the in 102.69(d), which in effect denies the procedural safeguards terms between applicability post-election hearings hearings practice unfair prohibition 9(c) (1), of section hearings representational —both against 159(c) (1), accept U.S.C. § pre- post-election. Whereas in the hearing ance of officer’s recommenda hearings practice unfair labor pres examiner trial pre-election proceedings. tions in and the rules of evi ides6 9(c) (1) restriction in section on the developed dence in the con courts are powers hearing officers seems to have trolling practicable,” far “so in both part general of a reform in 1947 to representational hearings offi separate prosecutorial adjudicative presides8 cer and the rules “Presumably, functions of the Board. controlling.9 evidence are not In view purpose is to isolate the Board mem language practicable” of the “so far as agents, bers from the Board who con 10(b) representa of section and the investigations duct * * tional nature of the issue involved *."10 post-election hearing case, persuaded by in this we We are company obliged 10(b), 5. The 7. National Labor contends that it was Relations Act § calling post-election 160(b). to invoke the rule for U.S.C. hearings, though disputed even valid charged ity, Regulations, 8. NLRB or it would be with failure Rules and 29 C.F.R. 102.64, 102.69(d). to exhaust its administrative remedies. §§ Cir., Co., NLRB v. Rexall Cf. Chem. Regulations, if the rule was 9. NLRB 363. But Rules and 29 C.F.R. void, 102.66, 102.69(d). could be held §§ recourse thereto not necessary. is also too late to contend It post-election hearings Minority Report S.1126, were Senate S. 554(a) (6) Rep. exempted 105, pt. 2, Cong., Sess., 5 U.S.C. No. 80th 1st safeguards (1947), reprinted Administrative Pro at 33 U. S. Govt. Printing Office, Legislative History of the cedure Act. Management Act, 1947, Labor Relations (1948). if, Friendly Regulations, Judge 29 C.F.R. at 495 But 6. NLRB Rules and pointed out Utica Mut. Ins. Co. v. Vin- § 102.34. Cir., 1967, Amalga for that while it still contention Board’s 9(c) Clothing America, mally complies the section mated Workers cases, NLRB, 1966, pre-election App. the ad AFL-CIO restriction in 3(b), 29 U.S.C. D.C. hold that the issue dition of section subsequent “supervisory any employee 153(b), dele status” of in 1959 and the repre relitigated. powers gation must This is a of the Board’s miscon regional ception. relitigation proceedings These cases allow sentational discretionary directors, subsequent when the limited with a virtually prior appeal nullifies the Board “unrelated” to elec proceeding; insulating 9(c) (1), example, tion effect of section interfer organizational rights by need not ence with and therefore su pervisors, discharge post-election hear letter em a dead law ployee literally apply. allegedly ings, supervisor. it does But where Amalgamated, regional Clothing the neutral The director not Workers is specifically adjudicator noted, that Board members are com “Where a pany charged bargain presumed be, partakes in is since he with refusal prosecutorial election, v. a union functions. McLeod certified after Broth, Teamsters, proceeding 239, sufficiently is Local Inter. ‘related’ to the representation 108; proceeding etc., Cir., 1964, preclude 2 330 F.2d NLRB re- litigation Regulations, 29 of such Rules C.F.R. common issues as the §§ Therefore, scope 101.5-101.8, appropriate unit and em 102.14-102.19. ployees therein.” decisions 365 F.2d at 904. (Emphasis added.) solely by are made official not strict The issue is one of ly neutral; particular moreover, point fairness: was the when decisions that Board, they granted appeal by in pro arises the unfair ceeding significant actually come with the recommendations contest prior hearing, ed Finally, at the subordinate.11 could and was it clear ly instituting hardly prevented arising focused in terms of the issue procedure fairer, in probably practice charge. the later unfair is present which, contended, supervisory it has re case is a sta Schilling quirement Morgan tus process key of due was the issue in the post-election States, hearing, 1936, 468, vigorously 56 v. United 298 U.S. was contested, 906, and was S.Ct. 80 Utica in L.Ed. 1288. See focused terms of 1967, validity Vincent, Cir., victory. 2 Mut. Ins. Co. union v. The overlap, 129, 839, words, denied, in precise. 375 other 389 U.S. cert. rejecting (Friendly, J.) 88 63 say This is that the com frivolous that nonrecommen pany could not have raised before us the provision 9(c) dation of section is adequacy issue of the of the evidence to unconstitutional, Wayne noted in 14 L.R. support regional director’s conclu (1968). 617 Schilling sion had sta major tus. To Greyhound, The third claim return to Boire v. supra, in put is that even if some issues decided position cannot be in a representational proceedings may where it could never have a deter such binding subsequent company, however, in a labor mination. cases, though practice proceeding, preserving rights the recent its to raise Heights Home, by objecting Inc. 5 Funeral v. issues 129, 6, Cir., 1967, officer, moreover, “may cent. 133 n. denied, 839, 63, analysis

