514 F2d 894 Retail Clerks Union, Local No. 698, Retail Clerks International Association v. National Labor Relations Board

514 F.2d 894

90 L.R.R.M. (BNA) 2844, 169 U.S.App.D.C. 58,
76 Lab.Cas. P 10,834

Retail Clerks Union, Local No. 698, Retail Clerks
International Association, AFL-CIO, Petitioner
v.
National Labor Relations Board, Respondent. The May
Department Stores Company dba the M. O'Neil
Company, Intervenor

Nos. 74-1591 and 74-1726.

United States Court of Appeals, District of Columbia Circuit.

May 2, 1975.

NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, Circuit Judge.

PER CURIAM

Order

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1

These causes came on to be heard on petitions for review and cross-application for enforcement of an order of the National Labor Relations Board and were argued by counsel. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the court. See Local Rule 13(c).

2

Perhaps if this court had been the factfinder in the first instance we might have come to a result different from the Board's as to the company president's speech and the Gissel remedy. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). But we are unable to say that there is not substantial evidence in the record taken as a whole to support the order of the Board. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

3

On consideration of the foregoing, it is ordered and adjudged by this court that the petitions for review are hereby denied, and the cross application for enforcement is hereby granted.

4

Statement of Chief Judge BAZELON, concurring, is attached.

BAZELON, Chief Judge, concurring

5

I think some if not all of the Sec. 8(a)(1) violations suffer from inadequate analysis under the standards of Local 633, Teamsters v. NLRB, 509 F.2d 490 (D.C.Cir.1974). These standards are necessary to safeguard the undeniable First Amendment and Sec. 8(c) interests involved when employer speech is found to be an unfair labor practice. The Hearing Examiner, whom the Board summarily affirmed on these issues, indicated little concern for such interests. The Brief for Petitioner May Department Stores, at 19-37, makes a very strong argument from the evidence that no coercion was involved in the employer speech found to violate Sec. 8(a)(1). While this evidentiary showing is not sufficient to warrant reversal on the basis of insubstantial evidence, it might in other circumstances justify a remand for further consideration. However, I think remand is inappropriate here for practical reasons. Under Sec. 9(c)(3), the Union would have the right to petition for a new election regardless of whether the Sec. 8(a)(1) charges are sustained since the second election occurred in 1970 much more than 12 months ago. Furthermore, the Union's support as demonstrated in the past two elections is substantial enough that further indication of support for an election is probably a technical step. Remand would further lengthen already excessive delay in ordering a new election.