309 F.2d 664 (4th Cir. 1962), 8710, N. L. R. B. v. Jesse Jones Sausage Co.

Docket Nº:8710.
Citation:309 F.2d 664
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JESSE JONES SAUSAGE COMPANY and Jones Abattoir Company, Respondent.
Case Date:November 05, 1962
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 664

309 F.2d 664 (4th Cir. 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.

November 5, 1962

Argued Oct. 11, 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. McMurtie, 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.

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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 36 1 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 he 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., 167 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.

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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...

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