N. L. R. B. v. MATTISON MACHINE WORKS
Argument of Norton J. Come
Chief Justice Earl Warren: Number 74, National Labor Relations Board, Petitioner, versus Mattison Machine Works.
Mr. Norton J. Come: Mr. Chief Justice and may it please the Court.
This case is on -- here on certiorari to the Court of Appeals for the Seventh Circuit which denied enforcement of a National Labor Relations Board order requiring the respondent, Mattison Machine Works to bargain with the United Auto Workers on the ground that the underlying representation election was effective.
The issue here is whether the Court of Appeals exceeded its reviewing power under Section 10 of the National Labor Relations Act in concluding that some of the employees may have been dissuaded from voting in the election because the election notices and the ballots described the employer as Mattison Machine Manufacturing Company instead of Mattison Machine Works or the Board had found that there was no evidence in the record or indeed a contention that this error in nomenclature confused either the employer or the employees.
Justice John M. Harlan: Manufacturing the -- at the use of the manufacturing --
Mr. Norton J. Come: The company --
Justice John M. Harlan: -- and the title is the only difference?
Mr. Norton J. Come: That is correct, Your Honor, Manufacturing Company instead of Works.
Mattison Machine was the same in both (Inaudible).
The effects are briefly these.
Respondent is a machine tool manufacturing company in Rockwood, Illinois.
In 1957, the auto workers filed a petition under Section 9 (c) of the National Labor Relations Act with the Board's Regional Director in Chicago requesting an election to determine whether respondent's production and maintenance employees desire the union as their representative.
The petition, although giving the correct address of the employer, described it as Mattison Machine Manufacturing Company.
The petition went to hearing before a hearing officer but the only issue was raised by the respondent or whether the union was in compliance with the Acts' filing requirements, Sections 9 (f), (k) and (h) whether the petition was in fact back by its 30% of the employees.
Respondent made no contention that there was any error in the name of the company and made no motion to correct the name set forth on the petition.
Based on this hearing, the Board thereafter directed that an election be conducted on the union's petition.
The election was held in respondent's plant pursuant to customary Board procedure and there is no contention that that was not followed here, notices of the election were posted for at least three working days before the election that each location of the plant where notices to employees were customarily posted, describing the voting unit, the date of the election and where in the plant and the hours at where -- at which the election would be held.
However, the notices and the ballots that were subsequently used, continued to describe the employer as Manufacturing Company instead of Works.
But in each case, Mattison Machine was spelled out both in the notices and on the ballots.
In the election, 317 out of 342 eligible voters or about 92% of the potential electorate voters, 157 votes were cast for the union, 141 votes against, 1 ballot was void and 18 were challenged.
Challenged ballots being defirmitive of the election results original director undertook to investigate the challenges.
The respondent filed with the Regional Director, objections to the conduct of the election and objections to the regions' investigation of the challenges.
In essence, the contention was that one field examiner had not adequately investigated the 18 challenges and that another one had improperly denied two employees the right to vote in the ground that they were supervisors.
Two weeks later, respondent sent the Regional Director a letter stating, and this is quoted at page 19 of the record, another error in this case that you should know about is the fact that your specimen ballot and notice of election and the tally ballot, they were furnished, all speak of the company as the Mattison Machine Manufacturing Company instead of the Mattison Machine Works.
The Regional Director investigated the objections and issued a report on objections and challenges.
He found no merit to the objections respecting the misnomer in name.
He found that it was a -- such a limited extent that it could not have tended to confuse the employees.
Respecting the challenges, he recommended that 8 would be sustained and the remaining 10 be overruled.
And since the remaining challenges were not enough to now affect the outcome of the election.
He recommended that the union be certified.
Respondent filed exceptions to the Regional Director's report with the Board -- respecting the misnomer on the notices and on the ballots.
There was no contention that the employees were misled thereby or nor was any effort made to show that.
Respondents' position was simply that since the ballots or the documents by which the employees authorized the union to represent them, a technical defect in the ballots ipso facto rendered the authorization legally in effect.
The respondent added that it -- it brought the defect to the attention of a field examiner of the Board in the preliminary conferences that had been held prior to the election but the field examiner had done nothing about changing the name.
It was a -- I reiterate, no contention, nor no effort to prove that the defect in name had any effect on the -- in terms of confusing the employees.
The contention was simply that since there was this defect, the vote couldn't validly authorize the union.
In effect, the argument similar to the argument that if somebody undertakes to convey Black Acre by deed if he describes the property as a White Acre, the deed is ineffective to affect the conveyance, that was the nature of the contention that respondent raised with respect to the variance in -- in name.
The Board found that respondents' exceptions were without merit.