cert. 389 U.S. 88 S.Ct. submit an of the record to the * * *." regional 19 L.Ed.2d 102 the restriction was director or the Board speed up procedure, pre-election Regulations, is NLRB Rules and 29 C.F.R. clearly requirement post-election 102.66(f). not a proceedings. equity press them be- courts of NLRB,12 when asked to enter not choose to did argu- or oral default decree. us, either brief fore petition to review far as its ment. So With to other matters stated concerned, this was aside set suggested by opinion, I do not waiver. think rule Labor of National However, Cheney cross- Relations Board v. as the Board’s California so far concerned, Co., 385, Lumber petition for enforcement U.S. cursory look 90 L.Ed. modified possibly take a has been should we findings language either adequacy statute of the Board’s assumption anything order, said in support on the Universal Cam- Corp. special era v. basis National Labor Relations Fer Ochoa in NLRB v. decision 71 S.Ct. Court’s L.Ed. Corp., 82 S.Ct. National Labor Rela- tilizer here, Pittsburg present Co., tions Board SS. 7 L.Ed.2d upon leaving of sorts 95 L.Ed. 479. a burden argu language employer’s spite lack of the Act quoted Cheney relied v. Local NLRB ment. Cf. Cir., 1960, Company Carpenters, Lumber case not been Broth. Co., changed 823, 825; Filtron the later Act. Cir., 1962, subsequent In a case the Ninth Co., Cir., 1945, Kellburn ap Circuit cited this concurrence with National But F.2d 686. cf. NLRB proval. Co., F.P.C. v. Arizona Edison 9 424, Cir., 1943, Co., F.2d Mineral 7 134 Cir., 679, Clearly 1952, 194 F.2d 753, 425, 320 cert. denied the court must be that the satisfied a look would 88 L.Ed. 448. Such jurisdiction. However, Board had enforcing give qualms or the us no supra, Corp., Ochoa Fertilizer itself Gary Corp., 5 NLRB v. Aircraft der. put any would seem to have rest con to Cir., F.2d denied 368 cert. cept enforcing court, court, qua that the L.Ed.2d 87 18 a substantive interest in the correct NLRB, Fashions, 971; Inc. v. Brewton underlying ness of the decision the or Cir., denied cert. 5 der, or, quote our to Brother Godbold’s L.Ed.2d dissent, “whether of the the interest Co., Cir., NLRB v. Swift & represented by policies national the Con F.2d 561. * * * gressional enactments However, to this is the have most we the court should No enforce the order.” put con- in the do. The matter was well court, qua court, duty the doubt owes a curring Spot opinion in Red to itself to form ascertain that Co., Cir., 1951, Elec. such that enforcement beyond practicable, would be that we persuaded respondent approve judgment are not can the court that a

