M. Lowenstein & Sons

National Labor Relations Board - Board Decisions

Jun 24, 1970

183 N.L.R.B. 1048 (N.L.R.B. 1970)

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lyman Printing and Finishing Company, a Division
of M. Lowenstein & Sons and Machine Printers
and Engravers Association of the United States.
Case I1-CA-4077
June 24, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND BROWN
On April 13, 1970, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, granting General Counsel's Motion for
Summary Judgment on the ground that there are no
unresolved issues requiring an evidential hearing,
and finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended. The Trial Examiner recom-
mended that the Respondent cease and desist from
such unfair labor practices and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Charging Party filed a
reply brief.'
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the findings,'
conclusions, and recommendations of the Trial Ex-
aminer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Lyman Printing and
Finishing Company, a Division of M Lowenstein &
Sons, Lyman, South Carolina, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
material The Respondent has since filed such a request with the Board We
hereby affirm the findings of the Trial Examiner in these matters and deny
the request of the Respondent, for the other reasons set forth in Appendix
A of the Trial Examiner's Decision U S v Morgan, 313 U S 409, 422,
Davis v Braswell Motor Freight Lines, Inc , 363 F 2d 600 (C A 5) We
have made an independent review of the Supplemental Decision and Cer-
tification of Results of Election in Case I 1-RC-2837, and conclude that
the Regional Director's rulings on the objections were correct We do not
adopt the finding that the Hearing Officer issued a report on December 3,
1968
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
CHARLES W. SCHNEIDER, Trial Examiner: The
case arises on a motion of counsel for the General
Counsel for summary judgment, based on an ad-
mitted refusal by the Respondent to bargain with
the certified Charging Union on the ground that the
unit found appropriate by the Board is inap-
propriate and "contrary to the statutes, Board
precedents, and industry practice." Therefore, the
Respondent contends, the Union was not properly
certified as the collective-bargaining representative.
The Representation Proceeding'
Upon petition filed on October 30, 1968, under
Section 9 ( c) of the National Labor Relations Act
(29 U.S.C.A. 159 (c)) by Machine Printers and En-
gravers Association of the United States, herein
called the Union , a hearing involving the represen-
tation of employees of Lyman Printing and Finish-
ing Company , a Division of M. Lowenstein & Sons,
herein called the Respondent , was held before a
Hearing Officer of the Board on November 21, 22,
and 27, 1968. Thereafter, on December 3, 1968,
the Hearing Officer issued his report on such hear-
ing, and on December 12, 1968 , the Regional
Director for Region 1 1 issued an order transferring
the case to the Board.
The Union then represented some employees of
the Respondent in two separate bargaining units,
one in the Respondent's engraving department on a
departmental basis and the other a craft unit of
machine printers in the print department or print
room . It sought an election among the employees of
the Respondent 's color department and also among
the unrepresented employees in the print room,
with the apparent intent of adding such employees
i The Charging Party limited its response in its reply brief to a request for
damages as a part of the remedy herein We deem it inappropriate in this
case to depart from our existing policy with respect to remedial orders in
cases involving violations of Sec 8 ( a)(5), and therefore deny the said
request
2 The Trial Examiner attached to his Decision as Appendix A his Opinion
Revoking Subpoenas Duces Tecum and Denying Applications To Take
Depositions and To Require Interrogatories One of the grounds for his ac-
tion therein was that the Respondent has not requested the General Coun-
sel or the Chairman of the Board for consent to the production of the
Administrative or official notice is taken of the record in the represen-
tation proceeding, Case I 1-RC-2837, as the term "record" is defined in
Sec 102 68 and 102 69(f) of the National Labor Relations Board 's Rules
and Regulations and Statements of Procedure, Series 8, as amended See
LTV Electroiy %tems, Inc , 166 NLRB 938, enfd 388 F 2d 683 (C A 4,
1968), cert denied 393 U S 843, Golden Age Beverage Company, 167
NLRB 151, enfd 415 F 2d 26 (C A 5, 1969), Intertype Company v Penel-
lo, 269 F Supp 573 (D C Va , 1967), Intertype Company v NLRB , 401
F 2d 41 (C A 4, 1968), cert denied 393 U S 1049 (1969), Follett Cor-
poration, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of
the National Labor Relations Act, as amended
183 NLRB No. 105
LYMAN PRINTING & FINISHING CO.
to the existing unit in the print room . The Respon-
dent contended that such a unit was not ap-
propriate for collective bargaining.
On July 14, 1969, the Board issued its Decision
and Direction of Election in which, after discussing
the evidence and the various contentions , it con-
cluded that a departmental unit consisting of em-
ployees in the print room could be appropriate, if
the unrepresented employees in the print room
chose to become part of such a unit. The Board
therefore directed that a self-determination election
be held in a voting group consisting substantially of
the unrepresented nonsupervisory employees in the
print room, provided that the Union was willing to
represent such employees and made an adequate
showing of interest therein.
The Board further said that if a majority of that
group voted for the Union, the Regional Director
would certify that result and the Union could then
bargain for them as a part of the Union's bargaining
unit of print room employees. With respect to the
employees in the color department sought by the
Union, the Board found that they would not con-
stitute an appropriate unit, either alone or as part
of a unit of print room employees.
On August 4, 1969, Respondent filed its motion
for reconsideration, rehearing, and stay of
scheduled election, after which, on August 5, 1969,
the Union filed its opposition to the Respondent's
motion. By telegraphic order dated August 11,
1969, the Board denied Respondent's motion, stat-
ing that "it contains nothing not previously con-
sidered by the Board...."
On August 13, 1969, an election by secret ballot
was conducted under the supervision and direction
of the Regional Director in the stated voting group
to determine the question of representation. Upon
conclusion of the balloting the parties were
furnished a tally of ballots which showed that of ap-
proximately 156 eligible voters, 112 cast ballots for
the Union, 36 cast ballots against the Union, and 1
ballot was challenged. The challenged ballot was
not sufficient to affect the results of the election.
On August 20, 1969, Respondent filed timely ob-
jections to the election and to conduct affecting the
results of the election , alleging, in substance, the
following:
1 That employees were threatened and
coerced by representatives or members of the
Union in such a manner as to make a reasona-
ble choice in the election impossible.
2. That by threatening employees before
and after the election , conditions as required
by the Board for such election were not possi-
ble.
3. The Board did not consider all evidence,
improperly applied the law regarding the ap-
propriateness of the unit, and thereby allowed
an election to be held in an illegal unit.
In conclusion the Respondent respectfully
requested that the objections be investigated and
1049
sustained , and that a hearing be held on the above
allegations.
On September 18, 1969, the Regional Director
issued a Supplemental Decision and Certification of
Results of Election . In this decision the Regional
Director stated that an investigation of the Respon-
dent 's objections had been conducted , during
which all parties were afforded opportunity to sub-
mit and present evidence bearing on the issues.
