Scribd Logo
Upload

Welcome to Scribd!

  • 31 views

    Magnesium Casting Co. v. Albert J. Hoban, Regional Director of The First Region of The National Labor Relations Board, 401 F.2d 516, 1st Cir. (1969)

    Uploaded by

    Scribd Government Docs
    The court reverses the district court's interlocutory injunction against certifying the results of a union election. The court finds that the plaintiff waived any objections to the election being held by complying with the NLRB's Excelsior rule requiring the disclosure of employee names and addresses prior to the election. While the rule was later found to be invalid, the plaintiff could have refused to comply and allowed the election to proceed, rather than comply and then claim the election was tainted by the disclosure. The court instructs the district court to dismiss the complaint.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    Magnesium Casting Co. v. Albert J. Hoban, Regional Director of The First Region of The National Labor Relations Board, 401 F.2d 516, 1st Cir. (1969)

    Uploaded by

    Scribd Government Docs
    31 views3 pages
    The court reverses the district court's interlocutory injunction against certifying the results of a union election. The court finds that the plaintiff waived any objections to the election being held by complying with the NLRB's Excelsior rule requiring the disclosure of employee names and addresses prior to the election. While the rule was later found to be invalid, the plaintiff could have refused to comply and allowed the election to proceed, rather than comply and then claim the election was tainted by the disclosure. The court instructs the district court to dismiss the complaint.

    Original Description:

    Filed: 1969-01-27 Precedential Status: Precedential Citations: 401 F.2d 516 Docket: 7184_1

    Original Title

    Magnesium Casting Co. v. Albert J. Hoban, Regional Director of the First Region of the National Labor Relations Board, 401 F.2d 516, 1st Cir. (1969)

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The court reverses the district court's interlocutory injunction against certifying the results of a union election. The court finds that the plaintiff waived any objections to the election being held by complying with the NLRB's Excelsior rule requiring the disclosure of employee names and addresses prior to the election. While the rule was later found to be invalid, the plaintiff could have refused to comply and allowed the election to proceed, rather than comply and then claim the election was tainted by the disclosure. The court instructs the district court to dismiss the complaint.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    31 views3 pages

    Magnesium Casting Co. v. Albert J. Hoban, Regional Director of The First Region of The National Labor Relations Board, 401 F.2d 516, 1st Cir. (1969)

    Uploaded by

    Scribd Government Docs
    The court reverses the district court's interlocutory injunction against certifying the results of a union election. The court finds that the plaintiff waived any objections to the election being held by complying with the NLRB's Excelsior rule requiring the disclosure of employee names and addresses prior to the election. While the rule was later found to be invalid, the plaintiff could have refused to comply and allowed the election to proceed, rather than comply and then claim the election was tainted by the disclosure. The court instructs the district court to dismiss the complaint.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 3

    401 F.

    2d 516

    MAGNESIUM CASTING CO., Plaintiff-Appellee,


    v.
    Albert J. HOBAN, Regional Director of the First Region of
    the National Labor Relations Board, et al.,
    Defendants-Appellants.
    No. 7184.

    United States Court of Appeals First Circuit.


    Sept. 10, 1968, Certiorari Denied Jan. 27, 1969, See 89
    S.Ct. 720.

    Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen.


    Counsel, Marcel Mallet-Prevost, and Gary Green and Abigail Cooley
    Baskir, Attys., Washington, D.C., for appellants.
    Louis Chandler, Jerome H. Somers and Stoneman & Chandler, Boston,
    Mass., for appellee.
    Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
    ALDRICH, Chief Judge.

    This is a motion by the National Labor Relations Board and others, defendants
    appellants, for summary reversal for 'manifest error.' First Circuit Rule 5, July
    1, 1968. The facts which afford the basis of our decision1 may be briefly stated.