I point majority opinion, less lose a valid waiver as announced held it agree petition than Ochoa could consent. that this carefully should examine kind we The order bewill enforced. determining purpose record for jurisdiction to that Board had GODBOLD, (dissent- Judge, Circuit it has not make its order that ing) : of its au- “traveled outside the orbit thority”. procedure con- is in I differ with the on two Such opinion practice grounds. my they employ formity with the ancient tinguished post- than de- from 12. We make this concession rather those taken Actually, exceptions hearing, it. examiner’s bate specify point. employer took from trial examin- broad and fail to this hearing, as dis- er’s unfair they agree rejection employ- of review when erroneous standard with the “cursory procedural post-elec- look” at record novel take er’s attack on And, hearings.2 the record is tion as a when whole. appropriate under the stand- scrutinized I. The Standard of Review review, support en- ard of it does This case comes before us two forcement of the Board order. separate provi- and district my that, I brothers al- concur with 10(f), compa- sions. Pursuant to § though employer adequately pres- ny petitioned this court to review and during supervisory issue each erved the set the order aside Board. agency step proceedings,1 NLRB filed in one document its answer question in

failed to assert brief 10(f) petition to the and its petition to oral on its review cross-petition pursuant to enforce to § 10(f).1A Moreover, pursuant 10(e).4 I pro- Therein it “that said 1. We are not faced with the orthodox bar be forthwith transmitted the clerk imposed Board, review in the absence of the court upon and there- “extraordinary circumstances,” by party aggrieved of 10(e) shall file in objections proceeding, not raised before the record in the (and provided hence outside the record on certified review). Lab.Law.Rep. Upon ¶ See 3 CCH section 2112 of Title 28. the fil- 6015.67; Texaco, ing petition, pro- cf. Inc. v. of such the court shall (intervenor ceed same manner as in the case rejected). application by claim not raised before Board of an the Board under (e) section, subsection petition alleges 1 A. to set aside jurisdiction shall have the same supported by the order is not substan grant temporary Board such re- tial evidence on the record as a whole. restraining lief order as it deems not, But without brief this assertion just proper, and in like manner to argument, present sufficient enforcing, make and enter a decree 10(f) contention for review. modifying, enforcing modified, as so Any position setting part 2. in other would conflict with or aside whole or in the provisions 102.69(c), findings the of order of § 29 C.F.R. the the of the questions and with this Board with recent decisions of Court to of fact supported by establishing determining if the test for when substantial evidence party objecting challenging a on in the record considered as a whole right post- a shall in like case has a to manner be conclusive.” “substantial and —where 160(e) 4. 29 U.S.C.A. : material factual issues” are controverted. “(e) power The Board shall have to Industries, Inc., Smith any petition appeals court of of the n. Cir. 6. States, United or if all of the courts Portland Cement See also Southwestern appeals may application to which NLRB, Co. v. vacation, any made are in district court Genesco, States, any of the within United cir- F.2d 393. district, respectively, cuit or wherein the 160(f) question 3. 29 : unfair in U.S.C.A. oc- pe- person curred or “Review of final order of Board on wherein such resides business, or transacts tition to court for the enforce- Any person by “(f) aggrieved appropriate ment temporary a final of such order and for deny- granting order, restraining the relief or order of Board part sought ing file in in whole or in the relief and shall the court the record may proceedings, provided in in obtain review of such order as sec- appeals Upon in court of tion 2112 of Title ing the fil- United States petition, of such the circuit wherein the practice the court shall question alleged to have cause notice thereof to be served person person, thereupon engaged in or wherein such such and shall have jurisdiction business, proceeding or in the of the or transacts and of resides Appeals question therein, for the of the determined and States Court power Columbia, filing grant in such shall have porary to tem- District praying petition restraining written that relief or order a court a as. just proper, modified or make the Board be copy deems and and to and the order of petition enforcing, modifying, shall enter A of such a decree set aside. findings interpretation it, ceedings effect of the the the before had Taft-Hartley law, Act order Amendments fact, conclusions of respects reviewing power on the valid of the courts.5 are in all Board were Wagner provided Labor Act had the proper National under the ** findings facts, sup- of the Board if Act, as to as amended Relations evidence, ported or to enforce its were conclusive. this asked Supreme added). all The Court thereafter had (Emphasis While read der. agree panel the em “evidence” to mean “substantial members rights by 10(f) fail evidence.”6 courts had found ployer its waived Wag- ing Board’s press issue before burden satisfied under to court, support- ner Board’s standard if the results differ were this we right ed substantial viewed in evidence iso- to enforcement required resulting Congression- lation. From the which we on the standard right outrage determining such a al came the employ if “substantial evi- dence on the record considered exists in this case. test, ultimately whole” which became the my of a standard In view Taft-Hartley standard.7 insuffi- “cursory record is at the look” Against background Supreme . required for than that More cient. “Congress said Court has left no imprimatur put the court room for doubt as to the kind of scruti- Board order. on the enforcement ny appeals give which a court of must reaching I consider that conclusion satisfy the record Board to language adopted express itself that the Board’s order rests on ad- over by Congress debate after heated equate proof.” pre-Taft-Hartley evi- the defects of tendency examining carefully legisla- dentiary After standard and stamp history Taft-Hartley rubber appellate tive some courts Amend- ments, Supreme of deference admin- set out Court out orders Supreme language expertise, paraphrased also often so istrative elaborate indorsement Universal Camera standard: Court’s purpose standard the amended sure, requirement To can- Corp. v. Camera Universal vassing “the whole record” in 95 L.Ed. substantiality ascertain does not fur- over what nish a There can be calculus value re- says. viewing problem is wheth- court can the statute assess evidence. not, given application is, negative to be Nor was it intended er it us. before particular Labor the situation function of the Board as one of explained the amply agencies presumably equipped those or Camera Universal note congressional purpose, by experience I and must informed to deal with a knowledge, case specialized That of its observations. field several whose findings carry conflict intercircuit that field came about within setting modified, enforcing 1, 456, as so n. 5. 340 U.S. at 476 S.Ct. 71 95 part accompanying the order or in L.Ed. at n. 1 in whole aside 461 objection that has No the Board. text. mem urged before 477, 456, 6. 340 U.S. at 71 95 S.Ct. L.Ed. agency, ber, be agent, shall consid court, the failure unless ered objection urge neglect shall 477-483, 17, 7. 340 at U.S. 484 n. extraordinary cir because excused 456, 461-465, 95 at L.Ed. 465 n. 17 and findings Board cumstances. accompanying text; 340 at 485 n. U.S. sup questions if of fact 21, 456, 71 95 at 466 n. S.Ct. L.Ed. on ported evidence substantial 8. 340 at 71 S.Ct. at 95 whole shall L.Ed. considered record * * *" at 467. conclusive 288 enforcing