After discussion of the evidence , the Regional
Director concluded in his decision that the Respon-
dent had raised no substantial or material issues of
fact or law which would warrant setting aside the
election. Consequently, the Regional Director over-
ruled the Respondent 's objections in their entirety
and certified that the Union may bargain for the
employees in the voting unit as part of the group of
employees which the Union currently represented.
Thereafter on October 13, 1969, the Respondent
timely filed with the Board in Washington, D.C , its
request for review of the Regional Director's Sup-
plemental Decision and Certification of Results of
Election, in which Respondent requested that the
election be set aside. On October 20, 1969, the
Union filed its opposition to Respondent's request
for review.
On November 4, 1969, the Board by telegraphic
order denied the Respondent's request for review
for the reason that "it raises no substantial issues
warranting review...."
The Unfair Labor Practice Case
On November 19, 1969, the Union filed the in-
stant unfair labor practice charge alleging that since
the certification the Respondent had refused and
continues to refuse to bargain with the Union.
On December 23, 1969, the Regional Director is-
sued a complaint and notice of hearing alleging that
the Respondent had committed unfair labor prac-
tices in violation of Section 8(a)( I) and (5) and
Section 2(6) and (7) of the Act by refusing to meet
and negotiate with the Union as the bargaining
representative of the employees in the certified
unit, though requested to do so since the certifica-
tion.
On January 8, 1970, the Respondent filed its
answer to the complaint in which it admitted cer-
tain allegations of the complaint and denied others.
The Respondent admitted that the Union
requested, and the Respondent refused, to meet
and negotiate on behalf of the involved employees.
In defense the Respondent asserted that the elec-
tion unit was not appropriate and that its objections
to the election had been improperly overruled.
Consequently, the Respondent denied the commis-
sion of unfair labor practices, and requested a hear-
ing before a Trial Examiner.
On January 26, 1970, counsel for the General
Counsel filed a Motion for Summary Judgment,
stating as grounds therefor that under the applica-
ble Rules and Regulations and decisions by the
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board the pleadings and attached exhibits detailing
the facts heretofore described establish that the
General Counsel is entitled to judgment as a matter
of law. On January 26, 1970, 1 issued an Order To
Show Cause on the General Counsel's motion,
returnable February 9, 1970, subsequently ex-
tended at the request of the Respondent to Februa-
ry 23, 1970. Under date of February 20, 1970,
Respondent filed its Response to the Order To
Show Cause accompanied by (1) application for
subpenas duces tecum, (2) application to take
depositions, and (3) motion to be granted leave to
require certain persons to answer interrogatories.
On the same date counsel for the General Counsel
filed a response and memorandum brief. No other
responses have been received.
On February 26, 1970, counsel for the General
Counsel filed an opposition to the Respondent's ap-
plications and motion, and on the same day I issued
a telegraphic order denying the Respondent's
requests. In accordance with the terms of the order,
written opinion explaining the basis of the order is
attached hereto as Appendix A.
Ruling on Motion for Summary Judgment
Counsel for the General Counsel contends that
all issues in dispute were decided by the Board in
the representation case and that he is therefore en-
titled to summary judgment as a matter of law.
The Respondent opposes summary judgment on
statutory and constitutional grounds and asserts
that due process requires that a full hearing be held
on all issues, including the issues raised in the
representation proceeding. In addition the Respon-
dent requests that before any judgment is rendered
on the motion for summary judgment, that it be
permitted to develop all material issues through
discovery procedures, including the production by
Board members and the Regional Director, pur-
suant to subpenas duces tecum, of certain documen-
tary material in the Board's files, and further by the
use of interrogatories and depositions, directed,
inter alia, to Board members and the Regional
Director. It is in connection with the latter request
that the Respondent filed the applications and mo-
tion for subpenas, depositions, and interrogatories
2 Krieger- Ragsdale & Company , Inc , 159 NLRB 490, enfd 379 F 2d 517
(C A 7), cert denied 389 U S 1041 See Pittsburgh Plate Glass Company
v N L R B , 313 U S 146, 162, NLRB Rules and Regulations, Sees
102 67(f) and 102 69(c)
' O K Van and Storage, Inc, 127 NLRB 1537, enfd 297 F 2d 74 (C A
5, 1961) See N L R B v Air Control Products of St Petersburg, Inc , 335
F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear, then a hearing is
a senseless and useless formality " See also N L R B v Bata Shoe Com-
pany, Inc , 377 F 2d 821, 826 (C A 4, 1967), cert denied 389 U S 917
there is no requirement, constitutional or otherwise, that there be a
hearing in the absence of substantial and material issues crucial to deter-
mination of whether NLRB election results are to be accepted for
referred to above and which are disposed of in Ap-
pendix A.
The basic position of the Respondent is that the
Board's unit determination was incorrect in the
representation case and, additionally, that a hearing
should have been held on its objections to the elec-
tion. These were issues which were considered and
decided by the Board in the representation
proceeding.
It is established Board policy, in absence of newly
discovered or previously unavailable evidence or
special circumstances, not to permit litigation be-
fore a Trial Examiner in a unfair labor practice case
of issues which were or could have been litigated in
a prior related representation proceeding.2 This
policy is applicable even though no formal hearing
on objections has been provided by the Board.
Such a hearing is not a matter of right unless sub-
stantial and material issues are raised.3 Respondent
does not claim to present any newly discovered or
previously unavailable evidence. No special circum-
stances are apparent.
Ordinarily this would dispose of the matter. How-
ever, the Respondent has raised several contentions
which require disposition.
Constitutionality of the Board's Procedures
The Respondent 's first contention, as stated in its
response to the Order To Show Cause, is that the
Board 's summary judgment procedure and Board
Rule 102.67(f) are unconstitutional. Rule
102.67( f) forbids relitigation in any related sub-
sequent unfair labor practice proceeding of any
issue which was or could have been raised in the
representation proceeding . I cannot sustain this
contention of the Respondent.
In the first place , I do not believe it appropriate
for me , as a Trial Examiner of the Board , to declare
procedures and rules established by the Board to be
unconstitutional. I must assume the constitutionali-
ty of the Board 's summary judgment procedures
and of Rule 102 .67(f).4
No court has held the Board 's summary judgment
procedures or Rule 102 .67(f) to be unconstitu-
tional . Indeed, Board orders based on summary
judgments have been enforced by most of the
purposes of certification "
' In the case of Rite-Form Corset Company, Inc , 75 NLRB 174, 176,
where the contention was made to the Board that a portion of the Act was
unconstitutional , the Board said
As an administrative agency of the Federal Government , it is inap-
propriate for the Board to pass upon questions regarding the constitu-
tionality of Congressional enactments Such questions will be left to
the courts In the absence of any court decision to the contrary, the
Board assumes that the Act as amended does not violate any provision
of the Constitution of the United States, as alleged by the petitioner
The Trial Examiner must accord similar recognition to the Board's Rules
and decisions
LYMAN PRINTING & FINISHING CO.
United States courts of appeals.5 I am cited to no
case in which a court has refused enforcement of a
Board order on the ground that the Board may not
use summary judgment procedure. On the contrary,
whenever the issue has been raised the courts have
uniformly upheld the Board's procedure.'
