RESPONDENT: National Labor Relations Board
LOCATION: Edward Coolidge's Home
DOCKET NO.: 370
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the First Circuit
CITATION: 401 US 137 (1971)
ARGUED: Jan 18, 1971 / Jan 19, 1971
DECIDED: Feb 23, 1971
Facts of the case
Media for Magnesium Casting Company v. National Labor Relations BoardAudio Transcription for Oral Argument - January 19, 1971 in Magnesium Casting Company v. National Labor Relations Board
Audio Transcription for Oral Argument - January 18, 1971 in Magnesium Casting Company v. National Labor Relations Board
Warren E. Burger:
We’ll hear arguments next in number 370 Magnesium Casting Company against the Labor Board.
Mr. Chandler you may proceed whenever you’re ready.
Mr. Chief Justice, may it please the Court.
It seems to be a relatively simple issue that we have because we stated it is whether or not the National Labor Relations Board may enforce a decision and order in an unfair labor practice case which is based upon evidence in the transcript that it has never considered or reviewed and based upon a conflicting testimony by witnesses that the Board or its Trial Examiner neither heard or observed.
The background of this case involves the filing of a petition for an election by a union and a so-called representation case called in our case and appellants of the trade as distinguished from a “C” case which is unfair labor practice charge.
And the hearing was held, conflicting evidence was presented and one of the questions involved particularly whether or not the assistant foremen were supervisors.
The question involves some questions of credibility because there was conflicting testimony.
And this question as to supervisors became critical because the company had evidence that an employee that it contended was a supervisor was acting as an agent for the Union in soliciting authorization cards for the Union.
This would taint the interest of the Union because the Board has held that the solicitation of cards by an employee or representative is an unfair labor practice.
It is coercive and it does not permit of a free choice by employees of that collective bargaining agent.
One must bear in mind that in that case under the rules and regulations of the Board and under the Labor Management Relations Act, a representation case is called an investigation and the results are not called a decision but a certification and it was interesting to hear the prior case where there is a certification of the results.
And the Hearing Officer will be noted in the representation hearing on the Magnesium case set on page 79 of the record appendix is, we are in a none adversary proceeding.
The hearing in a representation case is not subject to any of the rules of evidence.
This is in the rules and regulation 102.66 or to the requirements of the Administrative Procedure Act because there was a specific exemption Section 5 to the certification of employee representatives but not as to unfair labor practice charges.
The Hearing Officer is actually one of the staff in the Regional Office designated by the Regional Director.
He is not appointed under the rules established for the appointment of Hearing Officers under the Administrative Procedure Act and he has no authority to make recommendations findings of fact, rulings of law or determinations of credibility.
The only reason that a representations case is handled in this manner is to expedite the processing of elections and representation matters and because in 1959 under the Act called the Landrum-Griffin Act which amended the Taft-Hartley Act of 1947.
Section 3 (b) was one of the amendments which authorized the Board to delegate its Section 9 functions.
Section 9 function is only on representation matters as distinguished from Section 10 of unfair labor practice charges.
The delegated Section 9 functions only as to representation cases to its regional directors are retaining discretionary powers of review.
Now, there’s no authority for the Board to delegate to a Regional Director.
The Board’s obligation to make the findings that are required of unfair labor practices brought under Section 10 and as a matter of fact to make this more binding Section 3 (b) in the amendment said, that the Board could delegate any of its other powers to a three-man panel of the Board.
The Regional Director, in any event, presumably after reading the record because he wasn’t present at the hearing and the statute says that the staff employee who was assigned as the Hearing Officer may not make any recommendations, so he wasn’t able to evaluate by the appearance of the witnesses or by observing or listening to witness the credibility.
In any event presumably after reading the record and without seeing these witnesses may it finds the credibility against the employer’s position and ruled that certain assistant foremen contended to be supervisors by the employer were not supervisors.
And then, another assistant foreman was in fact a supervisor.
And his decision referred mainly to record statements that were adverse to the employer’s position and also more particularly to Mr. Scott’s testimony.
And he said at one point that Scott himself testified that he wasn’t a foreman and yet he left out of his decision substantial testimony not only given by the employer and the employer witnesses but by Scott himself in which Scott made many, many statements about his supervisory functions and without trying to develop them because this isn’t the forum for that.
On page 88, Scott and this is in the record appendix that he recommended a raise to employees.
He regularly attended the supervisor’s meetings, page 84.
He said, “I have the right to fire if I didn’t want a man I will get rid of him” page 85.