General Steel Products, A Division of The Seng Company v. The National Labor Relations Board, 503 F.2d 896, 4th Cir. (1974)
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Scribd Government DocsGeneral Steel Products, A Division of The Seng Company v. The National Labor Relations Board, 503 F.2d 896, 4th Cir. (1974)
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Scribd Government Docs503 F.
2d 896
87 L.R.R.M. (BNA) 2369, 75 Lab.Cas. P 10,348
GENERAL STEEL PRODUCTS, a division of the Seng
Company, Petitioner,
v.
The NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 74-1077.
United States Court of Appeals, Fourth Circuit.
Argued June 3, 1974.
Decided Oct. 1, 1974.
Lewis P. Hamlin, Jr., Salisbury, N.C., (Kluttz & Hamlin, Salisbury, N.C.,
on brief), for petitioner.
Frank C. Morris, Jr., Atty., National Labor Relations Board (Peter G.
Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin,
Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel,
and Michael S. Winer, Atty., National Labor Relations Board, on brief),
for respondent.
Lawrence M. Cohen, Chicago, Ill. (Gerard C. Smetana, Lederer, Fox &
Grove, Chicago, Ill., on brief), for American Retail Federation, amicus
curiae.
Before BUTZNER, RUSSELL and WIDENER, Circuit Judges.
BUTZNER, Circuit Judge:
The primary question raised by this review of a bargaining order is whether the
National Labor Relations Board can reinstate a petition for a representation
election that the Board dismissed when it erroneously entered an earlier
bargaining order. We hold that the Board did not exceed its authority, and we
enforce its order.
The Upholsterers' Union has been attempting since 1964 to establish itself as
the employees' bargaining representative at General Steel Products Co. The
following summary of earlier proceedings provides an understanding of the
present controversy:
3
P In March 1966, the Board found that the company's unfair labor practices
nullified its 1964 election victory and set aside the election. It also ruled that
the company had violated 8(a)(1) and (5) of the Act, entered a bargaining order
based on signed authorization cards, and dismissed the union's 1964 petition for
an election.1
P In June 1968, this court, upon the company's petition for review, enforced the
cease and desist order based on the violations of 8(a)(1) but denied enforcement
of the bargaining order.2
P In June 1969, the Supreme Court reversed our denial of enforcement of the
bargaining order and remanded the case for the Board's reconsideration.3
P In December 1969, the Board, without a hearing, affirmed its issuance of a
bargaining order.4
P In July 1971, this court again denied enforcement of the bargaining order and
remanded the case for a hearing to determine, among other issues, whether a
fair election could be held.5
P In October 1972, the Board ruled that a bargaining order was unnecessary,
reinstated the union's 1964 election petition, and directed a second election.6
P In December 1973, the Board summarily rejected the company's objections to
the second election, which the union won, and entered the current bargaining
order.7
10
We accept the company's major premise: the Board lacks statutory authority to
order a representation election without an extant petition for an elections.8 We
are not persuaded, however, by the arguments that the company builds on this
premise. They are (1) the Board lacked authority to reinstate the petition it
dismissed in 1966, and (2) the Board acted arbitrarily because reinstatement is
unprecedented and inconsistent with its previous positions.
11
The union's 1964 representation petition satisfied the Act's requirements and
invoked the Board's power to order an election. The Board's subsequent entry
of a bargaining order based on a card count, however, appeared to make the
election petition superfluous and the Board dismissed it. When the bargaining
order was ultimately determined to have been erroneously granted, the election
petition became an appropriate instrument for determining the question of
representation over which the parties had been continuously litigating.
12
The Board's correction of its error was not limited to vacating the bargaining
order which this court had declined to sustain. It could go further and reinstate
the election petition which it had improvidently dismissed on the mistaken
assumption that its bargaining order was enforceable. Mr. Justice Frankfurter
stated the controlling principle of law in FCC v. Pottsville Broadcasting Co.,
309 U.S. 134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656 (1940):
13
'On review the court may . . . correct errors of law and on remand the
Commission is bound to act upon the correction . . . But an administrative
determination in which is imbedded a legal question open to judicial review
does not impliedly foreclose the administrative agency, after its error has been
corrected, from enforcing the legislative policy committed to its charge.'
14
Contrary to the company's assertion, the Board's reinstatement of the petition
does not lack precedent. Under circumstances substantially similar to those
found here, the Board reinstated a petition and ordered a second election in
New Alaska Development Corp., 194 NLRB No. 137 (1972).
15
Nor is the Board's ruling inconsistent with the position that it took in Peerless of
America, Inc. v. NLRB, 484 F.2d 1108 (7th Cir. 1973) and Ft. Smith Outerwear
v. NLRB, 499 F.2d 223 (8th Cir. 1974), where, in unreported motions, it
questioned the statutory authority of a reviewing court to order an election on a
dismissed petition.9 We, however, are not faced with this issue. Neither our
remand in General Steel Products, Inc. v. NLRB, 445 F.2d 1350 (4th Cir.
1971), nor this opinion directs the Board to hold an election. Consequently, the
Board had no occasion to assert in this case the position it took in Peerless and
Ft. Smith. It is one thing for the Board to assert its own authority to reinstate a
representation petition and order an election under 9(c) of the Act, as it has
done here. It is quite another proposition for the Board to question a court's
exercise of similar authority, as it did in Peerless and Ft. Smith. The Board's
positions are complementary, not inconsistent.
16
The company filed a number of objections to the second election charging that
the union's misconduct affected the election. We find no error in the Board's
disposition of these issues without an evidentiary hearing. Cf. NLRB v.
Americana Nursing Home, 459 F.2d 26 (4th Cir. 1972); Intertype Co. v.
NLRB, 401 F.2d 41 (4th Cir. 1968).
17
Order enforced.
General Steel Products, Inc., 157 NLRB No. 59 (1966)
General Steel Products, Inc. v. NLRB, 398 F.2d 339 (4th Cir. 1968)
NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547
(1969)
General Steel Products, Inc., 180 NLRB No. 8 (1969)
General Steel Products, Inc. v. NLRB, 445 F.2d 1350 (4th Cir. 1970)
General Steel Products Co., 199 NLRB No. 121 (1972)
General Steel Products Co., 207 NLRB No. 112 (1973)
The Board's authority to order an election is contained in 9(c)(1) of the Act (29
U.S.C. 159(c)(1) (1970)), which provides in part:
'Whenever a petition shall have been filed . . . (A) by . . . a labor organization . .
. or (B) by an employer . . .
the Board shall investigate such petition and (if appropriate) direct an election
by secret ballot . . .'
In support of its motions, the Board argued that AFL v. NLRB, 308 U.S. 401,
60 S.Ct. 300, 84 L.Ed. 347 (1943), precluded direct review of an election
proceeding