With respect to the misnomer, the Board held that in view of the slight nature of the discrepancy.
A fact that the election was held in the plant and that 317 out of 342 of the employees had voted, it could not reasonably be said that the employees could have been misled by this slight variance.
The Board --
Chief Justice Earl Warren: Mr. Come, did --
Mr. Norton J. Come: Yes.
Chief Justice Earl Warren: -- did all of the workers who were eligible to vote work in that one plant?
Mr. Norton J. Come: Yes, Your Honor, they did.
The Board further noted that there was no evidence in the record that any employees were misled by the variance nor did the employer so contend.
The Board then went on to sustain the Regional Director's rulings with respect to six of the challenged ballots, he had sustained the challenges to eight.
The Board found that it was only necessary to sustain six because even assuming that the remaining 12 challenges and the votes of the two employees who are allegedly denied an opportunity to vote on the ground that they were supervisors.
Even if he accounted all of those against the union, the union would still have a majority, the final tally being 157 for the union and a 155 against the union.
So the Board certified the union.
Respondent petitioned for a reconsideration of the Board's decision and did not even mention the ruling on the misnomer as one of the grounds for reconsideration.
It limited it -- its contention to the fact that these two alleged supervisory employees, were improperly denied the right to cast a ballot and that the six challenges should not have been sustained.
Thereafter, the -- the Board found that the petition had not -- reconsideration, didn't present anything that hadn't been considered previously and denied it and certified the union.
The respondent refused the bargain with the union asserting the invalidity of the underlying representation election, unfair labor practice charges were filed by the union and the Board issued an order requiring the company that they -- to bargain with the union.
The Board then undertook to obtain enforcement of that order in the court below and under 9 (d) of the Act, that brought up for review the validity of the underlying representation procedure because that was the sole basis for the refusal of the bargain.
Now, in the Court of Appeals, respondent asserted that the four erred in certifying the union as the bargaining representative without first taking evidence on whether the misnomer kept some employees from voting and on the question of whether these two employees alleged to be supervisors were denied an opportunity to vote.
If they were supervisors, of course they would not have been in the bargaining unit.
Now, this was the first time in this proceeding that the respondent equated the misnomer with confusion of employees.
Up to now, it had merely been asserting that a technical variance was -- was enough irrespective that it may not have had any effect on the employees.
The Court remanded the case to the Board to hold a new election.
It conceded that the respondent had made no showing that the misnomer had caused confusion and that it may well be that no confusion in fact resulted.
And I'm now reading from the Court's opinion at record page 92, "But in view of the closeness of the election and the confusion as to whether two employees were deprived of an opportunity to vote, was incumbent upon the Board to determine whether or not any of the 25 employees who did not vote might have failed to do so because of the irregularity in the notices of election.
Justice John M. Harlan: The Proposition of the law seems to be that if you got a close election, you've got an error no matter what character -- error and is called in to the attention of the Board and the Board has to negatively -- possibility of some prejudice having been involved.
Is that the proposition involved?
Mr. Norton J. Come: That seems to be the proposition, Your Honor and it does not stand alone in this case because the Seventh Circuit has reiterated this proposition in two other cases besides this case, one of which is pending on a petition for certiorari, Number 382, the Celanese case.
Now, we believe that -- that proposition is -- is contrary to settled principles enunciated by this Court and followed by the other Courts of Appeals, namely that Section 9 of the Act vest the Board with discretion to determine when an election reflects the fair and free choice of the employees and the role of the reviewing Court is to step in only if the Board is arbitrary and capricious.
There is no reasonable basis to the Board's conclusion.
Furthermore, a corollary to that principle is that the burden is not on the Board but on the party challenging the fairness of the election to reduce evidence in support of his contentions.
Now, the reasons for these principles are two-fold.
In the thousands of elections which the Board conducts each year and it conducted over 6000 fiscal year ending 1960 it is acquired to some degree of expertise in spotting what kinds of irregularities are aft to affect employee free choice.
I think if the Board can late claim to expertise in any field that is in this election field here.
To require the Board to investigate every unsupported charge of election irregularity, would tend the Board down the election machinery in an endless delay, thereby nullifying the statutes' basic aim which is at -- get a prompt determination of the employees desires concerning a representative in the hope that this will be the best way of avoiding industrial strike.
Now, in the circumstances here, we submit that the Board was -- was clearly reasonable in concluding that the slight misnomer in -- in company name was not likely to have deterred any employees voting, nor that the respondent here introduced any contrary evidence before the Board.
Indeed as I pointed out, it did not even contend before the Board that this defect had any effect so far as confusing the employees.