    In March 1968, a union2 filed a petition for election amoung certain employees
    of Magnesium Casting Co., plaintiff appellee herein. The customary formal
    hearing was conducted in April, and on May 22 the Regional Director ordered
    that an election be held on June 21. The plaintiff was directed to furnish a list of
    names and addresses of all eligible employees within seven days, pursuant to
    the so-called Excelsior rule. Excelsior Underwear, Inc., 156 N.L.R.B. 1236.
    Plaintiff furnished such a list on May 29.

    On June 12, 1968, this court decided in Wyman-Gordon Co. v. N.L.R.B., 1

    Cir., 397 F.2d 394, that the Excelsior rule had been promulgated in violation of
    the Administrative Procedure Act, and held that noncompliance therewith
    could not form the basis of a subpoena or order against the employer. Relying
    on this decision the present plaintiff, on June 17 and thereafter, requested the
    Board to set aside its May 22 decision and order. The Board refused. The
    election was conducted as scheduled, and the union won. In the district court
    the plaintiff then sought a mandatory injunction setting aside the election as
    void. The defendants moved to dismiss, inter alia attacking the jurisdiction of
    the court, asserting that the case was not one of voidability within Leedom v.
    Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210. The court did not pass
    on this motion, but entered an interlocutory injunction against the defendants,
    enjoining them from certifying the results of the election pending the outcome
    of certiorari proceedings in Wyman-Gordon. Defendants appealed, and now
    bring the present motion.
    4

    We reverse. The court has substantially misconstrued the effect of WymanGordon. Plaintiff's recourse, if the Excelsior rule was invalid, was to refuse to
    comply and to allow the election to proceed in an otherwise orderly fashion if
    the Board and the union were so minded. Plaintiff could not use its own
    compliance, afterwards regretted, as a basis for stopping all proceedings.3 This
    is a clear case of waiver.

    There is no merit in the contention that the election was unlawful. The fact that
    the Board improperly ordered the plaintiff to supply certain factual information
    was not jurisdictional so far as the election itself was concerned, but merely
    collateral thereto. A Matter far more jurisdictional was held to be waived in
    United States v. L. A. Tucker Truck Lines, Inc., 1952,344 U.S. 33, 73 S.Ct. 67,
    97 L.Ed. 54, because not promptly asserted. It is true that plaintiff did not wait
    as long in the case at bar as did Tucker, but the principle is the same. Plaintiff
    should have separated and resisted the illegal portion of the May 22 order rather
    than have complied therewith and then claimed that compliance tainted the
    rest.

    Equally there is no merit in the claim made in plaintiff's brief in this court that
    the Board misrepresented its powers. There was no misrepresentation of fact in
    Excelsior. The facts were correctly set forth in the opinion. All that was
    involved was a question of law. That is no more a bassis of misrepresentation
    than is the Board's claimed 'threat' to take legal recourse actionable coercion.
    See Commercial Credit Corp. v. Sorgel, 5 Cir., 1960, 274 F.2d 449, 453, cert.
    denied 364 U.S. 834, 81 S.Ct. 48, 5 L.Ed.2d 59; O'Toole v. Scafati, 1 Cir.,
    1967, 386 F.2d 168, 170, cert. denied 390 U.S. 985, 88 S.Ct. 1109, 19 L.Ed.2d
    1285.

    Labor matters should proceed promptly. Plaintiff was no different from the
    employer in Wyman-Gordon. Not being as alert to its rights, it missed the boat,
    or more exactly, boarded a boat it need mot have. That is the end of it.

    Plaintiff's motion for oral argument is denied. We have reviewed its brief, and
    consider the issue so plain that we would not be helped by oral argument. Due
    process does not require oral argument in every case, as is made apparent by
    the Supreme Court's summary reversal procedure on petition for certiorari.

    The interlocutory order of the district court is vacated and that court is
    instructed to dismiss the complaint.

    We do not pass upon all of the issues raised by the Board, and we do not
    consider certain additional facts sought to be alleged by the involved union,
    would-be intervenor. The petition to intervene is mooted

    United Steelworkers of America, AFL-CIO

    We do not pause to consider how, if plaintiff's position were to be upheld, the


    egg could be unscrambled

    You might also like