On this state of authority, it must be found that
the Board is authorized to utilize summary
judgment procedure in cases where there are no
substantial or material issues requiring an evidential
hearing. It has been further held that Board Rule
102.67(f) is reasonable. In the case of N.L.R.B. v.
Mar Salle, Inc., 425 F.2d 566, 572, enfg. 173
NLRB 429, the Court of Appeals for the District of
Columbia said of the rule:
This Board rule against relitigation of issues
is eminently reasonable.... It was there-
fore not a denial of due process to refuse to
hold a hearing in the unfair labor practice
proceeding, absent a showing of new or
previously unavailable evidence.
In several other summary judgment cases the
courts, while refusing enforcement of Board orders
(generally on the ground that, in the court's view,
objections to the election raised substantial and
material issues requiring hearing), specifically
upheld or assumed the authority of the Board to
issue summary judgments.'
The Determinations in the Representation Case
In its response to the Order To Show Cause the
Respondent attacks the Board decision in the
representation case as arbitrary and capricious.
s See , for example , the following cases, all decided within the last 4 years
N L R B v Rexall Chemical Co , 370 F 2d 363 (C A 3, 1967 ), Baumritter
Corporation v N.L R.B , 386 F 2d 117 (C A 1, 1967), N L R B v Union
Carbide Caribe, Inc , 423 F 2d 231 (C A 1, 1970), Polymers, Inc v
NLRB , 414 F 2d 999 (C A 2, 1969), cert denied 396 U S 1010,
NLRB v Olson Bodies, Inc, 420 F 2d 1187 (C A 2,1970), NLRB v
The Puritan Sportswear Corp , 385 F 2d 142 (C A 3, 1967), N L R.B v
Certified Testing Laboratories, Inc, 387 F 2d 285 (C A 3, 1967), N L.R B
v New Enterprise Stone and Lime Co , 413 F 2d 117 (CA 3, 1969),
N L R B v Carolina Natural Gas Corp , 386 F 2d 571 (C A 4, 1967), LTV
Electrosystems , Inc v N L R B, 388 F 2d 683 ( C A 4, 1968 ), N L R B v
Aerovox Corp , 390 F 2d 653 ( C A 4, 1968), N L R B v Rish Equipment
Co , 401 F 2d 597 (C A 4, 1968), N L R B v Union Brothers , 403 F 2d
883 (C A 4, 1968), N L R B v Aerovox Corp, 409 F 2d 1004 (C A 4,
1969), N L R B v Hevi-Duty Electric Company, 410 F 2d 757 (C A 4,
1969), N L R B v Newport Mining Corporation, 417 F 2d 625 (C A 4,
1969), Neuhoff Brothers , Packers, Inc v. N L R B , 362 F 2d 611 (C A 5,
1966), cert . denied 386 U S , 956 , Southwestern Portland Cement Co v
N.L R B , 407 F 2d 131 (C A 5, 1969), cert denied 396 U S 820,
N L R B v Capitan Drilling Company, 408 F 2d 676 ( C A 5, 1969 ), River-
side Press , Inc. v NLRB , 415 F 2d 281 ( C A 5, 1969 ), cert denied 397
U S 912 , N L.R B v Golden Age Beverage Company, 415 F 2d 26 (C A 5,
1969), N L R B v Crest Leather Manufacturing Corporation , 414 F 2d 421
(C A. 5, 1969 ), Pepperell Manufacturing Company v N.L R B , 403 F 2d
520 (C A 5 , 1968), cert denied 395 U S 922 ( 1969), NLRB v.
Singleton Packing Co , 418 F 2d 275 ( C A 5, 1969 ), Frito-Lay, Inc v
N.L.R B ., 422 F 2d 169 ( C A 5, 1970 ), Amax Aluminum Extrusion
Products, Inc v . N.L R B , 421 F 2d 394 (C A 5, 1970), N L R B v. Ten-
nessee Packers, Inc., 379 F 2d 172 (C A. 6, 1967), cert. denied 389 U.S
958, N L .R.B v Brush -Moore Newspapers , Inc, 413 F 2d 809 (C A 6,
1969), cert denied 396 U S 1002 , N L R B v Dean Foods Company, Inc,
1051
Thus, the Respondent asserts that the Board
ignored or refused to accept certain testimony by
company executives and departed from recognized
precedent in determining the appropriate unit, and
further that the Decision and Direction of Election
contained numerous discrepancies, inconsistencies,
and distortions of the record. This action of the
Board, the Respondent says, is of so serious a na-
ture as to raise material issues of genuine fact;
namely, "has the Board's conduct in this case been
arbitrary and capricious?" (Response to Order To
Show Cause, p. land "Why was such testimony
ignored9" (Resp se to Order To Show Cause, p.
14.)
In support of this position the Respondent has
summarized and analyzed certain of the Board's
findings and evidence in the representation record.
In addition the Respondent filed the applications
for subpenas, depositions, and interrogatories
referred to previously.
The Respondent has made no offer of any
specific new evidence to be added to the represen-
tation record. Its essential position is that record
was not properly evaluated by the Board. This is
not a contention which I am free to consider. The
Board has made a disposition of the representation
issues, which is final at this stage of the proceeding.
Under existing authority such disposition may be
reexamined only by the Board or by a court of ap-
peals in an action to enforce or review a Board
order under Section 10 of the Act. I therefore
respectfully refer the Respondent to that
procedure.
Other contentions of the Respondent raised in its
response to the Order To Show Cause, none of
421 F 2d 664 ( C A 6, 1970), N L.R B v National Survey Service, Inc,
361 F 2d 199 ( C A. 7, 1966 ), Macomb Pottery Company v N L R.B, 376
F 2d 450 ( C A 7, 1967 ), N L R B v Krieger-Ragsdale & Company, 379
F 2d 517 ( C.A 7, 1967 ), cert denied 389 U S 1041, Follett Corporation v
NLRB , 397 F 2d 91 ( C A 7. 1968 ), N L R B v Hollywood Brands, Inc,
398 F 2d 294 ( C A 7, 1968), N.L.R B v Montgomery Ward & Co, incor-
porated , 399 F 2d 409 ( C A 7, 1968 ), N L.R B v Red Bird Foods, Inc ,
399 F 2d 600 (C A 7, 1968 ), State Farm Mutual Automobile Insurance
Company v N.L R B ., 411 F 2d 356 (C A 7, 1969), cert . denied 396 U S
832, State Farm Mutual Automobile Insurance Co v. N.L R B, 413 F 2d
947 (C.A 7, 1969), cert denied 396 U S. 958 , N L R.B v Wacho Mfg
Co, 421 F 2d 848 (C A. 7, 1970 ), N L R B v. Aircraft Engineering Corp
[Seib Mfg. Co 1, 419 F 2d 1303 ( C A 8, 1970 ), N.L R B v E-Z Davies
Chevrolet , 395 F 2d 191 (C A 9, 1968), N L.R.B v Continental Nut Co ,
395 F .2d 830 ( C A 9, 1968); N L R B . v. Red-More Corp ., 418 F.2d 490
(C A 9, 1969 ), Cap Santa Vue, inc v N L R.B , 424 F 2d 883 (C A D.C ),
Campbell , et al., d/bla Valley Manor Convalescent Center v N L.R.B , 424
F 2d 883 (C A D C., 1970); N.L R B v. Mar Salle , Inc., 425 F 2d 566
(C A D C , 1970), Amalgamated Clothing Workers [Winfield Mfg. Co.) v
N.L.R.B , 424 F .2d 818 (C A D.C., 1970)
"See, for example, the following cases cited in fns 5 or 7 Union Carbide
Carihe, Inc , Baumritter Corp , Certified Testing Laboratories , Inc , Puritan
Sportswear Corp , Carolina Natural Cos Corp , LTV Electrosystems, Inc ,
AerovoxCorp , (both cases) Union Brothers, Clement-Blythe Companies,
Caption Drilling Co, Crest Leather Mfg Corp, Frito-Lay, Inc, Amalga-
mated Clothing Workers (Winfield Mfg Co ), Brush-Moore Newspapers,
Inc, E-Z Davies Chevrolet, Red-More Corp , Mar Salle, Inc , Follett Corp
7 See, for example, N L R B v Chelsea Clock Company, 41 1 F 2d 189
(C A I , 1969), N L R B v Ortronix, Inc , 380 F 2d 737 (C A 5, 1967),
N L R B v Clement-Blythe Companies, 415 F 2d 78 (C A 4, 1969), Na.