The confusion contention was first advanced in its brief in the Court of Appeals and the statement there set forth which is also repeated at page 10 of its brief in this Court for the effect that when the election notices were posted, it scared many employees who arranged their vacations to include the day of the election as no record support whatever.
There's not anything in the record that would substantiate that speculation which respondent indulged in first in its brief in the court below and repeated in its brief to this Court.
Finally, we submit that the alleged confusion over the two employees who did not vote mentioned by the Court of Appeals in its opinion, had nothing to do with the misnomer.
The confusion with respect to them was simply whether or not when they came up to get a ballot.
The field examiner, the Board filed examiner told them that since they had been struck from the eligibility list by the employer that they could cast a ballot but it would be challenged or whether as alleged by the employer, they were merely told that they couldn't vote.
Now, the Board did not resolve that conflict in testimony because it found it unnecessary to do so in view of the fact that even had they voted and had they voted against the union, the union still would have had a majority.
There is no showing, no indication, no contention that this colloquy between the observers and the -- and the two alleged supervisors was noticed by any of the employees, had any effect, any confusion on the employees.
It is merely a confusion with respect to an evidentiary conflict that had nothing to do with the misnomer but so -- so therefore, we submit that the -- that the Court clearly erred in this case.
As I -- as I indicated before however, we are not solely concerned about this case, we're concerned about the fact that it is or appears to be part of a pattern here in the Seventh Circuit, the Celanese case which is pending on -- on cert, involve a little different factual pattern but essentially the same erroneous standard.
There, the Board and I don't want to burden the Court too much with the facts of Celanese, set aside an election because it found that -- that there had been a -- a misstatement on the union's part in the closing moments of the campaign.
The union -- the company had alleged that -- the union had asserted that all of the fringed benefits enjoyed by the employees with a result of collective bargaining when in fact it turned out that one or two had not been the result of collective bargaining but had given voluntarily by the company.
The Board found that the employees could be relied upon to adequately evaluate the misstatement.
The court below, following the principle that it had enunciated in the earlier (Inaudible) case, took the position that since there was a misstatement of fact in the closing moments of the campaign, that was enough to set the election aside that Board elections had to -- had to be pure.
The truth had to be pure and that if there was any dilution of the truth, that was enough to render the election vulnerable.
We submit, that there again, the Court has misconceived the issue and misapplied the correct standard.
The question is not whether there were misstatements in the election, whether there were misnomers in the names of the -- of the parties but whether the employees could reasonably evaluate the misstatement or were misled by the misnomer.
And a further question is whether the Board was reasonable in concluding the facts of the particular case that the employees were not misled or could reasonably evaluate the misstatement and if the burden is on the party seeking to invalidate the election to come forward with the evidence to rebut the Board's reasonable conclusion.
Therefore, we submit, Your Honors that this case should be reversed remanded with directions to enforce the Board's order.
Chief Justice Earl Warren: Mr. McCaffrey.
Mr. McCaffrey, --
Argument of J. Warren Mccaffrey
Mr. J. Warren Mccaffrey: Mr. Chief Justice.
Chief Justice Earl Warren: -- at the outset, would you mind saying whether in your opinion there is any issue in this case other than the so-called misnomer of the -- of the company at which the election is being held.
Mr. J. Warren Mccaffrey: Yes, Your Honor, I do.
Chief Justice Earl Warren: Well, then, I won't -- I won't bother you to go farther, you just (Voice Overlap) --
Mr. J. Warren Mccaffrey: There are two points to be argued before this Court.
Chief Justice Earl Warren: Very well -- very well, go right ahead.
Mr. J. Warren Mccaffrey: Mr. Chief Justice and may it please the Court.
This case has no connection whatsoever with the Celanese Corporation case.
That is a conclusion on the part of the Board or counsel for the Board.
This case is a serious case and the involvement is such that it does deserve Your Honors careful attention.
But we do not agree as to the questions that are involved before this Court and if I may burden you with counsel slot for the respondent.
And for the purposes of accuracy, I pray you to let me read the question that respondent contends before this Court.
Whether the Circuit Court of Appeals in view of all the facts and circumstances in this case correctly employed its equitable powers in denying a -- the petition of the National Labor Relations Board for an enforcement order and in remanding the case to that Board for another election.
Justice William O. Douglas: And for that it's late, explicit, I assume by the petition, the question presented in the petition for certiorari.
You didn't file a cross petition, did you?
Mr. J. Warren Mccaffrey: No -- that was the question involved from our point of view that's before this Court.
They have an -- an entirely different view point.
We do not agree.
Justice William O. Douglas: Well, the only question presented in the petition for certiorari is the one in terms of the --
Mr. J. Warren Mccaffrey: Question of judicial review.
