FREE EMPLOYEES AND WORKERS ASSOCIATION (FEWA), PETITIONER, VS. THE COURT OF INDUSTRIAL RELATIONS, BETTER BUILDINGS LABOR UNION (BLU), AND WILLIAM S. WARNE, AS OWNER AND OPERATOR…

Free Employees and Workers Association versus Court of Industrial Relations

The Case

This is a petition for certiorari brought by the Free Employees and Workers Association, which I shall call FEWA, against the Court of Industrial Relations, the Better Buildings Labor Union, which I shall call BLU, and William S. Warne as owner and operator of Better Buildings. FEWA asks the Supreme Court to set aside two orders of the Court of Industrial Relations directing that a certification election be held among the workers of Better Buildings. The case matters because it fixes the procedural floor for representation proceedings: even a quasi-judicial body like the Court of Industrial Relations, sitting in a contest between two rival unions, may not decide on testimony that was never subjected to cross-examination, and it may not keep a party guessing about a pending motion to strike by simply deciding the case without ruling on it.

Procedural History

The employer, Better Buildings, itself instituted proceedings in the Court of Industrial Relations, asking that a certification election be held after determining who were entitled to vote. Both unions answered, each claiming majority membership, and the case was set for trial before a hearing examiner. On the day set, FEWA's counsel sought a continuance, which was denied over BLU's objection; with the lawyers for Better Buildings and FEWA absent, evidence was received for BLU through the sole testimony of its president, Nelson Padilla, who exhibited membership rosters marked for identification. FEWA later filed a verified motion for the opportunity to cross-examine the witness, and the motion was granted, with cross-examination set for two dates in March 1962. Padilla and BLU's counsel failed to appear on both dates, and again on a later reset date. FEWA moved to strike out the testimony, but the court deferred its ruling each time. On September 18, 1962, Judge Arsenio L. Martinez ordered a certification election, and the Court en banc denied reconsideration on November 21, 1962. FEWA then elevated the case to the Supreme Court by petition for certiorari.

Facts

Better Buildings is a single proprietorship of William S. Warne, engaged in the business of cleaning and sanitation maintenance of building offices and establishments, and employing some seventy persons working at different job sites. Two labor unions, FEWA and BLU, both claimed the right to bargain collectively for these laborers. Because of their conflicting demands, the employer went to the Court of Industrial Relations and asked that a certification election be held after determining who were entitled to vote.

At the hearing, only BLU presented evidence, consisting solely of the testimony of its president, Nelson Padilla, who identified the union's membership rosters. FEWA asked for and was granted the right to cross-examine Padilla, and subpoenas were issued. Padilla did not appear for the cross-examination on the scheduled dates, nor on the reset date. FEWA moved to strike out his testimony, but the court held the motion in abeyance and deferred its ruling again and again.

Ultimately, on the basis of the exhibits identified by Padilla, who never submitted to cross-examination, together with the payroll and FEWA's evidence, the Court of Industrial Relations found that many workers had dual membership and, being in a quandary as to which union really had the majority, ordered a certification election. Reconsideration was denied, and FEWA came to the Supreme Court.

Issues

• Whether or not the Court of Industrial Relations abused its discretion in refusing to strike out the testimony of BLU's lone witness, and the exhibits he identified, for lack of cross-examination.
• Whether or not the right of confrontation and cross-examination may be dispensed with in a representation proceeding on the theory that it is non-adversary in character.
• Whether or not a certification election may be ordered where, once the uncross-examined testimony is discarded, there remains no adequate proof that a question concerning representation exists.

Applicable Provisions

Section 12, paragraph b, of the Industrial Peace Act provides:

Whenever a question arises concerning the representation of employees, the Court may investigate such controversy. In any such investigation the Court shall provide for a speedy and appropriate hearing upon due notice, and if there is any reasonable doubt as to whom the employees have chosen, the Court shall order a secret election.

This is the provision the Court construes, and its words "appropriate hearing upon due notice" are the textual anchor for the holding that the rival unions must be allowed to cross-examine each other's witnesses.

Ruling

On the first issue, the Court held that it was error and abuse of discretion for the industrial court to decide the case without the reserved cross-examination, and to take into account Padilla's testimony in chief. The error was compounded because, after deferring its ruling on whether the testimony should be stricken out, the court decided the case on the merits without announcing the deferred ruling. The Court reasoned that as long as the question of admissibility of the challenged testimony is not decided, the appellant's evidence could not be considered complete, for the party challenging the testimony is unable to decide whether such evidence calls for additional rebuttal. The fairness that lies at the root of due process exacts that the party moving to strike out the testimony be apprised of the Court's ruling before the case is submitted for decision.

On the second issue, the Court rejected the respondent court's position that cross-examination may be dispensed with. While representation proceedings are investigative in character, where two rival unions claim representation the case becomes one of the adversary type and has to be decided according to lawful evidence. The Court quoted the statutory phrase and explained that the words "appropriate hearing upon due notice" clearly connote that the intervening parties must be given opportunity not only to present their witnesses but also to cross-examine those of the adversary, for there is no real hearing when the party is not given opportunity to test, explain, or refute. Cross-examination, the Court said, is one of the most efficacious tests for the discovery of truth. That the Court of Industrial Relations is only quasi-judicial and not bound by strict rules of evidence does not mean it can dispense with the most substantial rules, those shown by experience to be essential in arriving at the truth.

On the third issue, the Court held that once Padilla's testimony is discarded for lack of opportunity for cross-examination, the exhibits he identified must be equally rejected with it, there being no independent ground for their admissibility. Without that testimony, the case for BLU cannot stand, and the election called for is not justified. The Court also rejected the respondent court's claim that it had examined the signatures in the membership rolls and found them genuine, because this was nowhere mentioned in the challenged order, and the appellant had no notice that authenticity was in issue and no opportunity to adduce proof on the point. Ex parte findings formulated in the absence of the applicant, without opportunity for a hearing thereon, are not sufficient to make a prima facie case. The Court nevertheless concluded that the interest of justice would be better served by remanding the case for a proper hearing in accordance with law.

Doctrine

First, although a representation proceeding begins as investigative in character, it becomes adversary once two rival unions claim representation, and it must then be decided according to lawful evidence. Second, the statutory requirement of an "appropriate hearing upon due notice" means the parties must be allowed not only to present their own witnesses but also to cross-examine those of the adversary; there is no real hearing without that opportunity. Third, a quasi-judicial body is not bound by strict rules of evidence, but it cannot dispense with the essential rules, including cross-examination, that experience shows are necessary to arrive at the truth. Fourth, where a motion to strike out testimony is deferred, the court must rule on it before submitting the case for decision, so that the movant may know whether rebuttal evidence is needed. Fifth, exhibits identified solely through testimony that is stricken must fall with that testimony absent an independent ground for their admissibility.

Disposition

The challenged orders of the Court of Industrial Relations were revoked and set aside, and the records were remanded for a rehearing conformable to the opinion, with costs against the Better Buildings Labor Union.

Remember This

Memorize this line: a representation contest between rival unions is adversary, and the "appropriate hearing upon due notice" required by the Industrial Peace Act includes the right to cross-examine the opposing union's witnesses. Examiners use this case on due process in quasi-judicial and administrative bodies, and on the limits of the Court of Industrial Relations' freedom from strict rules of evidence.