1 - National Labor Relations Board

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Enforcement Litigation 121 unfair labor practice proceeding. In the representation proceeding in the instant case, the regional director rejected the employer's contention that certain individuals were independent contractors who should be excluded from the bargaining unit. The employer's request for review of the regional director's decision, which, as required by the Board's regulations, was in a self-contained document enabling the Board to rule on the basis of its contents without examining the entire record, was denied by the Board under Board rules which called for Board review only for "compelling reasons." In the unfair labor practice proceeding following the employer's refusal to bargain with the union which had won the election, the Board granted summary judgment against the employer, since Board rules prohibited relitigation, in unfair labor practice proceedings, of issues with respect to which the Board had denied a request for review of a regional director's decision. The court held that the Board, by failing to review the record independently of the regional director's decision or consider whether that decision was wrong, once it was found not to be an egregious error, had improperly abdicated its responsibility to decide whether an unfair labor practice had been committed. It noted that while section 3(b) of the Act permits the Board to delegate determinations of appropriate bargaining units to a regional director, it does not authorize a similar delegation of authority to make unfair labor practice findings, which have more serious consequences. Indeed, while Congress authorized some administrative agencies to delegate authority to make final decisions to officials generally on the level of the Board's regional directors, it had declined to give the Board similar power to delegate authority to trial examiners in unfair labor practice cases. The reason, in the court's opinion, was that Congress wanted final decisions in such cases to be made only by Board members, whose expertise and experience was superior to that of subordinates not subject to Senate confirmation. The Board's superior knowledge and background was especially desirable in cases like the present, which involved difficult factual and legal issues. The court recognized the Board's desire for speedy resolution of issues in representation proceedings and, accordingly, disclaimed any intent to require the Board to follow all of the requirements of the Administrative Procedure Act—which specifically exempts from its coverage cases involving the certification of employee representatives—or to permit the employer to intro-
122 Thirty-fourth Annual Report of the National Labor Relations Board duce in the unfair labor practice proceeding evidence which could have been presented in the representation proceeding. However, the court was of the opinion that plenary review of the record to determine whether or not the regional director's decision was correct, and not merely whether or not it was clearly erroneous, is required before the Board finds that an unfair labor practice has been committed. Since there had been no such review in this case, enforcement of the Board's order was denied, and the case was remanded to the Board for further proceedings.9 In another case, 1° the First Circuit disapproved the procedure which had been utilized by the regional director in resolving an issue as to whether an individual was a supervisor when it arose in a consent election proceeding where the regional director had authority to make the final decision. As the same issue was present in an unfair labor practice case concerning that individual's discharge, the regional director had consolidated the representation proceeding with the unfair labor practice proceeding to permit a single hearing before a trial examiner on that issue. When the trial examiner's decision issued the representation case was severed from the unfair labor practice case and returned to the regional director for decision. He took no action, however, until more than a year after the election. Then, a few days after the trial examiner's unfair labor practice decision was affirmed by the Board, he issued an order adopting, without discussion, the findings and conclusions of the trial examiner in the representation case. The court noted that, in a consent election, the parties agree to forgo resort to the Board for resolution of disputes and to allow the regional director to make the final decisions. As the Board cannot, in other elections, delegate the ultimate decision to the regional director, so the regional director, in a consent election, must make the final decision and not abdicate this responsibility to the Board. In the court's opinion, such an abdication occurred in this instance ; the delay in the regional director's decision in the representation case until the Board had decided the unfair labor practice case, followed by the adoption of the trial examiner's findings immediately thereafter, indicated that the regional director was principally concerned with avoiding a decision inconsistent with the result which might be reached in the unfair labor practice case. The resulting delay defeated the principal purpose of the consent election procedure : to expedite the 9 The Board's petition to the Supreme Court for a writ of certiorari was denied 396 U.S. 904. "N.L.R.B. v. Chelsea Clock Co., 411 F.2d 189.
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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PERCENT PERCENT 100 100 1111111 90
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II Jurisdiction of the Board The Bo
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V Representation Cases The Act requ
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Table 3A.—Formal Actions Taken in
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Table 4.—Remedial Actions Taken i
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Table 5.—Industrial Distribution
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Table 6.—Geographic Distribution
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Table 7.-Analysis of Methods of Dis
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it! All C cases CA cases CB cases C
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Stage of disposition ' Table 8.-Dis
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Table 11A.—Analysis of Elections
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Table 13.-Final Outcome of Represen
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Participating unions AFL-CIO v. AFL
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Table 14.-Valid Votes Cast in Repre
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Participating unions AFL-CIO v. AFL
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Table 19.-Litigation for Enforcemen
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Table 20.—Injunction Litigation U
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