Justice William O. Douglas: Employer's -- employer's name and this -- and this represent the -- the inaccuracy of the (Voice Overlap) --
Mr. J. Warren Mccaffrey: They seem to have filed a petition for writ of certiorari.
Justice William O. Douglas: But we only take the questions in the petition to certiorari, don't we?
Mr. J. Warren Mccaffrey: Well, their brief --
Justice William O. Douglas: Unless it's a cross-petition.
Mr. J. Warren Mccaffrey: Well, their brief is slightly different.
The question for certiorari, they complained in -- in their brief in that case, they complained about the judicial reviewing authority of the Seventh Circuit Court of Appeals.
But now they're back on a different question and they are belaboring the point of the non-prejudicial misnomer.
Well, that's only of the issues.
Justice John M. Harlan: However your phrase it though that it all grows out of the error in the name.
That's all there is.
Mr. J. Warren Mccaffrey: No, that isn't true, Your Honor, Justice Harlan.
No, that isn't our contention whatsoever.
In my opinion, the National Labor Relations Board counsel or the Solicitor General for the Board is trying to make the point in his brief and I intended to read from it so as to be sure that I'm exact.
Contends in his brief whether the court below had erred in setting aside the representation of the last election because the employer's name appeared on the election notice and ballots as Mattison Machinery Manufacturing Company instead of as Mattison Machine Works, where the National Labor Relations Board had found that there was no contention and no evidence in the record that this error in nomenclature confused either the employer or the employees involved or was in any respect prejudicial.
Justice William O. Douglas: That's precise writ -- phraseology of the questions presented in (Voice Overlap) --
Mr. J. Warren Mccaffrey: That's right.
But in their -- in their briefs, in support of the petition for certiorari, they were complaining about the Court's judicial review and in this brief, they're talking about the non-prejudicial misnomer in the name.
Now, in -- in the case before the Circuit Court of Appeals, there was two points made.
Number one, the misnomer in the name of the company, and number two, the fact that two eligible employees were not allowed to vote.
The Courts of Equity is (Inaudible) requiring that you must first do equity if you seek equity.
The employer-appellee in this case, filed objections to the conduct of the election or the conduct of the ballot and objections to conduct affecting the results of the ballot.
The same were filed and there was a request for a conference and the conference was not held until sometime later, August the 20th to be exact.
Counsel for respondent requested a hearing on the objections and also requested a new election.
The hearing on the objections was denied by the Regional Director.
Reason, not guilty.
With respect to the fact that there were two employees who had not been allowed to vote or were not even given a ballot to vote under challenge, if you please, was reserved by the Regional Director with the words that he would wait to see what his investigation reveal.
And if in fact those two employees were eligible workers and should've been allowed to vote, he would throw the election out.
The result was, there was no decision with respect to the two employees and the election was not thrown out.
Chief Justice Earl Warren: Now in that -- in that proceeding did you raised the question of the misnomer?
Mr. J. Warren Mccaffrey: I did.
It was at a conference in the Regional Director's office?
Chief Justice Earl Warren: Where -- where is that in the record?
Mr. J. Warren Mccaffrey: There is nothing -- there is nothing in the record on the meeting on August the 20th between the Regional Director of the 13th Region and myself.
Chief Justice Earl Warren: But aren't we bound by this record?
Mr. J. Warren Mccaffrey: Well, Your Honor, on August the 22nd, two days later, I wrote a letter.
Chief Justice Earl Warren: No, are we talking now about what's in the record or what's out of the record?
Mr. J. Warren Mccaffrey: We're going to talk about what's in the record and --
Chief Justice Earl Warren: But where is this -- but where is this?
Mr. J. Warren Mccaffrey: The conversation?
Chief Justice Earl Warren: No, this thing that you're just telling us about now on August 22nd.
Mr. J. Warren Mccaffrey: On August 22nd is when I wrote the letter.
Chief Justice Earl Warren: Alright.
Where is --
Mr. J. Warren Mccaffrey: The counsel referred to.
Chief Justice Earl Warren: Where is it in the record?
Mr. J. Warren Mccaffrey: The letter is not in the record.
Chief Justice Earl Warren: Well then, you want us to consider it?
Mr. J. Warren Mccaffrey: Well, it's referred to in the -- it's referred to -- all through the case, the letter of August the 22nd but it's not in there as a piece of evidence.
And counsel admits that the letter was received and the matter was discussed.
The fact of the misnomer of the two companies and that results from the conference that was held on August the 20th because I first asked for a hearing on the objections which were denied.
Then I asked for a new election and he gave me the evasive answer that if he, on his investigation, found these two people were eligible voters, he would throw the election out or no election.