tional Cash Register Company v N L R B, 415 F 2d 1012 (C A 5, 1969)
1052 DECISIONS OF NATIONAL
which are found to be sustained, are disposed of in
the opinion attached as Appendix A.
It is found that all material outstanding issues
raised by the pleadings have been resolved by the
Board. It is further found that the Respondent has
not established the existence of any controverted
matter cognizable by the Trial Examiner and
requiring an evidential hearing. On such a state of
the record the Motion for Summary Judgment is in
order and is granted.
Upon the basis of the record before me I make
the following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation engaged
in the manufacture, printing, and finishi 'of textile
fabrics at a plant in Lyman, South Caro tna.
During the past 12 months, whi h period isis
representative of all times material herein, Respon-
dent received raw materials valued in excess of
$50,000 at its Lyman, South Carolina, plant
directly from points outside the State of South
Carolina. During the same period of time, Respon-
dent manufactured, sold, and shipped finished
products valued in excess of $50,000 directly to
points outside the State of South Carolina
Respondent is an employer in commerce within
the meaning of the Act.8
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
The Regional Director, on behalf of the Board,
having certified on September 16, 1969, that it ap-
peared from the tally of ballots that the Union had
been designated by Respondent's employees in the
categories described below, and the Regional
Director having further certified that the Union
may bargain for the employees in such categories as
part of the group of employees which the Union
currently represents, it is now found that at all
times since September 18, 1969, by virtue of Sec-
tion 9(a) of the Act, the Union has been the exclu-
sive representative of all the employees in said
categories with respect to rates of pay, wages, hours
The findings in this paragraph are from the Board 's Decision and
Direction of Election The findings in the two preceding paragraphs are
from pars 2 and 3 of the complaint , which the answer admits However,
the answer denies allegations in par 4 of the complaint to the effect that
the Respondent is now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec 2(6) and (7) of
the Act The basis for, or the significance of, the denial of par 4 of the
complaint is not disclosed The question is not discussed in the Respon-
dent's Response to the Order To Show Cause on the Motion for Summary
LABOR RELATIONS BOARD
of employment, and other terms and conditions of
employment.
All employees of the Printing Department,
or Print Room , of the Employer's plant at
Lyman, South Carolina, excluding journeymen
and apprentice machine printers, office clerical
employees, professional and technical em-
ployees, all other employees, guards, and su-
pervisors as defined in the Act.
Though requested by the Union on or about
November 12, 1969, to negotiate a collective-bar-
gaining agreement for those employees, the
Respondent declines to recognize the Union as
their collective-bargaining representative, thereby
refusing to bargain collectively in violation of Sec-
tion 8(a)(5) of the Act, and interfering with,
restraining, and coercing employees in violation of
Section 8(a)(1) of the Act.
The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
Upon the foregoing findings and conclusions,
pursuant to Section 10(c) of the Act, I recommend
that the Board issue the following:
ORDER
A. For the purpose of determining the duration
of the certification, the initial year of certification
shall be deemed to begin on the date the Respon-
dent commences to bargain in good faith with the
Union as the recognized exclusive bargaining
representative of the employees involved.'
B. Lyman Printing and Finishing Company, a
Division of M. Lowenstein & Sons, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with
Machine Printers and Engravers Association of the
United States as the exclusive collective-bargaining
representative of the following employees
All employees of the Printing Department,
or Print Room, of the Employer's plant at
Lyman, South Carolina, excluding journeymen
and apprentice machine printers, office clerical
employees, professional and technical em-
ployees, all other employees, guards, and su-
pervisors as defined in the Act.
(b) Interfering with the efforts of the Union to
negotiate for or represent employees as collective-
bargaining representative.
Judgment This may suggest that the point is no longer pressed In any
event, the Board 's determination concerning it is the law of the case at this
puncture Hence the finding
' The purpose of this provision is to insure that the employees will be ac-
corded the services of their selected bargaining agent for the period pro-
vided by law See Mar-Jac Poultry Company, Inc , 136 NLRB 785, Com-
merce Co , d/bla Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600
(C A 5, 1964), cert denied 379 U S 817, Burnett Construction Company,
149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10, 1965)
LYMAN PRINTING & FINISHING CO.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with
Machine Printers and Engravers Association of the
United States as the exclusive representative of all
employees in the categories described above, with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment, and embody in a signed agreement any un-
derstanding reached.
(b) Post at its place of business in Lyman, South
Carolina, copies of the attached notice marked
"Appendix B."10 Copies of said notice, on forms
provided by the Regional Director for Region 11,
being duly signed by an authorized representative,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by the
Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region II,
in writing, within 20 days from the date of the
receipt of this Decision, what steps the Respondent
has taken to comply herewith."
APPENDIX A
Opinion Revoking Subpenas Duces Tecum and
Denying Applications To Take Depositions and To
Require Interrogatories
Along with its response to the Order To Show
Cause on the Motion for Summary Judgment, the
Respondent has filed three documents, (1) applica-
tion for subpenas duces tecum, (2) application to
take depositions, and (3) motion to be granted
leave to require certain persons to answer written
interrogatories.
On February 26, 1967, counsel for the General
Counsel filed an opposition to the Respondent's ap-
plications and motion, with an alternative request
to revoke the subpenas if issued. On the same day I
'" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
" In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 11, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
1053
issued a telegraphic order denying Respondent's
applications and motion, and stating that a written
opinion would be contained in the Trial Examiner's
Decision disposing of the Motion for Summary
Judgment.
The Subpenas Duces Tecum
In its response to the Order To Show Cause the
Respondent frankly avows that the various requests
involve discovery.
