National Labor Relations Bd. v. Fresh'nd-Aire Company, 11422.

• Decision Date: 16 November 1955
• Docket Number: No. 11422.,11422.
• Citation: 226 F.2d 737
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRESH'ND-AIRE COMPANY, Division of Cory Corporation, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

226 F.2d 737 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FRESH'ND-AIRE COMPANY, Division of Cory Corporation, Respondent.

No. 11422.

United States Court of Appeals Seventh Circuit.

October 13, 1955.

Rehearing Denied November 16, 1955.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Theophil C. Kammholz, Chicago, Ill., Gen. Counsel, David P. Findling, Asst. Gen. Counsel, Frederick U. Reel, Washington, D. C., for N. L. R. B.

Stanford Clinton, Robert A. Sprecher, Chicago, Ill., for Fresh'nd-Aire Co., respondent.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

The Labor Board brings this action seeking to enforce its order of January 7, 1955 requiring respondent to bargain collectively with the Union certified by the Board in proceedings which respondent contends were invalid.

Respondent manufactures principally electric air-conditioning units and fans in Grays Lake, Illinois, a community of about 2,000 population. The business is seasonal. The products manufactured are shipped in interstate commerce. No jurisdictional issue is involved.

On January 30, 1953, the Union filed with the Board a Petition for Certification of Representatives under § 9(c) of the National Labor Relations Act, 29 U. S.C.A. § 159(c), covering all production and maintenance employees. An election was conducted on May 8, 1953. The tally of ballots showed 100 employees cast valid ballots, of which 79 were "for" and 21 "against" the petitioning Union. Respondent filed objections based upon alleged improper conduct on the part of a field examiner of the Board.

About the time the Union filed its petition for election it filed a claim of unfair labor practice against the respondent. The attorney for respondent claims that filing such a charge is often a part of a union's campaign strategy. The Union held organizational meetings at two of which a field examiner for the Board was present. On one occasion, at least, he addressed the employees present stating he was there to obtain information based upon the charge filed by the Union. At another occasion the examiner entered enthusiastically into the social activities of the Union sponsored meeting by playing upon a piano for the entertainment of those present.

The Regional Director recommended that respondent's objections to the election be overruled, and that the Union be certified as the bargaining representative. However, on August 10, 1953, the Board sustained respondent's objections and set aside the election and directed that a second election be held within 30 days. The second election was held on September 3, 1953.

On August 26, 1953, respondent's counsel wrote to the Regional Director of the Board requesting that the Board communicate in some effective manner to the employees of respondent who would be permitted to vote in the September 3, 1953 election:

"1. The exact basis for the setting aside of the election of May 8, 1953;

"2. The employer was not guilty of any conduct which caused the election to be set aside; and

"3. That the Board is not taking sides in the election and is completely disinterested as to which way the employees vote."

This request was refused. At the hearing respondent offered to prove that representatives of the Union informed employees, and many of them so believed, that the reason the Board set aside the first election was due to some illegal or improper conduct on the part of respondent. This offer of proof was rejected by the trial examiner.

Thirty-five employees cast ballots at the September 3rd election. Of 29 valid votes, 13 voted "for" and 16 voted "against" the petitioning Union. Forty-five ballots were challenged. Respondent did not file objections to the conduct of the election or conduct affecting the results of the election. Section 102.61 of the Board's Rules and Regulations provides that any such objections shall be filed within 5 days after the Tally of Ballots has been furnished.

Since the number of challenged ballots was sufficient to affect the results of the election, the Regional Director investigated and reported on the challenged ballots on October 5, 1953. He recommended no disposition be made of 4 challenges, that 10 be sustained, and 31 be overruled. Of the 31 challenges overruled, 30 were in connection with employees who had been laid off prior to the election and who had voted by mail ballot. On August 24 respondent had objected to any employee being permitted to vote by mail. A revised Tally of Ballots was issued on January 29, 1954 which disclosed that 42 employees had voted for the Union, 18 had voted against the Union and 4 were challenged.¹

Respondent points out that at the peak of its manufacturing season it had 192 employees, and contends that it was unfair for the Board to order an election at a time when it had only 35 employees at work. In the instant case the Board directed that temporarily laid-off employees were eligible to vote. The Regional Director obtained from respondent a list of employees who were in a laid-off status. The Company's list showed 93, each of whom was furnished with a ballot to be cast by mail. 30 of such employees did cast their ballots. Respondent contends that none of these ballots should be counted or, at least, the ballots of the laid-off employees who had not yet been re-employed should not be counted.

Did the Board err in counting the ballots of 30 laid-off employees? Whether such an employee is eligible to vote in a Board election is a question to be determined by his reasonable expectation of re-employment within a reasonable time in the future. Whiting Corporation v. National Labor Relations Board, 7 Cir., 200 F.2d 43, 45; Marlin-Rockwell Corporation v. National Labor Relations Board, 2 Cir., 116 F.2d 586, 588. The Board customarily directs that "temporarily laid-off employees" are eligible to vote. See cases cited in Whiting Corporation v. National Labor Relations Board, 200 F.2d 43, 45. We think there is sufficient...