We also discussed the fact that 25 people did not vote and that they were confused by reason of the specimen ballots.
The notices of election were all addressed to employees of -- of Mattison Machine Manufacturing Company.
Chief Justice Earl Warren: That was in the letter?
Mr. J. Warren Mccaffrey: That was in -- in the letter?
Chief Justice Earl Warren: Do you have a copy of the letter?
Mr. J. Warren Mccaffrey: No, sir.
Now, on August the 22nd --
Chief Justice Earl Warren: Where is the letter?
Mr. J. Warren Mccaffrey: Where is the letter?
It's in the office of the Regional Director.
I would assume, of the 13th Region.
Chief Justice Earl Warren: Oh but they -- it was important to you and you're going to argue it, you should have one then.
Mr. J. Warren Mccaffrey: The letter?
Well, they admit the fact that the letter was received.
There is no contention that the letter was not written.
The letter was written as a matter of defense by me because when I returned from the conference on the 20th, I knew I was in for it so I wanted to make a record of the fact that there was an official notification that this misnomer had effect on the employees, so I wrote the letter.
Now, what happened?
I had previously, on July the 7th -- on July the 8th, that a conference that was called by the Regional Director for the purpose of setting up this election.
I had called to the field examiner Jewel Morrow's (ph) attention that the name of the company was wrong.
In answer to her first question, "What is the corporate name of the company?"
I told her, Mattison Machine Works.
She looked up at me entirely and she says, "I think, I have better follow the union's petition."
So she used manufacturing the Mattison Machine Manufacturing Company.
Now, they have added in appendix to their brief.
And on page 23, it's definitely her responsibility and I quote -- let's start talking about notice of election on page 23 in appendix to the petition of the board.
"But the basis for such elect -- action is the election order sheet prepared by the assigned Board agent and the responsibility for the accuracy of the finished notice of election is his."
In this case, hers, but she refused to change the name of the company.
Well, that was on July of the 8th.
On August the 28th, I had the conference and was denied for hearing.
I was also denied a new election contingent upon his investigation.
On November the 19th, the Regional Director got around to filing his report and I am now reading from page 20 of the transcript before you.
Referring to a reference to the -- to its communication of August 22nd, 1957.
The company states that it advised the Board agent of the proper corporate name during the conference at which the election details were discussed because in the company's opinion, the ballots have to carry the correct authorization that there was to be any contract negotiated.
The Board agent who conducted the pre-election conference has no recollection if there ever having been any discussion on such occasion concerning the proper corporate title.
We submitted in this connection two affidavits of two people who were present at that conference as to what the conversation was.
They are in appendix to my brief for the respondent, affidavits one and two.
From the foregoing, reading on the Regional Director's report, "It is evident that the extent of the corporate misnomer was the use of the words, "Manufacturing Company" instead of -- instead of "Manufacturing Machine Works," appearing on the notice of election, sample ballot, the ballots used in the course of the election and the tally of ballot.
Now, as proof of the conversation between the Regional Director and myself, and he knowing fully well our contention, he goes on and says, "A misnomer of such limited extent cannot be said to have reasonably intended to create such confusion among employees involved as to have precluded a free and full expression in the casting of their ballots.
So, it is in the record that we complained and the Regional Director put it in the record when he filed his report.
In the representation case, we asked for a hearing, we were denied that.
Or the respondent might file exceptions and objections to the Regional Director's report and in large on the misnomer.
I asked for a hearing on my exceptions and objections.
We were denied.
On my petition for review of the Board's certification despite these two big errors, it was denied.
I asked for a rehearing or reconsideration and it was denied.
The Circuit Court of Appeal apparently concluded that the Board was coming before it with unclean hands.
They haven't certainly done equity.
They wouldn't even hear a word from the respondent from 155 people who are reported to have voted against the union on the contention that the misnomer did cause confusion.
They closed the iron curtain which is that -- customarily referred to as administrative procedure because there is a certain amount of latitude allowed to a Regional Director and to a Board that they lowered the curtain, I couldn't even get a hearing, I couldn't put in any evidence but the record shows that the matter of confusion was discussed and the Regional Director brought it out himself.
He was referring to it in his report.
That brings me to the question -- of the question that they show in their brief which Justice Douglas has -- says it's identical and it appears in the writ of -- petition for writ of certiorari before it had found that there was no contention and no evidence in the record.
That is an illogical conclusion by the Board or Solicitor General who prepared the brief.
The matter was of record because on July 8, I told the field examiner, "Change the name."
And she said, "She'd better follow the petition of the union."
On August the 28th, I asked for a hearing and among the things we discussed was the question that there was confusion caused by notices which are addressed to the employees of Mattison Machine Manufacturing Company.