The subpenas duces tecum requested are directed
to Frank W. McCulloch, Gerald A Brown, Sam
Zagoria, and Reed Johnston. They require the
production,
for the Respondent's inspection and copy-
ing, any and all affidavits, memoranda, cor-
respondence, investigation reports or other
documents used by the above-named persons
during the related representation proceedings
in this case.
Since the issuance of subpenas is mandatory under
Section 11 of the National Labor Relations Act,
subject to revocation thereafter, the subpenas are
to be deemed issued, and the question is whether
they should be revoked.
Frank W. McCulloch is the Chairman of the Na-
tional Labor Relations Board, and Gerald A. Brown
a member of the Board. Sam Zagoria is a former
member of the Board whose term expired on
December 16, 1969. Reed Johnston is the Board's
Regional Director for Region 11. The three Board
members constituted the panel which issued the
Decision and Direction of Election of July 14,
1969. The Regional Director issued the Supplemen-
tal Decision and Certification of Results of Election
dated September 18, 1969. The ground stated by
the Respondent for the application is that,
Such subpoenas are necessary in order to as-
sure to the Respondent its constitutional right
to demonstrate and develop any and all
genuine issues of material fact which will
necessitate a denial of General Counsel's Mo-
tion for Summary Judgment and the granting
of a full hearing on whether the Respondent
has violated the Act as charged.
Assuming its existence , the material described
constitutes part of the Board 's official records, and
is not automatically securable unless it is part of the
representation case record (see fn. 1, TXD), or
matter available for public inspection under the
provisions of the Administrative Procedure Act.
Neither exception is applicable here.
Section 102.118 of the Board's Rules and Regu-
lations and Statements of Procedure, Series 8, as
amended, inter alia , prohibits Board personnel, in-
cluding Board Members and Regional Directors,
from producing any records of the Board,
. . . whether in answer to a subpena, sub-
poena duces tecum, or otherwise, without the
written consent of the Board or the chairman
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Board if the official or document is sub-
ject to the supervision or control of the Board;
or the general counsel if the official or docu-
ment is subject to the supervision or control
of the general counsel.
No showing is made- that the Respondent has
requested the General Counsel or the Chairman of
the Board for consent to the production of the
material. Absence of such a request is sufficient
ground for denying compulsory production of
matter of this character, for upon proper showing
consent may be given. Touhy v. Ragen, 340 U.S.
462 (1951); N.L.R.B. v. Jamestown Sterling Corp.,
211 F.2d 725 (C.A. 2, 1954); Davis v. Braswell,
363 F.2d 600 (C.A. 5, 1966); Harvey Aluminum
(Inc.) v. N.L.R.B., 335 F.2d 749 (C.A. 9, 1964);
North American Rockwell Corporation v. N.L R.B ,
389 F.2d 866 (C.A. 10, 1968).
In addition, the Respondent has not demon-
strated the materiality or essentiality of the material
sought. The statement in the application that the
subpenas are necessary to develop any material fac-'
tual issues requiring the denial of the Motion for
Summary Judgment and the granting of a hearing,
is too general in nature to warrant compulsory
production of the documents. Treating the sub-
penas as issued, they are now revoked. Follett
Corp., 164 NLRB 378.
In any event, material of this character is "con-
fidential and privileged against disclosure," unless a
hearing is shown to be required. The burden is on
the Respondent to make such a showing, and not
having done so, the subpenas are to be quashed. In-
tertype Company v. N.L.R.B., 401 F.2d 41, 45
(C.A. 4), cert. denied 393 U.S. 1049. See also
N.L.R.B. v. Truck Drivers and Helpers, Local Union
282, Teamsters, 70 LRRM 2793 (C.A 2, 1969,
order on motion). The discovery considerations ad-
vanced by the Respondent are discussed infra.
The Application To Take Depositions and the
Motion To Require Interrogatories
In the application for depositions the Respondent
requests the depositions of Board Chairman Mc-
Culloch and Members Brown and Zagoria and of
the Respondent's general manager, J. F.
Magarahan . The interrogatories are directed to the
same Board Members and to the Regional Director.
The basis asserted for requesting the depositions
of the Board Members is that,
It is expected that [they ] would testify as to
the reasons that they arbitrarily and capri-
ciously ignored certain facts in ti-le record and
substantially departed from established Board
precedent by their finding that a single -depart-
ment, unit of printing department employees is
appropriate.
With respect to the deposition of Mr. Magarahan,
the application avers that,
It is expected that this witness would testify
as to the instances in which the Board Panel
ignored and/or distorted his testimony in
reaching the above -mentioned Decision and
Direction of Election.
The basis asserted for the interrogatories is
... so that the Respondent may be allowed to
exercise its constitutional right to discover and
develop any and all genuine issues of material
fact which will necessitate a denial of the
General Counsel's Motion for Summary
Judgment and the granting of a full trial on the
issue of whether the Respondent has violated
the Act as charged.
The request for depositions and interrogatories
must be denied.
(1) Section 102.118 of the Board's Rules, inter
alia, prohibits a Board Member or a Regional
Director from testifying in any proceeding with
respect to "any information, facts, or other matter
coming to his knowledge in his official capacity ...
without the written consent of the Board or the
chairman of the Board ...." I consider this provi-
sion of the rule to be applicable to depositions and
interrogatories. Here again the Respondent makes
no showing that it has requested consent for the
Board officials to testify. As with demands for the
production of Board records, a request for and a
denial of consent is a prerequisite to consideration
of the substantive merit of the application for
depositions and interrogatories. The failure to make
such request thus requires denial of the application
in this respect.
(2) Furthermore, the depositions and interroga-
tories are unnecessary for the establishment of the
Respondent's purpose-if the purpose be assumed
to have merit. For if, as the Respondent says, the
Board "arbitrarily and capriciously ignored certain
facts in the record" or "departed from established
Board precedent," the Board's decision and the
record will demonstrate it.
(3) In addition, it is apparent from its statements
of purpose that what the Respondent proposes with
respect to the depositions and interrogatories
directed to the Board officials is, at least in part, to
cross-examine them in order to probe the mental
processes by which they reached their conclusions.
This the Respondent may not do. What the
Supreme Court said in the Morgan cases concern-
ing adjudicative action by the Secretary of Agricul-
ture in that proceeding is applicable to the Board
officials here: ". . . it was not the function of the
court to probe the mental processes of the Secreta-
ry in reaching his conclusions if he gave the hearing
which the law required." (Morgan v. U.S., 304 U.S.
1, 18 (1938).) In a later opinion, involving another
phase of the case, the Supreme Court specifically
held that it was improper for the district court to
authorize the taking of the deposition of the Secre-
tary concerning the manner in which he reached his
conclusions in the case. The Court said that "the
short of the business is that the Secretary should
LYMAN PRINTING & FINISHING CO.
never have been subjected to this examination... .
Just as a judge cannot be subjected to such a scru-
tiny ... so the integrity of the administrative
process must be equally respected." (Morgan v.
