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    National Labor Relations Board v. Clement-Blythe Companies, A Joint Venture, 415 F.2d 78, 4th Cir. (1969)

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    The court declined to enforce the National Labor Relations Board's order requiring Clement-Blythe Companies to bargain with a union. While the Board granted summary judgment, it failed to provide reasons for concluding that the union election was not premature or that the workforce at the time of the election was representative of the ultimate workforce. The court remanded the case, requiring the Board to explain its decision and reasoning when using summary judgment in unfair labor practice cases that involve issues previously decided in representation proceedings.

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    National Labor Relations Board v. Clement-Blythe Companies, A Joint Venture, 415 F.2d 78, 4th Cir. (1969)

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    The court declined to enforce the National Labor Relations Board's order requiring Clement-Blythe Companies to bargain with a union. While the Board granted summary judgment, it failed to provide reasons for concluding that the union election was not premature or that the workforce at the time of the election was representative of the ultimate workforce. The court remanded the case, requiring the Board to explain its decision and reasoning when using summary judgment in unfair labor practice cases that involve issues previously decided in representation proceedings.

    Original Description:

    Filed: 1969-09-09 Precedential Status: Precedential Citations: 415 F.2d 78 Docket: 13058

    Original Title

    National Labor Relations Board v. Clement-Blythe Companies, a Joint Venture, 415 F.2d 78, 4th Cir. (1969)

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    The court declined to enforce the National Labor Relations Board's order requiring Clement-Blythe Companies to bargain with a union. While the Board granted summary judgment, it failed to provide reasons for concluding that the union election was not premature or that the workforce at the time of the election was representative of the ultimate workforce. The court remanded the case, requiring the Board to explain its decision and reasoning when using summary judgment in unfair labor practice cases that involve issues previously decided in representation proceedings.

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    27 views5 pages

    National Labor Relations Board v. Clement-Blythe Companies, A Joint Venture, 415 F.2d 78, 4th Cir. (1969)

    Uploaded by

    Scribd Government Docs
    The court declined to enforce the National Labor Relations Board's order requiring Clement-Blythe Companies to bargain with a union. While the Board granted summary judgment, it failed to provide reasons for concluding that the union election was not premature or that the workforce at the time of the election was representative of the ultimate workforce. The court remanded the case, requiring the Board to explain its decision and reasoning when using summary judgment in unfair labor practice cases that involve issues previously decided in representation proceedings.

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    of 5

    415 F.

    2d 78
    72 L.R.R.M. (BNA) 2138

    NATIONAL LABOR RELATIONS BOARD, Petitioner,


    v.
    CLEMENT-BLYTHE COMPANIES, a joint venture,
    Respondent.
    No. 13058.

    United States Court of Appeals Fourth Circuit.


    Argued June 13, 1969.
    Decided Sept. 9, 1969.

    Michael F. Rosenblum, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel,


    Dominick L. Manoli, Assoc. General Counsel, Marcel Mallet-Prevost,
    Asst. Gen. Counsel, and William F. Wachter, Atty., N.L.R.B., on brief),
    for petitioner.
    Harry L. Griffin, Jr., Atlanta, Ga. (Smith, Currie & Hancock, Atlanta, Ga.,
    on brief), for respondent.
    Before BRYAN, CRAVEN and BUTZNER, Circuit Judges.
    BUTZNER, Circuit Judge:

    The National Labor Relations Board petitions for enforcement of an order


    requiring Clement-Blythe Companies to bargain collectively with the
    International Union of Operating Engineers, AFL-CIO Local No. 74.1 We
    decline to enforce the order because the Board has failed to set forth reasons for
    its decision.

    Clement-Blythe Companies, a joint venture, began construction of KeoweeToxaway Dam in South Carolina on March 6, 1967. A month later the union
    filed a petition for certification. At a representation hearing conducted April 28,
    1967, Clement-Blythe moved to dismiss the petition on the ground that an
    election would be premature because the work force constituted an expanding
    unit without a substantial and representative complement of employees.2 The

    evidence at the hearing was uncontradicted. The only witness was the project
    manager who testified that 37 production and maintenance employees were
    then employed. He anticipated 60 production and maintenance employees at
    the end of May, 80 at the end of June, 90 at the end of July, 110 at the end of
    August, 125 at the end of September, 140 at the end of February 1968, and
    between 180 and 190 from April 1969 until the completion of the work.
    3