authority expertness an The role of the court possess pre-Taft-Hartley days do not and therefore was described courts respect. it mean that Nor does Second Circuit in NLRB v. Kellburn must Mfg. Co., Inc., requiring matters not ex- 2 Cir. even may displace pertise 686: a court fairly con- two Board’s choice between understood, As is well an enforce- though flicting views, court even proceeding therefore, ment is a com- justifiably made differ- have would order, appeal bination of from the matter been ent choice had the and a motion to enforce it. In its first merely Congress made it de has novo. aspect, e., appeal, i. as an we think that reviewing court clear that a upon respondent it rests to show setting a Board de- barred from aside findings at that least have sub- conscientiously cision when it cannot evidence; and, support stantial if supporting that that the evidence find so, when, it follows that as here the substantial, when viewed in decision is respondent defaults, is not neces- light record in its entire- sary to make that We examination. body ly furnishes, including the go are called therefore to no fur- opposed the Board’s view. evidence findings, ther than examine the de- added) (Emphasis they support order, cide whether at 95 L. in ac- whether order itself Ed. at 467-468. Accord: J. H. Rutter- cordance with the statute. Rex Co. v. 9A post-Taft-Hartley In a case the Sev- granted 359-360, cert. U. Circuit, relying Kellburn, enth S. L.Ed.2d without consideration effect (U.S.Mar. 1969) (No. 925); NLRB v. Camera, amendments and Universal Root, & F. Brown restated the idea that in an enforcement generally 2d 451. See 3 CCH Lab. proceeding respon- the burden is on the Rep. (examining Law conclusive ¶ dent to show want of substantial evi- findings ness of Board under Taft-Hart dence, and that default em- Wagner ley (.22) and former Act tests ployer enforcing oper- before the court (.82). allegations ates as a confession of the opinion Congress, by I am of the petition, the enforcement that all the so repeating substantiality the same stand- then find- need do is to see if the ings support 10(f), ard in both the order and whether insured complies statute, with the issues mutually exclusive enforcement on which the Board has the burden of provisions review would proof. sufficiency Taft-Hartley same test. The right Act nowhere intimates power But of the court to enforce a except upon

