American Wholesalers, Inc.

National Labor Relations Board - Board Decisions

May 9, 1974

210 N.L.R.B. 499 (N.L.R.B. 1974)

AMERICAN WHOLESALERS, INC. 499
American Wholesalers , Inc. and Textile Workers
Union of America, AFL-CIO, Petitioner. Case
5-RC-8312
May 9, 1974
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 5 on
January 15, 1973,1 an election by secret ballot was
conducted under his direction and supervision on
February 9. The tally of the ballots showed that, of
approximately 109 eligible voters, 63 voted for, and
41 against, the Petitioner, and 2 cast challenged
ballots. Thereafter, the Employer filed timely objec-
tions to conduct affecting the results of the election.
By Supplemental Decision and Notice of Hearing
dated March 23 the Acting Regional Director
overruled Objection 10 (alleging waiver of initiation
fees) and ordered a hearing on the nine remaining
objections. On March 30, the Petitioner filed a
motion for a more definite statement regarding the
Employer's objections, and on April 11 the Regional
Director denied the motion, finding that the Supple-
mental Decision and Notice of Hearing adequately
advised the Petitioner as to the issues to be heard.
The Employer filed a request for review of the Acting
Regional Director's Supplemental Decision. On
April 13, the Board denied the request but, on its
own motion, in view of pending court litigation of
the issue in Objection 10 involving waiving of
initiation fees, amended the Supplemental Decision
to provide for the receipt of evidence with respect to
that objection.
A hearing was held on the objections on April 19
and May 3 and 4. On April 19, after the Employer
presented its first witness, counsel for the Petitioner
requested that the Hearing Officer allow it to reserve
cross-examination of that witness and made similar
requests with regard to other witnesses to enable it to
"intelligently investigate [its] side of the case" to
prepare for cross-examination. The Employer object-
ed strenuously, contending, inter alia, that to grant
Petitioner's motion would, in effect, permit discovery
which is not allowed in Board proceedings and
would countermand the Regional Director' s earlier
denial of Petitioner's motion. The Hearing Officer
granted the Petitioner's request to reserve cross-
examination. Pursuant to such ruling, the cross-
examination of the Employer's eight witnesses on the
first day of the hearing was permitted to be deferred.
The Petitioner cross-examined those witnesses on
May 3, the next date the hearing convened, and on
that date the Employer presented three additional
witnesses, two of whom were cross-examined by the
Petitioner on May 4.
The Hearing Officer issued his report on June 22
basing his credibility resolutions with respect to
certain objections, in part, on the testimony given on
deferred cross-examination of Employer's witnesses.
The Hearing Officer recommended that the Employ-
er's objections be overruled in their entirety and that
an appropriate certification issue . The Employer
filed timely exceptions, with a supporting brief, to the
Hearing Officer's report. On October 12, the Region-
al Director for Region 5 issued a Second Supplemen-
tal Decision and Certification of Representative in
which he adopted the Hearing Officer's report,
overruled all of the Employer's objections, and
certified the Petitioner.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board's Rules and
Regulations, Series 8, as amended, the Employer
timely filed a request for review of the Regional
Director's Second Supplemental Decision on the
ground, inter alia, that prejudicial error resulted from
the Hearing Officer's deferral of cross-examination
of the Employer's witnesses in that it countermanded
the Regional Director's Decision, bestowed unwar-
ranted favored treatment upon Petitioner, and gave
Petitioner a greater advantage than the taking of
depositions would permit.
The Board by telegraphic order dated December 18
granted the request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with regard to the issues under review, and
makes the following findings:
We are persuaded that the Hearing Officer's ruling
permitting deferral of cross-examination of the
Employer's witnesses constituted prejudicial error.
As urged by the Employer, an essential element of
due process requires that governmental rules, regula-
tions, and procedures be applied evenhandedly and
uniformly and any departure from such equality of
treatment should be predicated upon reasonable and
articulated grounds. The orderly and normal presen-
tation of testimony in Board proceedings, absent
unusual circumstances not present here, requires that
cross-examination of witnesses follow their testimony
on direct. This traditional procedure affords all
concerned an equal opportunity to test the witnesses'
I All dates herein are 1973
210 NLRB No. 74
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony given on direct, which frequently in legal
proceedings is previously unknown to opposing
parties. The Hearing Officer's ruling herein, deviat-
ing from the normal procedure in order to give
Petitioner an opportunity to further investigate the
substance of the testimony given by Employer's
witnesses was, in our opinion, unwarranted. It not
only gave the Petitioner an undue advantage in
preparing its case but it could have had a real effect
on the witnesses' subsequent recollection of facts
testified to previously in their direct examination.
Thus, the Hearing Officer's ultimate credibility
resolutions regarding the testimony may have been
affected by the circumstances flowing from his
erroneous procedural ruling. In view of our finding
that prejudicial error exists in the Hearing Officer's
ruling, the Board concludes that a hearing de novo on
the objections is required. Accordingly, we remand
the case to the Regional Director for a new hearing
on Objections I through 9,2 before another hearing
officer who shall issue a report, returnable to the
Board, containing findings of fact and resolutions of
credibility. The parties may file exceptions to the
report and briefs in accordance with Section
102.69(f) of the National Labor Relations Board's
Rules and Regulations, Series 8, as amended.
2 As to Objection 10, involving Petitioner's waiver of initiation fees, the decision of the Supreme Court in N.LR.B v. Savair Manufacturing Co, 414
Board has considered this issue and finds that the Petitioner's waiver of U S 270 (1973) Accordingly, Objection 10 is hereby overruled.
initiation fees does not constitute objectionable conduct, consistent with the