That's what the notice of election granted.
The specimen ballot was addressed to the employees of the Mattison Manufacturing Company.
The confusion was caused and the Regional Director knew it full well so he discussed it in his November 17th or November 19th report and he calls it a misnomer of such limited extent that he could not possibly have caused confusion.
Chief Justice Earl Warren: Is there any other company by a similar name to that in which the election was called that these people could get confused with?
Mr. J. Warren Mccaffrey: I don't -- it isn't our contention that there was a similarity in name and I don't know of any such, Your Honor.
Chief Justice Earl Warren: How would it -- how would it confuse them and how would they -- how would they get hurt?
Mr. J. Warren Mccaffrey: Well --
Chief Justice Earl Warren: What's the prejudice?
Mr. J. Warren Mccaffrey: Well, there -- there were 25 abstained from the election.
Chief Justice Earl Warren: That -- that doesn't answer it though --
Mr. J. Warren Mccaffrey: And the confusion lies in the fact that they besiege the personnel manager's office when the notices were posted three days before the election all around the shop.
Incidentally, counsel didn't know it but there are two buildings separated by a railroad track but the notices were in both buildings.
And it created such confusion that he had an avalanche of inquires.
"Is this another phony labor Board election?
I'm going fishing, I don't want any part of it," and comments of that kind.
But we weren't allowed to put them on his witnesses or we couldn't get a hearing.
Chief Justice Earl Warren: But was that caused by -- by this misnomer?
Mr. J. Warren Mccaffrey: By the mis -- the -- on the bulletin board, it says notice of election and it's addressed to the employees of Mattison Machine Manufacturing Company and I'm working in Matttison Machine Works and I wonder what's going on.
Some of them said, "I don't want any part of it.
It looks like a phony."
But we couldn't put on witnesses.
We were stopped by administrative procedure on our original objections to the election.
The Regional Director decided he didn't want to hear anything.
I enlarged on the misnomer and thought it filed exceptions and objections to the Regional Director's report.
And I asked the Board for hearing and I was denied that.
So, where can we get anything?
Before the Court accepts until we get to a Circuit Court of Appeals which is a court of law, so that was a complaint case.
Chief Justice Earl Warren: As I understood, Mr. Counsel, when you made your first objection to the Board, you didn't -- you didn't mention this misnomer at all and it was sent two weeks later that you wrote a letter and said, "Now, there's another objection to this which is a misnomer."
Mr. J. Warren Mccaffrey: No.
Correcting you, Your Honor --
Chief Justice Earl Warren: Yes, you may.
Mr. J. Warren Mccaffrey: -- in time and in fact.
On July the 8th, two weeks before the election when there'll be no question of confusion, I told the Board's agent, the field examiner, "Use the right corporate name."
Chief Justice Earl Warren: No, that -- that's not what I'm --
Mr. J. Warren Mccaffrey: I couldn't design a reason.
Chief Justice Earl Warren: That's not what I'm talking about.
I'm talking about when you -- when you made formal objection to -- towards --
Mr. J. Warren Mccaffrey: Yes, sir, that was --
Chief Justice Earl Warren: -- your -- your (Voice Overlap)
Mr. J. Warren Mccaffrey: -- 29 days to be exact from the date of the election.
Chief Justice Earl Warren: You didn't -- you didn't include that.
Mr. J. Warren Mccaffrey: I objected to the use of the wrong name but I did not say that caused the confusion.
Chief Justice Earl Warren: Why did you write the subsequent letter then, saying that in addition to -- to what you had objected to the --
Mr. J. Warren Mccaffrey: No, the letter only calls attention to the fact that the ballots, specimen ballots, and the notices of election, all employed the wrong name and were addressed to the employees of their own companies.
Chief Justice Earl Warren: Where does that one -- where does that appear in the record?
Mr. J. Warren Mccaffrey: Well, that's in connection with the appropriate -- well, counsel very kindly called the attention to the fact -- counsel very generously calls attention to page 19 which covers the report and objections and challenges.
And it recites the time element of letters and other things.
But the question of the --
Chief Justice Earl Warren: Now, in that -- in that document, do you -- do you raise objection because of the misnomer?
Mr. J. Warren Mccaffrey: Yes, Your Honor.
Chief Justice Earl Warren: Where -- where in -- that's what I want to see.
Mr. J. Warren Mccaffrey: Well, from the middle of that first paragraph to the end of the paragraph is the direct quotation out of the letter on page 19.
Chief Justice Earl Warren: 19.
Mr. J. Warren Mccaffrey: Now, this is -- this here -- this page on 19 is the Regional Director talking.