to enforcement satisfaction statutory. Board order Con- Once gress substantiality standard. written into the statute provisions mutually 10(f) petition, 10(e) 9. The review ex- of either a § § by required clusive not virtue of the standard is the same by review, differing rights respec- either sec- standard review. Under parties seeking juris- tive to invoke the withstand tion the Board’s order must subject equitable power appel- diction and same standard or it is to be- party triggers aggrieved ing late An in whole or in court. modified or set aside procedure through part. review § 10(f) with the Board cast the role respondent. Works, Wagner The Board seeks 9A. NLRB v. Iron 7 Cir. enforce- 10(e) aggrieved ment NLRB v. under with tire 220 F.2d 126. See also party, petitioned Company, if not 10 Cir. he has Flora Construction 10(f), respondent. Upon filing F.2d 310. give Any following standard of the court cannot order entered review a deci- power is, course, enforce under a lesser sion itself standard, order, procedural effi- articulated for court’s not that of ciency expedition.10 Board. this the matter dif- appeal fers from an from a district rely a line cases correspondingly court. areWe more predicated Cheney upon NLRB v. Cal. concerned with the content of the or- Co., 1946, 385, 66 Lumber S.Ct. if, default, der. For we must auto- Cheney inapposite. 90 L.Ed. is 739. matically prepared by enter agency in the It involved a clear default Congress would effect be Cheney proceedings. employer giving to an administrative board the simply exceptions failed to file final word in formulation of our report and Trial Examiner’s intermediate injunctions. recognize We no such request failed to oral power, thought even if it could be Board. at there such an intent. Supreme merely Court in 553. departed 278 F.2d at 825. Then he 10(e) voked the orthodox § say scrutiny that “full need not prohibition11 against examina party be accorded a who failed to has tion of an issue not raised before diligently preserve prosecute his 388-389, at Board. 10(f) rights.” Section inquiry But vig employee judice 553.12 The sub has is whether interest the national orously protested issue policies represented by Congression- agency proceedings. in all The §(cid:127) enactments, including al labor the 1947 prohibition application. has Amendments, the court should enforce In NLRB Local Broth. scrutiny the order. full The less than Carpenters, 1st penal- Cir. standard of Local in effect a Judge writing ty against nondiligent Aldrich for the employer and a Circuit, First what me Board, set out seems to simply reward to the is al- 10(e).13 correct: Cheney lowed Moreover only recently This court reiterated Electra Co. v. 5 Cir. appellate rep- (Emphasis added). the standard for review of 408 F.2d 570 NLRA, resentation cases under the hold- ing: 160(e) (1964) 1 1. 29 U.S.C. : proceeding objection urged “While a “No that has not been subject member, alone would agent, to direct before the Court, agency, review this where an unfair or court, shall be considered practice charged neglect refusal unless the failure or bargain, employer objection urge and the has re shall be excused recognize certification, extraordinary fused to because of circumstanc- proceeding properly here. es.” circumstances, repre Under Operating those NLRB v. See Int’l Union of Eng., sentation case and the Local practice one, therein; case and the com become 843-844 and cases cited plete fully generally Rep. record reviewable. see 3 CCH Lab.Law ¶ Tampa Distributors, Crown 6015.67. (5 1959). 272 F.2d 470 Cir. Genesco, Cheney also: NLRB F.2d 393 Also antedated both the Taft- (5 1969). Hartley In order to arrive Amendments and Universal Cam matter, we must decision era. consider the record to determine wheth course, keep er the Board’s certification of the Un 13. Of the court can its own ion, consequent finding grant of an un house in order. It can decline to by petitioner, enforcement, fair labor were for default of the Board in supported by failing press petition. based on substantial an enforcement facts application cor evidence and on But this does not answer whether legal grant rect standards. Universal Cam court can affirmative relief in favor Corp. 474, determining 340 71 era v. U.S. of the Board without if there (1951).” 456, support L.Ed. 456 95 is evidence to it. 290 Hearing the Officer’s rule. I would review such a NLRB for does stand 1962, Filtron, report15 Inc., Camera the Universal 2 Cir.

