National Labor Relations Board v. Allied Distributing Corporation and Standard Optical Company, 297 F.2d 679, 10th Cir. (1961)

297 F.
2d 679
NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
ALLIED DISTRIBUTING CORPORATION and Standard
Optical
Company, Respondents.
No. 6757.
United States Court of Appeals Tenth Circuit.

Dec. 11, 1961.
A. Brummel, Atty., National Labor Relations Board, Washington, D.C.

(Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen.
Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W.
Brown, Jr., Atty., National Labor Relations Board, Washington, D.C.,
were with him on the brief), for petitioner.
George E. Bridwell, of Bridwell & Reynolds, Salt Lake City, Utah, for
respondents.
Before LEWIS and BREITENSTEIN, Circuit Judges, and
CHRISTENSON, District Judge.
BREITENSTEIN, Circuit Judge.
Pursuant to Section 10(e) of the National Labor Relations Act,1 the National
Labor Relations Board petitions for the enforcement of an order directed
against respondents, Allied Distributing Corporation and Standard Optical
Company. The Board found that the respondents had violated Section 8(a)(1) of
the Act2 by making threats of economic reprisal to dissuade employees from
selecting the International Union of Electrical, Radio and Machine Workers,
AFL-CIO, as their bargaining representative and had also violated Sections 8(a)
(3) and (1)3 by discharging employees Story, Benton, and Amador because of
their activities on behalf of the Union.
The respondents contended before the Board that there was no wrongful motive
for the discharges and that the discharges resulted from a planned program to
reduce personnel as an economy measure made necessary by unusual capital
expenditures. In his brief and oral argument to this court, counsel for the
respondents does not press the point of the sufficiency of the record to sustain
the decision of the Board. In the circumstances no good purpose will be served
by detailing the evidence. It is sufficient to say that we have reviewed the
record and conclude that the unfair labor practices found by the Board were
established by substantial evidence.
3
Respondents argue that they have been denied procedural due process in
violation of the Fifth Amendment. The issues joined by a complaint filed with
the Board by its regional director and the answer of the respondents were heard
by a trial examiner in Salt Lake City, Utah, on March 9, 1960, and full
opportunity was afforded for the introduction of evidence. By his report dated
May 26, 1960, the trial examiner found the respondents had committed the
unfair labor practices in question. On June 20, 1960, the respondents filed
exceptions to the report, a motion to reopen the hearing, and a request for oral
argument before the Board. By its March 15, 1961, decision and order the
Board denied oral argument, denied the motion to reopen, and sustained the
examiner.
Complaint is made that the Board in its order denying both the request for oral
argument and the request for reopening of the hearing referred to such motions
as having been made by the Union. This blunder is admitted by the Board but it
was not prejudicial and did not deny due process. In declining to hear oral
argument the Board stated that 'the record, exceptions, and brief adequately
present the positions of the parties.' The statute provides that, after evidence is
taken at hearing on charges of unfair labor practices and after a written
transcript thereof is filed with the Board, it may 'in its discretion * * * hear
argument.' 29 U.S.C.A. 160(c).
The Supreme Court has not interpreted the Fifth Amendment as guaranteeing
any particular form of procedure.4 Here, the statute has left the grant or denial
of oral argument to the discretion of the Board. Londoner v. City & County of
Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103, is not in point. That case
involved tax assessment proceedings in which the objectors were not given an
opportunity to be heard other than by the submission of their objections in
writing and there was no right of court review. In the instant case there was a
full hearing before the examiner, review of his report by the Board upon
exceptions and briefs, and the instant enforcement proceedings in this court. As
we see it, the statutory procedure for determining and deterring unfair labor
practices meets all the requirements of due process and the Board did not abuse
the discretion given it to hear, or refuse to hear, oral argument. 5

6
The petition for enforcement is granted.
29 U.S.C.A. 160(e)
29 U.S.C.A. 158(a)(1)
29 U.S.C.A. 158(a)(1) and 158(a)(3)
See Federal Communications Commission v. W.J.R., The Goodwill Station,

Inc., 337 U.S. 265, 275, 69 S.Ct. 1097, 93 L.Ed. 1353; National Labor
Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 351, 58
S.Ct. 904, 82 L.Ed. 1381; and Morgan v. United States, 298 U.S. 468, 481, 56
S.Ct. 906, 80 L.Ed. 1288
Cf. National Labor Relations Board v. Clausen, 3 Cir., 188 F.2d 439, 444,
certiorari denied 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 653

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297 F.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

United States Court of Appeals Tenth Circuit.

A. Brummel, Atty., National Labor Relations Board, Washington, D.C.

the discretion given it to hear, or refuse to hear, oral argument. 5

The petition for enforcement is granted.

29 U.S.C.A. 158(a)(1) and 158(a)(3)

See Federal Communications Commission v. W.J.R., The Goodwill Station,

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