    The Regional Director ordered an election to be held on June 15, 1967, and the
    Board denied Clement-Blythe's request for review. Of the 40 employees
    eligible to participate in the election, 31 voted for the union. Clement-Blythe,
    still insisting that the electorate was not a representative and substantial
    segment of the contemplated work force, refused to bargain with the union.
    Consequently, the general counsel issued a complaint charging Clement-Blythe
    with violations of 8(a)(5) and (1) of the Labor Act (29 U.S.C. 158(a)(5) and
    (1)). The general counsel then filed a motion for summary judgment with the
    Board. Clement-Blythe opposed this motion contending that it was entitled to a
    hearing at which it could prove that it had 100 employees as of August 28,
    1967, and that its work classifications were double the number existing at the
    time of the representation hearing. The Board ruled that Clement-Blythe's
    tender of proof did not present newly discovered or previously unavailable
    evidence. The Board fully stated its reasons for its ruling on this issue, and we
    find no procedural defect in the denial of a de novo hearing.

    The Board held that Clement-Blythe could not relitigate issues decided in the
    representation proceedings and granted the motion for summary judgment.3 In
    its decision and order, the Board recited the facts developed at the
    representation hearing and concluded that the employer's refusal to bargain was
    an unfair labor practice. The crucial paragraph of the Board's decision is:

    'As all material issues have been previously decided by the Board, admitted by
    Respondent's answers to the complaint and amendment thereto, or stand
    admitted by the failure of Respondent to controvert the averments of the
    General Counsel's motion, there are no matters requiring a hearing before a
    Trial Examiner. Accordingly, the General Counsel's Motion for Summary
    Judgment is hereby granted.'4

    We previously have upheld the Board's use of summary judgment when the
    basis for the employer's refusal to bargain was the same that was litigated in the
    underlying representation hearing.5 We do not condemn this practice now. But
    the use of summary judgment in deciding whether an employer has committed
    an unfair labor practice does not exempt the Board from complying with the
    Administrative Procedure Act (5 U.S.C. 557(c)), which requires that:

    'All decisions, including initial, recommended, and tentative decisions, are a


    part of the record and shall include a statement of--

    '(A) findings and conclusions, and the reasons or basis therefor, on all the
    material issues of fact, law, or discretion presented on the record * * *.'

    The defects in the procedure followed in this case are readily apparent.
    Nowhere did the Board explain why it reached the decision that 40 employees
    constituted a substantial segment of the ultimate work force of 180 to 190
    employees. Nor did it explain why it approved an election on June 15, 1967
    instead of 90 days later when the work force would have nearly tripled. The
    Board's earlier consideration of Clement-Blythe's request for review of the
    Regional Director's decision does not supply the deficiency, for then the Board
    simply denied the request with the observation that it raised no substantial
    issues warranting review.6

    10

    When the Board rules that an employer has committed an unfair labor practice,
    the employer is entitled to know, and the Board is charged with the duty of
    stating, the reasons why the Board concluded the facts showed a violation of
    the law. Cf. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 195, 61 S.Ct. 845, 85
    L.Ed. 1271 (1941); 2 Davis, Administrative Law 16.12 (1958). No statutory
    exception to this rule exists because critical elements of the controversy were
    determined preliminarily by the Regional Director in the representation
    proceedings. The Board, not the Regional Director, has the responsibility of
    deciding complaints of unfair labor practice. 29 U.S.C. 160(c).

    11

    The need for the Board to provide its reasons is based on something more than
    insistence on technical compliance with the Administrative Procedure Act (5
    U.S.C. 557(c)). Counsel for the Board cited cases in which under comparable
    facts an election was ordered.7 Clement-Blythe countered with substantially
    similar cases in which the Board held the petition for election was premature.8
    Because the Board did not state its reasons here, it is difficult to say whether its
    order is rational or arbitrary. But, 'courts ought not to have to speculate as to the
    basis for an administrative agency's conclusion.' Northeast Airlines, Inc. v.
    CAB, 331 F.2d 579, 586 (1st Cir. 1964). Although the ruling in the
    representation hearing is not subject to direct review, it may be challenged
    when it becomes the basis of an unfair labor practice complaint. American
    Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347
    (1940). Then the reasons for the Board's decision become essential, for lack of
    clarity in the administrative process infects review with guesswork. See Phelps
    Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 85 L.Ed. 1271 (1941).

    12

    Three precautionary observations are appropriate so that this opinion will not
    be given a scope broader than its due:

    13

    First, the Board need not give its reasons in representation proceedings.
    Congress recognized the necessity of avoiding delay at this stage of labormanagement relations and authorized the Board to delegate its power in
    representation cases to Regional Directors. 29 U.S.C. 153(b). The
    Administrative Procedure Act excludes from its requirements 'the certification
    of worker representatives.' 5 U.S.C. 554(a)(6). This exclusion applies not only
    to the proceedings before the Regional Director, but also to the Board's grant or
    denial of review of the Regional Director's decision. This, too, is part of the
    certification process. Only when the issues concerning representation become
    entwined in a subsequent unfair labor case must the Board comply with the
    Administrative Procedure Act, (5 U.S.C. 557(c)), and state reasons for its
    decision.