v. 10(e) adoption per of the test.16 -§ is a curiam 185 on 111 and also relies rationale of Local Substantiality of the Evidence II. Co., Cheney. NLRB v. Kellburn by Hearing appointed Officer, the Inc., supra, Min and v. National NLRB Regional post- to conduct the Director Co., F.2d erals 7 Cir. 134 super- hearing the to determine 425-426, 64 cert. denied 320 U.S. Schilling Wiley, visory of status Taft 88 L.Ed. antedate adopted legal guide to 2 as his § Hartley Camera.14 and Universal Creamery, NLRB v. Beaver Meadow attending presumption the of correctness Inc., 1954, 215 He 3 Cir. F.2d 251. agencies proceedings of administrative concluded Beaver Meadow Cream- dispense the down cannot water with ery supervisor held term is that “the specifically estab pos- of disjunctively standard review be read 2(11) Congress any of one of enforcement session the Section lished powers supervisor.” one a will make Board orders. majori- 10. But none do language 846 n. of this has to agree 14. I with scope Spot a ty Co., with of review in case such in NLRB Red Electric v. has (9th 1951) us where there been as : 191 697 Cir. agency proceedings any default event, has “In it now held statutory scope hence no prohibition of action for the Act re- amendments (e). quired of § rule of construction stricter effectively rubber-stamped 15. The Board than hitherto and that the courts have Hearing report sphere find Officer’s and its the ings a much determining action in broader Schilling’s supervisory status what orders are to en- Regional Corp. it review of the when denied v. forced. Universal Camera report adopting Director’s decision National Labor Relations any foreclosing repre relief 9§ 71 S.Ct. National La- adoption proceeding; by Pittsburgh with sentation Board bor Relations Steamship Co., of its Trial Examiner’s out practice case, decision 95 L.Ed. 479. including “Therefore, power simply his invocation of no-reliti because the gation (29 102.67(c), party rule C.F.R. § of a in default take action as effectively right may relief foreclosed have been delimited proceeding. Congress, 10§ there is no intimation that scrutiny power judicial was de- majority conclusion, stroyed If based when the Board came suitors Cheney, praying upon report, is otherwise correct we still sanctions neither “extraordinary entry should circum which has nor the contents of exception result, stances” § review them. been considered summary As prohibition. Spiewak, Cf. enforcement been denied.” Spot, pursuant In the instant In Red 29 U.S.C.A. wholly regulation, 160(c) case the 10 order condition the Board’s validity finding. 102.48, al C.F.R. 101.12 and automatically adopted To enforce the former without careful examin- the trial scrutiny report employer of the latter with in accordance did not er’s because the may exceptions report. the substantial evidence test result file The court summary bargaining grant in a being certification and held it would not en- up examining abdication forced without the record. forcement employees on less than a follow Red The First Circuit declined to Spot rights paramount. NLRA, Co., whose in NLRB v. Auburn Curtain 9(a), §§ Red Sections U.S.C. F.2d 826. (1964). Spot Cheney 159(a) Judicial en concerned with the part integral problem made forcement was effect of default —the protec agency proceedings assure disclaimer of scheme to —and Curtain, correctly points rights employee guaranteed un in Auburn tion employ Cheney. Act, not to either der the insure out that inconsistent Operat- Int’l or union Union er success. See also ing Eng. 66, supra, F.2d at Local (1) Officer, Testimony those consid- Hearing reflects According to the supervi- by Employer ered overlapped the other Schilling’s shift Schilling are salaried both shifts, (2) sors while announced he was two Wiley hourly paid early Spring and oth- as are “foreman” sometime (3) hourly employees. supervi- supervisor, er department he Other Lunt, the basis, sors are rated on an annual 75 cent an 25 to subsequently received Schilling Wiley although express- while and are rated on raise, it was pay hour a semi-annual other hour- basis as are followed ever ly no discussion found that ly employees. responsibili- duties, rated Neither attends to his with regularly supervisor employ- “gives scheduled meet- (4) authority, ties, he ings supervisors.17 negatives work, do admitted be- checks ees the ****** they plates, looks make their fore (5) they plates make them.” after It is clear from the record nei- Schilling by given jobs order of Schilling Wiley ther nor the au- has department Lunt, presence whose hire, fire, thority promote, discip- day, times to 20-30 from none varies line, suspend, lay off, recall, dis- do, jobs Schilling (6) men which tells charge, employees or reward their writing including occasionally instruc- effectively recommend such action. night blackboard shift on a for the tions (7) so, con- he do Lunt Hearing does when Officer then framed the department lithographic supervisory fers with issue in a nutshell: “[T]he percent approximately 90 supervisor on evidence does reflect that both of them problems, plate quality control [Schilling assign Wiley] work occasions assignment he cheeked several employees transfer from one by department made entries time card question to another. The is whether mistakes employees them of notified merely are of a actions routine made. whether, clerical nature or in the exer- authority, they independ- cise of this use Hearing hand, Offi- On the other judgment.” ent important other three cer also made lan- in his own findings, set out best Regional disagreed Director as to guage : Wiley. adopted But he as his own deci- Hearing sion the Officer’s determination supervisor Lunt, admitted Schilling’s status, finding rubber- plate department, maker not a stamped without review general only knowl- trade, and has both its and unfair labor making techniques. edge plate practice capacities.18 Lunt appears record that from the It supervi- responsible for the over-all recently This held that section, department sion of the 2(11), defining under NLRA who opera- internally method “supervisor,” pragmat- constitutes a is a Schilling has the up who tion is left Porta-Plant, ic In test. Ross Inc. v. necessary knowledge technical NLRB, 5 Cir. added). (emphasis making plates, the court noted that the definition re- * * * personnel footnote, Regional are defined. 17. In an elaborate Groendyke Transport, Davis, super- Inc. v. Cf. set out Director applied hierarchy cert. visory Di- in his Decision 9(c). L.Ed. pursuant for 394 U.S. to § Election rection of Wyman-Gordon adopted fact, 2). 2d Co. (R. he n. granted structure, cert. organizational ex- stipulated inspectors, 21 L.Ed.2d ception of certain parties. em- list of An Excelsior ployees’ also and addresses names supra. clearly showing thereby 18. See note required, who eligible when voters be considered should regular hav- effectively on the Court active service authority quired “actual polled ing requested that the Court be explained: Court others.” direct banc, (Rule rehearing 35 Federal en on type author- By mean this we Procedure; Local Appellate Rules management and ity from which flows 12) for Petition Rule Circuit Fifth with an individual tends associate Rehearing En Banc is denied. management. 2(11) Con- enacting Act from gress to exclude intend did not except protection individuals managerial possess true those who designed to powers. section This genuine supervisors

