NLRB v. Jesse Jones Sausage Company

• Decision Date: 05 November 1962
• Docket Number: No. 8710.,8710.
• Citation: 309 F.2d 664
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JESSE JONES SAUSAGE COMPANY and Jones Abattoir Company, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

309 F.2d 664 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JESSE JONES SAUSAGE COMPANY and Jones Abattoir Company, Respondent.

No. 8710.

United States Court of Appeals Fourth Circuit.

Argued October 11, 1962.

Decided November 5, 1962.

Mary Griffin, Atty., National Labor Relations Board (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Marion Griffin and Alexander B. McMurtrie, Attys., National Labor Relations Board, on brief), for petitioner.

E. C. Brooks, Jr., Durham, N. C. (Brooks & Brooks, Durham, N. C., on brief), for respondent.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Chief Judge.

The National Labor Relations Board here petitions for enforcement of its order of May 5, 1961, issued against the employer upon a finding of violations of sections 8(a) (1) and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (1, 5) (1956). The Board's order, reported at 131 NLRB 46, directs the employer to bargain collectively with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as certified employee representative.

The case arises out of the union's efforts to organize the production and maintenance employees of the company's meat packing plant in Garner, North Carolina. On September 18, 1958, the union filed a representation petition seeking certification as exclusive bargaining agent. On December 16, 1958, the Board directed an election, which was held on January 6, 1959. The tally of the ballots then showed 34 votes for the union, 35 against, 1 void, and 14 challenged. Eight of the challenged ballots had been cast in favor of the union by employees laid off for lack of work shortly before the election.

Because the challenged ballots, if valid, might determine the outcome of the election, the Acting Regional Director conducted an ex parte investigation, after which he recommended in particular that the company's challenges be overruled as to the eight ballots cast by laid-off employees. The Board adopted his recommendation and issued a revised tally on May 29, 1959, now showing 42 votes for the union and 36¹ against. On June 4, 1959, the union was accordingly certified as bargaining agent.

Since that time the company has persisted in its refusal to recognize or bargain with the union, and this forms the basis of the Board's determination that the company is guilty of unfair labor practices warranting the issuance of the present order. The company resists enforcement on the ground that the evidence fails to support the Board's rulings on the eight challenged ballots here in question and that certification of the union is therefore void. The company also takes exception to the ex parte investigation by the Acting Regional Director, during which the challenged ballots were opened and recorded.

I. THE EIGHT CHALLENGED BALLOTS

Here the outcome of the election was decided by the votes of eight employees who admittedly had merely been laid off for lack of work, rather than dismissed for cause. The question as to each was whether he was eligible to vote in the Board election, and in each instance this is to be determined by inquiring whether the employee had at the time of the election a reasonable expectation of re-employment within a reasonable time in the future. Scobell Chemical Co. v. N. L. R. B., 267 F.2d 922 (2d Cir.1959); N. L. R. B. v. Fresh'nd Aire Co., 226 F.2d 737 (7th Cir.1955); Whiting Corp. v. N. L. R. B., 200 F.2d 43 (7th Cir.1952); Marlin-Rockwell Corp. v. N. L. R. B.,² 116 F.2d 586 (2d Cir.), cert. denied, 313 U.S. 594, 61 S.Ct. 1116, 85 L.Ed. 1548 (1941). The employer concedes that such is the correct test for determining voter eligibility, but argues that the employment of the eight employees in question was permanently terminated in 1958 and that therefore none of them had any reasonable expectation of re-employment at the time of the January election.

However, the Board's findings to the contrary are supported by substantial evidence. The record as a whole discloses that the company's business is subject to seasonal fluctuations in that its production and sale of meat products regularly sink to a low level between November and April. As a consequence, the company has followed the practice of reducing its work force during the slack season. It appears that such was the case in 1958. Between October 23 and December 5, in anticipation of the seasonal drop in business, it discharged at least 16 workers, including the eight who later voted in the election. Of these eight, several had experienced winter lay-offs in past years but eventually were recalled to work. When they cast their ballots they expected soon to regain their jobs. This is strongly indicated by the fact that five non-voting co-workers also laid off in 1958 did return to work the following spring. This evidence, including the plant manager's candid admission that the lay-offs could be attributed to the normal winter decline in business, goes far to show that the reduction in working force was regarded by all concerned as only temporary.

In addition to the evidence of a seasonal pattern of lay-off and recall, the Board's decision is fortified by the mutually corroborative testimony by all eight employees that when told that they were being laid off for lack of work, they were individually assured by company officials that jobs would be available to them in March or April, 1959, when business picked up. The plant superintendent did not deny making the promises of recall attributed to him and, although the business manager did make such a denial, his testimony in this regard was discredited by the trial examiner. That resolution of the issue of credibility is based on substantial evidence and may not be attacked on review. N. L. R. B. v. Pugh & Barr, Inc., 231 F.2d 558 (4th Cir.1956); N. L. R. B. v. Schooltimer Frocks, Inc., 224 F.2d 336 (4th Cir. 1955). Compare N. L. R. B. v. Croscill Curtain Co., 297 F.2d 294 (4th Cir. 1961).

While such promises are not...