Chief Justice Earl Warren: Yes.
I -- I see.
Mr. J. Warren Mccaffrey: And all of these are on page 20 of the next to last paragraph, he uses the bill that raises the confusion because he knew the contention because of our conference on the 20th but that's no matter of record.
I was invited to his office for the purposes of conferring about the objections of the election or anything else that came up.
And I asked first the hearing on the objections and it was denied.
I asked secondly for a new election and he says, "Well, that all depends upon how my investigation shows up on these two men that you claim were eligible to vote.
If they were in fact eligible to work -- vote, I'll throw the election out."
But if also in that conference was very clearly given across to the Regional Director, the contention that 25 people stayed away from the election, two, because they were denied the right to vote and 23 because they were confused about the issue and wanted no part of it, and they so expressed themselves.
He would hold no hearing but he was fully informed as to the contention of the company and he admits it on page 20 when he says, "On misnomer of such limited extent, cannot be said to have reasonably tendered to create such confusion among employees involved."
He raises the question himself because he knew it was a contention but he haven't decided not to give me hearings all the way along the line.
He subsequently, by administrative procedure, I was denied hearings -- and for the hearings and I couldn't get anything in.
Justice William J. Brennan: But you have participated in the formal hearing on considering the --
Mr. J. Warren Mccaffrey: Complaint case?
Justice William J. Brennan: No.
On the certification proceeding.
Mr. J. Warren Mccaffrey: I did.
Justice William J. Brennan: Did you make any motion at that time to correct --
Mr. J. Warren Mccaffrey: At the time we have the --
Justice William J. Brennan: At the hearing, did you make any motion then to correct the name of the company?
Mr. J. Warren Mccaffrey: Well, we had nothing before us so we disposed the -- the original notice for the first hearing was in the wrong of the company and it was told to the field examiner --
Justice William J. Brennan: No, but it does (Voice Overlap) --
Mr. J. Warren Mccaffrey: -- that was different.
There's was no motion made.
Justice William J. Brennan: Well, that I --
Mr. J. Warren Mccaffrey: No, Your Honor.
Justice William J. Brennan: I'm -- I'm not just familiar of this case as I used to be with this (Inaudible).
My recollection is that a certification proceeding always was pre -- preceded by a form of hearing at which the Board and the union and the company appeared and where they end up being compelled.
Mr. J. Warren Mccaffrey: That is correct, we have such.
Justice William J. Brennan: And -- but no motion was made at that year.
Mr. J. Warren Mccaffrey: No motion was made and I read to you an excerpt from the N.L.R.B. manual, put in their brief as an appendix.
It was her responsibility.
They complained that I made no motion, no formal motion but it's not my responsibility to make a formal motion.
I read from the N.L.R.B. manual, it was that woman's place to take suggestion and use the correct corporate name.
Why did she ask me the question?
Justice William J. Brennan: I know that it -- would you not have had -- I take it that hearing was transcribed that used to be other still.
Mr. J. Warren Mccaffrey: That hearing was transcribed.
Justice William J. Brennan: Well, and you didn't put on the record there that a formal motion, similar to the complaints you had made to her before the hearing.
Mr. J. Warren Mccaffrey: I did not make a formal motion.
No, Your Honor.
I did not.
Justice Tom C. Clark: And it served with the papers on you or to anybody?
Did the Board served any papers on the company?
Mr. J. Warren Mccaffrey: Yes, they did.
Justice Tom C. Clark: In the name of this --
Mr. J. Warren Mccaffrey: Mattison Machine Manufacturing Company.
That is correct.
Justice Felix Frankfurter: Did the company send the papers back?
Mr. J. Warren Mccaffrey: The company sent the papers to me.
Now, the only -- the only thing is that -- the only thing that we're talking about the confusion that was caused was in the minds of the employees who went fishing and wanted no part of it because it looked like a phony and it was a close election.
And there were 25 votes that certainly would've turned the tide one way or the other or made it more definite one way or the other because 25 refrained away from voting.
Justice John M. Harlan: Fishing now is a very good --
Mr. J. Warren Mccaffrey: I beg your pardon.
Justice John M. Harlan: Fishing now is very a good.
Mr. J. Warren Mccaffrey: Now --
Justice John M. Harlan: It could be.
Mr. J. Warren Mccaffrey: The most flagrant abuse of the whole case is the denial to the two workers of their right to vote.
Justice Charles E. Whittaker: How did that hurt you?
Mr. J. Warren Mccaffrey: How did that hurt us?
Justice Charles E. Whittaker: Yes.
