Buffalo Arms v. NATIONAL LABOR RELATIONS BOARD, 255
| Citation | 224 F.2d 105 |
| Decision Date | 03 June 1955 |
| Docket Number | Docket 23331.,No. 255,255 |
| Parties | BUFFALO ARMS, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Kenefick, Bass, Letchworth, Baldy & Phillips, Buffalo, N. Y., for petitioner; Howard M. Holtzman, New York City, Francis V. Cole, Francis J. Offermann, Jr., and William A. Bain, Jr., Buffalo, N. Y., of counsel.
David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Atty., N. L. R. B., Washington, D. C., and Rosanna A. Blake, Atty., N. L. R. B., Silver Spring, Md., for respondent.
Arthur J. Goldberg, Gen. Counsel, Washington, D. C., Peter J. Crotty, Buffalo, N. Y., H. Howard Ostrin, Cooper, Ostrin & De Varco, New York City, Attys., for United Steelworkers of America, CIO, as amicus curiae.
Before L. HAND, SWAN and HINCKS, Circuit Judges.
This case is before us upon the petition of Buffalo Arms, Inc., to set aside an order of the National Labor Relations Board, and upon the Board's request for enforcement of the order. The order directs Buffalo to cease and desist from refusing to bargain collectively with United Steelworkers of America, CIO, and to take specified affirmative action, including (a) bargaining collectively with the Steelworkers union upon request, and (b) offering reinstatement with back pay, upon application by them, to all employees who went on strike on June 14, 1954 or thereafter in protest against the company's refusal to bargain with the union. There is no dispute that Buffalo did refuse to bargain collectively with the Steelworkers union. The Company contends that its refusal was justified (1) because the consent election held on November 19, 1953, at which the Steelworkers union received a majority of the votes cast by employees in an appropriate unit of Buffalo's employees, was invalid, and (2) because the Regional Director by his Supplemental Report set aside the election, and the agreement under which the election was held made final and conclusive his determination of any question relating to the election.
The facts relative to the election must be stated in some detail. Section 9(c) of the National Labor Relations Act, 29 U.S. C.A. § 159(c), provides for two types of election. One is to be held after a hearing "conducted by an officer or employee of the regional office," 29 U.S.C.A. § 159 (c) (1); the other is after "the waiving of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules of decision of the Board." 29 U.S.C.A. § 159(c) (4). The election of November 19, 1953 purported to be a consent election pursuant to an agreement therefor dated November 10, 1953 between Buffalo, the Steelworkers union and the International Association of Machinists, AFL, and approved by the Regional Director of the Board.1 This agreement waived a hearing, provided for an election by secret ballot under the supervision of the Regional Director, defined the eligible voters, specified that the Regional Director shall prepare a Notice of Election and that the employer, upon the request of and at a time specified by the Regional Director, will post such Notices, and stated:
The quoted provision as to choices to appear on the ballot was obviously applicable, since both the CIO union and the AFL union were signatories to the agreement. However, on November 12, 1953 the AFL union notified the Regional Director that it was withdrawing from the ballot. On the following day the Regional Director sent to Buffalo the Notice of Election to be posted by it. The notice made no mention of the AFL union and the sample ballot, which the notice incorporated, stated that the voters were to vote "Yes" or "No" on the question:
Accompanying the notice received by Buffalo was a copy of the consent election agreement bearing a red-pencil notation that the AFL union had withdrawn from the ballot. Buffalo promptly posted the Notice of Election. On November 16, 1953 Buffalo received from the Regional Director a letter, dated November 13, giving formal notice of the withdrawal from the ballot of the AFL union. Buffalo's counsel immediately wrote the Regional Director that Buffalo, "reserving all its rights in the premises," protests and objects "to the making of this substantial change in the terms and conditions of the election as agreed upon, to the manner of effecting the change, and to the failure to give due and adequate notice thereof to the employer as one of the parties to the agreement." Upon receipt of this letter on November 17, the Regional Director telephoned Buffalo's counsel, but the parties are not in accord as to whether Buffalo was offered an opportunity to withdraw from the consent agreement. On November 18, Buffalo posted a notice urging the eligible voters to exercise their right to vote and reminding them that "a majority of the valid ballots cast will determine the result of the election." The election was held on November 19. There were 435 eligible voters; 403 ballots were cast, of which one was invalid; of the 402 valid ballots, 243 were for the union and 159 against it.
After the result of the election was known, Buffalo wrote the Regional Director reiterating the objections stated in its letter of November 16 and asserting in addition that the withdrawal of the AFL union voided the agreement of November 10th and consequently the election could not have been held legally without a new agreement. On December 2, 1953 the Regional Director issued his report overruling Buffalo's objections, and certified that the Steelworkers union is the exclusive representative of the employees in the unit for purposes of collective bargaining. Once again, by letter of December 7, Buffalo objected. The Regional Director considered this letter a request for reconsideration. He therefore reopened the case, reconsidered the matter and issued a Supplemental Report dated February 8, 1954, in which he withdrew his Report of December 2, 1953, set aside the election, and recommended that the National Labor Relations Board revoke the certification of the CIO union included in that Report. The union filed exceptions to this Supplemental Report. On April 9, 1954 the Board, two members dissenting, sustained the union's exceptions and affirmed the Regional Director's report of December 2, 1953. By letter dated April 20 Buffalo excepted to the Board's order of April 9th, questioning the authority of the Board to issue the order. On June 8, 1954 the Board, the chairman dissenting, denied Buffalo's "request for reconsideration".
The complaint in the unfair labor practice proceeding was filed June 14, 1954. It charged that on December 14, 1953, and at all times thereafter Buffalo refused and still refuses to bargain collectively with the union.2 The complaint also charged that on June 14, 1954 Buffalo's employees went on strike, and that the strike "was caused and prolonged" by Buffalo's refusal to bargain collectively with the union. A hearing was conducted on July 12, 1954 before a trial examiner who issued a report on September 23, 1954 in which he stated that the issues involved had been decided by the Board's order of April 9, 1954 and he did not deem himself authorized to alter or depart from such decision. Accordingly he found that the Steelworkers union had been since December 2, 1953 the certified exclusive bargaining representative of the employees in the specified unit; that Buffalo refused on December 14, 1953 to bargain with the union, and has continued such refusal in violation of section 8(a) (5) of the Act, 29 U.S.C.A. § 158(a) (5); and that the strike of June 14th was caused and prolonged by the employer's unlawful refusal to bargain. Buffalo filed exceptions to the report, which the Board overruled. It adopted the findings, conclusions and recommendations of the trial examiner and issued the order now before us for review.
We turn now to the Company's two contentions...
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