U.S., 313 U.S. 409, 422 (1941).) See also Davis v
Braswell Motor Freight Lines, Inc., 363 F.2d 600,
604 (C.A. 5, 1966), where the court of appeals,
quoting the opinion in the 1941 Morgan case, or-
dered the quashing of a subpena commanding a Re-
gional Director of the Board to testify and to
produce certain documents in a civil suit in a U.S.
district court, because, "The subpoena here at-
tempts to examine the processes and reasoning of
the Board and the General Counsel's office in
reaching their conclusions prior to their official
publication."
We turn now to the discovery considerations ad-
vanced by the Respondent.
Discovery
I.
It will be well at the outset to define the precise
question presented, which is the right to discovery
in NLRB proceedings before the Board, not the
right to discovery in NLRB cases before the courts.
For discovery may be applicable in judicial situa-
tions involving the NLRA which are subject to the
discovery provisions of the Federal Rules of Civil
Procedure, as distinguished from proceedings be-
fore the Board-which are administrative in nature.
Among these judicial proceedings are contempt ac-
tions involving alleged disobedience of court
decrees involving Board orders (see, for example,
Olson Rug Company v. N.L.R.B., 291 F 2d 655
(C.A. 7, 1961); N.L.R.B. v. Schill Steel Products,
Inc., 408 F.2d 803 (C.A. 5, 1969); N.L.R.B. v.
Truck Drivers and Helpers Local Union 282, IBT, 70
LRRM 2793 (C A. 2, order on motion Feb. 18,
1969); cf. Schauffler v. Local 1291 ILA, 189
F.Supp. 737 (1960)), and injunctive proceed-
ings (see, for example, Sperandeo v. Milk Drivers
Local 537, 334 F.2d 381 (C.A. 10, 1964); Fusco v.
Kaase, 205 F.Supp. 459 (D.C. Ohio, 1962);
Meter v. Minnesota Mining and Manufacturing
Company, 273 F.Supp. 659 (D.C. Minn., 1967)).
Those cases are therefore not-authorities on the
issue here.
For almost two decades the Board has con-
sistently held that the discovery provisions of the
Federal Rules of Civil Procedure are not applicable
to proceedings before the Board.a
a/ See, for example, Del E Webb Construction Company, 95 NLRB
377, Miami Coca-Cola Bottling Company, 108 NLRB 456, fn 2, Balti-
more Steam Packet Company, 120 NLRB 1521, 1522, Chambers Man-
ufacturing Corp , 124 NLRB 721, 722, Sealtest Southern Dairies, 126
NLRB 1223, fn 3, Plumbers and Steamfitters Union Local 100, 128
NLRB 398, 400, Edwards Trucking Company, 129 NLRB 385, fn I,
Krieger-Ragsdale & Company, Inc , 159 NLRB 490, 495, W H Sack-
ett, d/bla Sackett Transportation, 169 NLRB 346
1055
This view has been sustained by various courts of
appeals. Thus, in 1951, in the case of N.L.R.B. v.
Globe Wireless, Ltd, 193 F.2d 748, 75 1, in uphold-
ing a Trial Examiner's refusal of subpenas for tak-
ing the depositions of complaining witnesses prior
to hearing, the Court of Appeals for the Ninth Cir-
cuit said, "There is no provision in the [National
Labor Relations] Act authorizing the use of the
discovery procedure." The Ninth Circuit has also
ruled that without such authorizing legislation, a
Federal administrative agency may not establish
discovery procedures. Federal Maritime Commis-
sion v. Anglo-Canadian Shipping Co., 335 F 2d 255
(C.A. 9, 1964).
Similarly, other courts of appeals have held that
the discovery provisions of the Federal Rules are
not applicable to the National Labor Relations Act.
See, for example, Texas Industries, Inc. v. N.L.R.B.,
336 F.2d 128, 132-133 (C.A. 5, 1964) ("...
Board's rules do not permit general prehearing
discovery of such statements [of witnesses] ....
The validity of these rules on their face has been
upheld...."); Movie Star, Inc., 361 F.2d 346, 352
(C.A. 5, 1966) (contention that respondents were
denied due process by refusal of pretrial discovery
is "without merit"); Raser Tanning Company v.
N.L R.B, 276 F.2d 80, 83 (C.A. 6, 1960) ("Ad-
ministrative hearings of the Labor Board are
governed by the Administrative Procedure Act
rather than the Federal Rules of Civil Procedure");
N.L.R.B. v. Vapor Blast Mfg. Co., 287 F.2d 402,407
(C.A. 7, 1961) (Sec. 10(b) of the Act ". . . does
not require the Board to adopt the entire discovery
procedure contemplated by the Federal Rules of
Civil Procedure"). It has also been said that the
Federal Rules are inapplicable to administrative
proceedings.'
However, some of the court decisions cited
above, and several other court decisions, suggest
that the Board has authority to establish discovery
procedures Indeed, the Fifth Circuit has held that
Sections 102.30 and 102.35 of the Board's Rules
authorize discovery through the use of pretrial
depositions of the General Counsel's witnesses.
N.L.R.B. v. Safway Steel Scaffolds Company, 383
F.2d 273 (C.A. 5); N L.R.B. v. Miami Coca-Cola
Bottling Company, 403 F.2d 994 (C.A. 5, 1968). In
those cases the court found error, not prejudicial,
in statements by a Trial Examiner and a Regional
Director, respectively, made in the course of refus-
b/ Montgomery, Discovery in Federal Administrative Proceedings, 16
Stanford L R 1035, fn 11 ( 1935) "The Administrative Procedure Act
does not provide for discovery, and the Federal Rules of Civil Procedure do
not apply to administrative proceedings "
c/ Among these decisions are Storkline Corp v N L R B 330 F 2d 14
(C A 5, 1964), Texas Industries, Inc , supra, Winn-Dixie Storer, Inc v
N I. R B , 413 F 2d 1008 (C A 5, 1969), Trojan Freight Lanes, Inc v
N L R B, 356 F 2d 947 (C A 6, 1966), Vapor Blast Mfg Co, supra, Elec-
tromec Design Co v N L R B , 409 F 2d 631 (C A 9, 1969), North Amer-
ican Rockwell Corporation v N L R B, 389 F 2d 866 (C A 10, 1968)
Other cases to the same effect, cited by the Respondent, are discussed in-
fra
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ing to authorize pretrial depositions, to the effect
that there was no provision for discovery in Board
procedure.' In the relatively recent Electromec
Design case, supra, the Ninth Circuit, citing the Saf-
way decision and Board Rule 102 30, stated that it
was within the discretion of the Trial Examiner
whether to permit depositions to be taken prior to
hearing. The court said that,
Since there is no specific provision in the
National Labor Relations Act for discovery
procedure, N.L.R.B v. Globe Wireless Ltd.,
193 F 2d 748, 751 (9 Cir. 1951), it is the
responsibility of the Board to formulate its
own rules as to when discovery is available to a
party, N L.R.B. v. Vapor Blast Mfg Co., 287
F.2d 402, 407 (7 Cir. 1961).