Mr. J. Warren Mccaffrey: Well, Your Honor, I don't know what you're experiences as a Judge -- Justice Whittaker but they lined up to come to the ballot box to get a ballot so they're standing there and the union quite to the contrary to something counsel said, "The union wants to challenge these two men except they couldn't vote."
But the field examiner who was over zealous, he took up the place -- he took up the issue from thereon and he says, "You cannot vote."
And he said he gave the reason that the name was drawn through the -- a line was drawn through their names.
I don't know anything about it.
I wasn't there.
But to the second man, he says, "You cannot vote and if I let you vote, it won't do you any good anyway."
Now, he's talking to a group of people who are lined up waiting to go to a ballot box.And here is the government's agent, throwing his weight around it and these people aren't impressionable.
And two men who were actually our only workers and entitled to vote were not allowed their opportunity to pick their own bargaining agent.
Justice Charles E. Whittaker: Did those two votes have one (Inaudible).
Mr. J. Warren Mccaffrey: They would not.
Justice Charles E. Whittaker: That's what I meant.
Mr. J. Warren Mccaffrey: But they -- the -- the act influenced the thinking of others.
There is no question about these people being impressionable and it was done right then and there on the spot.
Justice Charles E. Whittaker: I was wondering --
Mr. J. Warren Mccaffrey: And actually -- actually, there was never a decision in connection with the two workers.
Let me show you how the Board cites that -- that issue.
There is on the back of my brief, six affidavits, and affidavits three, four, five and six have to do with the conversation that took place at the time these two illegible workers were denied the right to vote.
Now, the Board and its certification comes along and they issue an order.
And I want you to realize what they said.
However, we need not to cite this conflict in testimony about what the union watcher said and what the employer watcher said.
For assuming arguendo that these two employees were denied an opportunity to vote, their votes would not have been sufficient in number to affect the results of the election.
But the Regional Director, when I asked for a new election said, "I'll see what my investigation reveals.
It was never decided."
He never concluded or made a finding that they were eligible or not eligible but look at the demoralizing effect of denying two eligible workers the privilege to vote and the Regional Director's field examiner taking up the cudgels for the union.
If you vote, it won't do you any good anyway.
And my affidavit is the record.
That's what the conversation was about.
Now, the big point about the two people not being allowed to vote, it's contrary to the findings and policies of the National Labor Relations Act, free choice of bargaining representative.
It's contrary to Section 7 of the Act, free choice of bargaining representative.
These two fellows have no choice in the matter.
And it is also contrary to the intention of Congress in adopting the Act.
They wanted free, untrammeled, unbiased, unprejudiced elections in which the worker could come in and make his own selection of bargaining agents.
But if the field examiner says, "You can vote and you cannot vote."
That's entire usurpation of power.
I referred to their appendix.
They have the Labor Board manual and I call your attention to page 21 where it's speaking about the -- their own exhibits, speaking about the field examiner.
They said, "Normally, the Board agent should be present."
This is at a free election check but he's also present at the election, “to assist in the resolution of disagreements”.
He should make it clear that he has no authority to find an individual eligible or ineligible to vote."
Now, they're complaining about the Circuit Court of Appeals over stepping its ground and raising some kind of a fictitious argument.
The Circuit Court of Appeals had a matter before in which confusion was alleged.
And in my brief and oral argument, I enlarged upon it, so the Circuit Court of Appeals very appropriately said, "And if the Board thinks that there was no contention in the matter, look what the Court says."
And I quote, page 91 of the transcript.
One of the respondents' contentions before the Board was that the election should be set aside because of the notices.
Affidavits filed by respondent established that this discrepancy and irregularity was brought to the attention to the Board's representative that a conference held for the purpose of arranging details for the election.
The Board's investigation disclosed merely that its representative did not recall respondent having objective to the irregularity in the name.
And it goes on and drops down about half a page.
But the Board and the Regional Director, in disclosing of the respondent's objection, merely assumed that no confusion or prejudice resulted and the Court draws its conclusion.
But in view of the closeness of the election and the confusion as to whether two employees were actually deprived of the opportunity to vote, we are not satisfied that the Board's disposition of the objection was such that it is entitled to obtain enforcement of the order.
The Board had shown no deference at all to the respondent or the employer in the case.
They were denying everything by administrative procedures.
The question is should we, under these circumstances, give the stamp of approval to the Board's rejection when there is nothing in the record to support such a conclusion, whether the irregularity had any effect on the election was never ascertained.
We hold that the ends of justice require a new election.
Thank you for your indulgence.
Chief Justice Earl Warren: Mr. Come.
Rebuttal of Norton J. Come
Mr. Norton J. Come: (Inaudible)
Chief Justice Earl Warren: I beg your pardon.
We'll recess (Inaudible).