    14

    Second, the Board need not conduct a de novo hearing in every unfair labor
    practice case. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 161, 61 S.Ct.
    908, 85 L.Ed. 1251 (1941); NLRB v. Union Bros., Inc., 403 F.2d 883 (4th Cir.
    1968); NLRB v. Bata Shoe Co., 377 F.2d 821 (4th Cir.), cert. denied, 389 U.S.
    917, 88 S.Ct. 238, 19 L.Ed.2d 265 (1967). But in the absence of a de novo
    hearing, the Board must thoroughly review the record before the Regional
    Director and make its own decision. Pepsi-Cola Buffalo Bottling Corp. v.
    NLRB, 409 F.2d 676, 681 (2d Cir. 1969).

    15

    Third, our opinion does not prohibit the Board from deciding unfair labor
    practice cases on motions for summary judgment. We do require, however, that
    in granting a motion for summary judgment the Board explain why the facts
    found at the representation hearing sustain the complaint of an unfair labor
    practice.

    16

    The petition for enforcement is denied, and this case is remanded to the Board
    for further proceedings.

    Clement-Blythe Companies, 168 NLRB No. 24, 66 LRRM 1342 (1967)

    For expanding units the Board has adopted a decisional rule that an election
    will be directed if the present employees constitute a substantial and
    representative segment of the ultimate work force. See, e.g. General Cable
    Corp., 173 NLRB No. 42, 69 LRRM 1318 (1968); Revere Copper and Brass,

    Inc., 172 NLRB No. 117, 68 LRRM 1425 (1968); Gen. Mot. Corp., ElectroMotive Div., 82 NLRB 876, 23 LRRM 1651 (1949). Clement-Blythe does not
    contend this rule is improper
    3

    The Board's rules provide, 29 CFR 102.67(f):


    'The parties may, at any time, waive their right to request review (of the
    Regional Director's decision). Failure to request review shall preclude such
    parties from relitigating, in any related subsequent unfair labor practice
    proceeding, any issue which was, or could have been, raised in the
    representation proceeding. Denial of a request for review shall constitute an
    affirmance of the regional director's action which shall also preclude relitigating
    any such issues in any related subsequent unfair labor practice proceeding.'

    Although Clement-Blythe admitted its refusal to bargain, it continuously


    asserted that the representation election 'did not reflect the interest and choice
    of a substantial and representative complement of (its) ultimate work force.'

    NLRB v. Union Bros., Inc., 403 F.2d 883, 887 (4th Cir. 1968); NLRB v.
    Aerovox Corp., 390 F.2d 653 (4th Cir. 1968); LTV Electrosystems v. NLRB,
    388 F.2d 683 (4th Cir. 1968); NLRB v. Carolina Natural Gas Corp., 386 F.2d
    571 (4th Cir. 1967); accord, NLRB v. Puritan Sportswear Corp., 385 F.2d 142
    (3d Cir. 1967); NLRB v. Tennessee Packers, Inc., 379 F.2d 172 (6th Cir.), cert.
    denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967); Macomb Pottery
    Co. v. NLRB, 376 F.2d 450 (7th Cir. 1967); Neuhoff Bros. Packers, Inc. v.
    NLRB, 362 F.2d 611 (5th Cir. 1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1027,
    18 L.Ed.2d 106 (1967)

    We do not reach the question of whether the Board could discharge its duty by
    adopting the reasons supplied by the Regional Director. In this case the
    Regional Director gave no reasons. The crux of his opinion is the conclusory
    statement that Clement-Blythe's operations are 'sufficiently established and
    stabilized and that they are manned by a substantial and representative segment
    of the Employer's ultimate working complement.'

    General Cable Corp., 173 NLRB No. 42, 69 LRRM 1318 (1968); Revere
    Copper & Brass, Inc., 172 NLRB No. 117, 68 LRRM 1425 (1968); Kermac
    Nuclear Fuels Corp., 122 NLRB 1512, 43 LRRM 1330 (1959); Brown & Root
    Carbide, Inc., 119 NLRB 815, 41 LRRM 1204 (1957); Gen. Mot. Corp.,
    Electro-Motive Div., 82 NLRB 876, 23 LRRM 1651 (1949)

    Slater Systems Maryland, Inc., 134 NLRB 865, 49 LRRM 1294 (1961);
    Individual Drinking Cup Co., Inc., 101 NLRB 1751, 31 LRRM 1287 (1952)

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