management prerogatives as distin- leadmen, bosses, guished “straw Metz, Thomas Keller WHITE and Hal W. supervi- set-up men, other minor Appellants, S.Rep.No. on S. sory employees.” Sess., Cong., p. 4. The 1st 80th America, UNITED STATES designation these em- Appellee. heads,” “as- “department ployees as No. 25955. or “foremen” sistant foremen” delega- controlling absence Appeals Court States managerial fide tion them bona Fifth Circuit. powers. June Ameri 404 F.2d at 1182. See Texas, can Co. curiam); (per Security Service, Inc., Cir. Guard generally CCH 149. See Rep. 1675.147 1675.11 and

Lab.Law ¶ ¶ supervisory (duties not title determine status). overly Hearing restric- Officer’s Meadow Beaver tive reliance Creamery determination resulted in his top Schilling’s functions as right for man plate maker and hand supervisor, Lunt, non-craftsman supervisor, Schilling notwith- made Schilling standing- finding lacked all of the indicia of recognized possessed com- status hierarchy. pany evidence Substantial fails to the record considered as a whole anything Schilling more show I boss”. than a man” “straw “lead deny would enforcement. FOR REHEARING PETITION ON FOR REHEAR- PETITION AND EN BANC ING PER CURIAM: Rehearing is denied The Petition Judge panel nor no member of

Case Details

Case Name: The Riverside Press, Inc. v. National Labor Relations Board

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 11, 1969

Citation: 415 F.2d 281

Docket Number: 25783_1

Court Abbreviation: 5th Cir.