There is no apparent suggestion in the opinion to
the effect that the Electromec decision represents a
modification of the Globe Wireless and Federal
Maritime cases.'
IL
The sum of the foregoing authorities appears to
be the following: (I) the discovery provisions of the
d/ The Board has held that its procedures make no provision for dis-
covery depositions Walsh-Lumpkin Wholesale Drug Company, 129
NLRB 294 296
e/ It has been recommended that discovery should be made applicable
to Federal Administrative proceedings In 1955 a task force of the
Hoover Commission (Commission on Organization of the Executive
Branch of the Government) made a recommendation to the effect that
the Administrative Procedure Act be amended to permit discovery in
conformance with the Federal Rules (Task Force Report on Legal
Services and Procedure, March 1955, p 197 ) in 1962 the Adminis-
trative Conference of the United States recommended that each agency
adopt discovery rules "to the extend and in the manner appropriate
for its proceedings " (Final Report, Administrative Conference, De-
cember 15, 1962, Recommendation No 30) Five administrative agen-
cies have enacted discovery rules, or rules permitting the taking of
pretrial depositions for discovery purposes the Federal Trade Com-
mission (16 C F R 3 33), the Federal Communications Commission
(47 C F R 1315), the Federal Maritime Commission (46 C F R 502)-
the latter under statutory authority enacted following the Anglo-Ca-
nadian decision of the Ninth Circuit, 81 Stat 544, 46 U S C 826-
Federal Aviation Agency (14 C F R 13 53), and the Bureau of Land
Management , Department of Interior (43 C F R 1850 0) The Interstate
Commerce Commission is considering adoption of discovery rules
(Consultant's Report, Administrative Conference of the United States,
Committee on Compliance and Enforcement Proceedings, Discovery in
Agency Adjudication, January 1970 (pp 2 and 24) ) In California discov-
ery is authorized by statute in state administrative proceedings Cahforma
Government Crxle, 11507 1 hough the Federal Rules of Civil Procedure
authorize extensive discovery, the Federal Rules of Criminal Procedure do
not The Jencks Act (18 U S C 3500) permits the securing of statements of
government witnesses in criminal cases after they have testified, to the ex-
tent related to the witness' testimony Sec 16 of the Federal Rules of
Criminal Procedure does not further authorize the discovery or inspection
of statements by government witnesses or prospective government wit-
nesses, or ( with limited exception) authorize discovery or inspection of
"reports, memoranda, or other internal government documents made by
government agents in connection with investigation or prosecution of the
case "
fhe above facts are noted as a matter of information only 1 express no
opinion on what the policy or law should he I address myself only to ascer-
taining what they are
Federal Rules of Civil Procedure are not applicable
to administrative proceedings before the Board, (2)
the Board' s Rules do not permit discovery in the
sense of the Federal Rules; (3) the Board's action
in denying discovery is subject to review only to the
extent due process is involved, (4) the courts ap-
pear to be divided on the question as to whether
the Board has established, or has authority to
establish, discovery procedures.
We turn now to authorities cited by the Respon-
dent in support of the proposition that it is entitled
to discovery, "in order to give it the opportunity to
raise and develop all material issues ... for the pur-
pose of developing and amplifying the record."
(Response to Order To Show Cause, p. 16 ) These
authorities are Rule 56(c) of the Federal Rules of
Civil Procedure and a number of court decisions.
With respect to Rule 56(c), the Respondent
points out that the rule requires the issuance of a
summary judgment "forthwith, if the pleadings,
depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact. . . ." (Emphasis supplied.) The
Respondent urges that it follows from this that
depositions and interrogatories should be available
in NLRB summary judgment procedure. In my
view, Rule 56(c) neither requires nor authorizes
the use of depositions and interrogatories in NLRB
summary judgment proceedings for the purpose of
securing discovery.
In the first place the Board's summary judgment
procedure is not founded in the Federal Rules of
Civil Procedure, but in the Board's rules and deci-
sions. Krieger-Ragsdale & Company, Inc., 159
NLRB 490, 495, enfd. 379 F 2d 517 (C.A. 7,
1967), cert denied 389 U.S. 1041 (1968).
In the second place, the portion of Rule 56(c)
quoted above does not purport to prescribe the
conditions under which depositions and answers to
interrogatories may be secured. It is rather a
direction to consider such material when it is in the
record. See Moore's Federal Practice 56.02(b), and
1963 note of Advisory Committee on Rules of Civil
Procedure referred to in Moore's 56.01(12) at pp
2020-2 1. 1 do not apprehend that the Board's prac-
tice is to the contrary If depositions allowable
under Section 102.30 or consented to under Sec-
tion 102.118 of the Board's Rules, or answers to in-
terrogatories similarly secured, are in the record of
a Board summary judgment proceeding, it is to be
assumed that they will be considered by the Board.
It is therefore concluded that Federal Rule 56(c)
does not provide authority for discovery in NLRB
proceedings.
The decisions referred to by the Respondent as
supporting its demand for discovery are the follow-
ing: N.L.R B. v. Southern Materials Co , Inc., 345
F.2d 240, 244 (C.A. 4, 1965), Firestone Synthetic
Frito Company v. N. L. R. B., 330 F2d 458, 465
(C A. 4, 1967); American Boiler Manufacturers As-
sociation v N.L.R.B, 366 F.2d 823 (C.A. 8, 1966);
LYMAN PRINTING & FINISHING CO.
Frito Company v. N.L.R.B., 1330 F2d 458, 465
(C.A. 9, 1964); Associated Home Builders of the
Greater East Bay, Inc. v. N.L.R.B , 352 F.2d 745
(C.A. 9, 1965). I do not interpret those decisions as
requiring the establishment of discovery procedures
by the Board
In the Southern Materials case the court said the
following:
The brief filed in behalf of the Board does
not reveal the Board's position with respect of
the refusal to allow pre-hearing discovery. In
view of our disposal of the other questions, it
becomes unnecessary that we pass upon this
issue except to observe that the Board, acting
in a quasi judicial capacity as it does, should
freely permit discovery procedure in order that
the rights of all parties may be properly pro-
tected.
In the Firestone case , in rejecting an argument of
the Board to the effect that the burden was on the
respondent there to call other employee witnesses
to corroborate the Respondent's version of a
disputed conversation, the court said (p. 214):
We think otherwise . Firestone had attempted
unsuccessfully to use discovery procedures, in-
cluding interrogatories , to learn the names of
Board witnesses . If the Labor Board may some-
times have sufficient reasons for delimiting
discovery in order to protect employees from
company reprisal, it must accept the burden of
producing more evidence than might otherwise
be necessary. It is basically unfair for Labor
Board counsel to argue to this court that the
Company should have produced witnesses
whose names were unknown to the Company
because of a policy decision of the Board See
N.L.R.B. v. Southern Materials Co., 345 F.2d
240, 244 (4th Cir. 1965).
In addition, in connection with a finding of the
Board as to an instance of alleged company threats
in the Firestone case, which were not included in
the complaint, the court said (p. 215):
We said in N.L R.B. v. Threads, Inc., 308 F.2d
1, 9 (4th Cir. 1962), "evidence without a sup-
porting allegation cannot serve as the basis of a
determination of an unfair labor practice."
Even so, we are reluctant to inject procedural
technicalities into administrative proceedings.
There would be less occasion for our doing so
if trial examiners would permit, within protec-
tive limitations, reasonable discovery
procedures.
The language of the Southern Materials opinion ap-
pears to be advisory in character, rather than moni-
tory-a conclusion which the language from
Firestone, though somewhat more admonitional,
seems to reinforce The court is, of course, the best
authority as to how its opinions are to be construed,
but I do not interpret them as holding that the
Board must establish discovery in unfair labor prac-
tice proceedings before the Board.
Thus I note that in a Fourth Circuit case sub-
1057
sequent to the Southern Materials and Firestone
cases, in which the court could have ruled that
discovery is required, it did not do so. This is the
case of LTV Electrosystems cited in footnote 1,
TXD. There the Board, reversing the Trial Ex-
aminer, denied the respondent's requests for inclu-
sion in the record of material similar to that sought
in the subpenas here. The issue was presented to
the court on cross-petitions for review and enforce-
ment of the Board's order. See, for example, the
Board's brief to the court in the LTV case, p. 2, fn.
2, and p. 28, fn 16, discussing the point. However,
the court's opinion does not refer to the issue.
It would thus appear that the Southern Materials
and Firestone Synthetic cases are not to be con-
strued as requiring the Board to establish discovery.
At most they would seem to indicate, contrary to
the Globe Wireless and other cases, that the Board
is authorized to establish discovery procedures and
in the court's opinion should do so However, as we
have seen, the Board has not done so, and with all
respect to the court, I am compelled to observe that
I have no authority to do it for them.'
The other cases cited by the Respondent (Frito,
American Boiler , and Home Builders ) are inapplica-
ble and are not authority respecting discovery.
Frito is the basic case, the other two cite Frito as
authority in similar circumstances, and follow it.
Section 101.10 of the Board 's Rules, consistent
with a similar provision in Section 10(b) of the
NLRA, provides, in part, that in unfair labor prac-
tice hearings before the Board,
The rules of evidence applicable in the district
courts of the United States under the Rules of
Civil Procedure adopted by the Supreme Court
are, so far as practicable, controlling.
In Frito the Ninth Circuit Court said in reference
to that provision of the Board's Rules:
The Federal Rules of Civil Procedure are not
rules of evidence, but of procedure pursuant to
which evidence may be taken. The provision
noted must be taken to mean that the
procedure to be followed in hearings before
the Board shall be controlled as far as practica-
ble by the Federal Rules of Civil Procedure.
This language, however, had nothing to do with
discovery. The issue to which the court's statement
was directed was whether the Board has authority
to decide material unpleaded issues not sponsored
by the General Counsel, where evidence on the
matter was admitted without objection. In holding
that the Board had such authority, the court
f/ A Trial Examiner is required to follow the Board's precedents and
policies until overruled by the Board or the Supreme Court (Prudential
Insurance Coinpanr of Anierica, 119 NLRB 768, Ranca, Inc , 109
NLRB 998, Lenz Cnmpanv, 153 NLRB 1399), even though there
may be contrary authority in the court of appeals (Iona Beef Pacers,
Inc, 144 NLRB 615, Teamsters Local 390 (U & ME Transfer), 119
N LRB 852, Novak LogLoig Company, 119 N LRB 1573 S(herrer and
Davisson Logging Company, 119 NLRB 1587)
1058 LYMAN PRINTING & FINISHING CO.
referred, inter alia, to Rule 15(b) of the Federal
Rules That rule provides, in part, that, "When is-
sues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be
treated in all respects as if they had been raised in
the pleadings," and the complaint may be amended
to conform to the evidence in such respect. In that
connection the court noted Section 101 10 of the
Board 's Rules quoted above. With Frito as authority,
the Respondent says that, there being no showing
that discovery is clearly impracticable here, it
should be permitted.
This contention, no doubt inadvertently, over-
looks the fact that the Ninth Circuit is the court
which held that there is no provision in the Na-
tional Labor Relations Act authorizing discovery.
The language in the Frito opinion must be in-
terpreted in that context It seems clear to me that
a holding that it is practicable for the National
Labor Relations Board to follow a provision of the
Federal Rules authorizing findings on unpleaded
but litigated issues, is not authority for the proposi-
tion that it is equally practicable to follow such
rules in respect to discovery. To adopt the Respon-
dent's view requires an assumption that the Ninth
Circuit in the Frito case was consciously overrul-
ing its prior decision in Globe Wireless, Ltd. sub
silencio I find nothing in the case to warrant such
an assumption. Since the American Boiler and the
Home Builders cases involve substantially the same
issue as Frito, I do not interpret them as constitut-
ing authority on the issue of discovery.
It thus appears that discovery is inapplicable in
the instant situation, and the Respondent's request
therefor must consequently be denied.
But even if it be assumed , for the purposes of
discussion , that unfair labor practice proceedings
before the NLRB are subject to the discovery
provisions of Federal Rules of Civil Procedure, it is
by no means clear that the Respondent 's requests
should be granted . For, under Rule 26 of the
Federal Rules , deponents in discovery proceedings
may not be examined regarding privileged matter.
See also N . L.R.B. v. Truck Drivers and Helpers,
Local Union 282, Teamsters , 70 LRRM 2793 (C.A.
2, 1969 , order on motion).
In the light of the purpose of the Respondent's
requests and the nature of the material and infor-
mation sought , the matter seems clearly privileged
under the principles of the Intertype and Morgan
cases. While Federal Rule 26(b) states, in sum, that
testimony inadmissible at the trial may be secured if
it appears " reasonably calculated to lead to the
discovery of admissible evidence," it cannot be said
that the testimony sought by the Respondent here is
of such character.
In addition, Rules 30 and 31 of the Federal Rules
of Civil Procedure vest in the judge authority to
order that depositions and interrogatories not be
taken, or taken only under certain conditions, or
that the scope of examination be limited as to sub-
ject matter.
In my view, in the light of the circumstances of
the case, depositions and interrogatories should not
be ordered to be taken, even if discovery is deemed
applicable.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Machine Printers and Engravers Associa-
tion of the United States as the exclusive col-
lective-bargaining representative of all the fol-
lowing employees-
All employees of the Printing Department,
or Print Room, of our plant at Lyman,
South Carolina, excluding journeymen and
apprentice machine printers, office cleri-
cal employees, professional employees,
and technical employees, all other em-
ployees, guards, and supervisors as defined
in the Act.
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees
as exclusive collective-bargaining representa-
tive.
WE WILL bargain collectively with the Union
as the exclusive collective-bargaining repre-
sentative of the employees in the categories
listed above and, if an understanding is reached,
we will sign a contract with the Union.
LYMAN PRINTING AND
FINISHING COMPANY, A
DIVISION OF M.
LOWENSTEIN & SONS
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301
North Main Street, Winston-Salem, North Carolina
27101, Telephone 919-723-9211.