329 U.S. 324 (1946), 60, Labor Board v. A. J. Tower Co.

Docket NºNo. 60
Citation329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322
Party NameLabor Board v. A. J. Tower Co.
Case DateDecember 23, 1946
CourtUnited States Supreme Court

Page 324

329 U.S. 324 (1946)

67 S.Ct. 324, 91 L.Ed. 322

Labor Board

v.

A. J. Tower Co.

No. 60

United States Supreme Court

Dec. 23, 1946

Argued November 21, 1946

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE FIRST CIRCUIT

Syllabus

A consent election of a collective bargaining agent under the National Labor Relations Act was held pursuant to an agreement between the employer and the union providing that the regional director of the National Labor Relations Board should supervise the election and that his determination on any question of eligibility of voters should be final. The employer provided a list of eligible employees, and had observers at the polls with the right to challenge the eligibility of voters. After the union had been elected by a close vote and the results had been announced, the employer sought to challenge the eligibility of a voter included in the list it had furnished and whose eligibility was unchallenged at the polls. This, together with a vote challenged by the union and not counted, might have changed the result. The regional director found that the employer had waived its right to challenge the vote or to object to the election on this ground, and that the union had received a majority of the valid votes cast. The employer refused to bargain with the union on the ground that it had not been validly elected. The Board sustained the regional director's finding as being in accord with its established policy, and ordered the employer to bargain with the union.

Held:

1. The Board's order is sustained. P. 335.

2. A proper application of the rule prohibiting post-election challenges, even though the result of the election might have been different had the challenge been made and sustained, did not deprive the Board of jurisdiction to find the employer guilty of an unfair labor practice in refusing to bargain with the union. P. 333.

3. The rule forbidding the eligibility of a voter to be challenged after the votes have been cast is in accordance with the National Labor Relations Act and the principle of majority rule, and is justified by practical considerations. Pp. 330-333.

4. The fact that the employer may have been honestly mistaken as to the eligibility of the voter is no justification for disregarding the rule. P. 333.

Page 325

5. A provision in the agreement for the election as to the filing of objections "to the conduct of the ballot" and "to a determination of representatives based on the results thereof" within five days after issuance of the "Tally of Ballots" did not constitute a waiver of the rule, since there is a clear distinction between objections and challenges in electoral parlance. P. 334.

6. In the absence of evidence that the representatives of the Board and the employer discriminated against anti-union employees in preparing the eligibility list or in raising timely eligibility issues, it cannot be said that the interests of anti-union employees were inadequately represented. Pp. 334-335.

152 F.2d 275, reversed.

The National Labor Relations Board sustained the validity of the election of a union as a collective bargaining representative and ordered the employer to bargain with it. 60 N.L.R.B. 1414. The Circuit Court of Appeals set aside the order. 1521.2d 275. This Court granted certiorari. 328 U.S. 827. Reversed, p. 335.

MURPHY, J., lead opinion

MR. JUSTICE MURPHY delivered the opinion of the Court.

The issue here concerns the procedure used in elections under the National Labor Relations Act1 in which employees choose a statutory representative for purposes of collective bargaining. Specifically, we must determine the propriety of the National Labor Relations Board's refusal to accept an employer's post-election challenge to

Page 326

the eligibility of a voter who participated in a consent election.

The respondent and a union entered into an agreement to conduct an election by secret ballot on May 5, 1944, under the supervision of the Board's regional director, to determine whether the employees at respondent's Roxbury plant in the unit defined [67 S.Ct. 326] in the agreement desired to be represented by the union. The agreement was approved by the regional director, and provided that the election was to be held "in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board."

The agreement set forth the qualifications for participation in the election. Only those who appeared on the payroll on April 21, 1944, were eligible; included were those employees who did not work at the time because they were ill, or on vacation, or temporarily laid off, or in the armed forces. The respondent had the duty of furnishing the regional director with an accurate list of the eligible voters, together with a list of the ineligible employees.2 The list of eligible voters was duly submitted on May 1, 1944.

The agreement further provided that both the union and the respondent could have observers at the polling places to assist in the handling of the election, to challenge the eligibility of voters, and to verify the tally. If challenges were made and if they were determinative of the results of the election, the regional director was to investigate the challenges and issue a report thereon. All objections "to the conduct of the ballot" or "to a determination of representatives based on the results thereof" were to be filed with the regional director within five days after issuance of the "Tally of Ballots." If the regional director

Page 327

sustained the objections, he had the power to void the results and order a new election. The determination of the regional director was to be final and binding upon any question, "including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election." Cf. Article III, §§ 10 and 12, of the Board's Rules and Regulations (Series 3, effective Nov. 26, 1943).

The balloting took place on May 5 in accordance with this agreement. After the ballots were counted, the union and the respondent signed a "Tally of Ballots," in which the regional director certified that, of the 230 valid votes counted, 116 were cast for the union and 114 against it, with one other ballot being challenged by the union.3 Four days later, on May 9, respondent's counsel wrote the regional director that, subsequent to the election,

it came to the attention of the management of the Company that Mrs. Jennie A. Kane, one of the persons who voted at the election, was not at the time an employee of the Company.4

The letter explained that Mrs. Kane was employed by respondent from March 16, 1943, through March 24, 1944, but that, after the latter date, she had never reported again for work, and had never appeared at the plant except for purpose of voting on May 5. It

Page 328

was admitted that the respondent,

not being advised by Mrs. Kane of any intention on her part to leave their employ, assumed that she was ill, and continued her among their list of employees, and therefore did not exclude her from the list of employees they believed eligible to vote.

The letter accordingly challenged Mrs. Kane's right to vote, as well as the ballot cast by her. A hearing was requested for the purpose of passing upon the one ballot challenged by the union. If that challenge were not sustained and the ballot proved to be a vote against the union, Mrs. Kane's [67 S.Ct. 327] ballot would become material to the result of the election; on that condition, the respondent requested a hearing on its challenge to Mrs. Kane's vote.

A hearing on the matters raised by this letter was held before the regional director. He subsequently made a report in which he found that respondent included Mrs. Kane's name on the list of eligible voters submitted on May 1 on the assumption that she was ill and had not quit her job; that respondent made no attempt between May 1 and May 5 to remove Mrs. Kane's name from the list, although, prior to the election, respondent received by mail a notice of Mrs. Kane's claim for unemployment compensation; that respondent's observers at the polls had not challenged Mrs. Kane when she voted in their presence, and that these observers certified before the ballots were counted that the election had been properly conducted. The regional director also found that the evidence was conflicting as to Mrs. Kane's actual status.5 But he concluded that, under the circumstances, the respondent had

Page 329

waived its right to challenge her vote or to object to the election on this ground. This determination made it unnecessary for him to rule on the ballot previously challenged by the union, since it could not affect the result. He thus found that the union had received a majority of the valid votes cast, and was the exclusive representative of the employees in the appropriate unit.

The respondent thereafter refused to bargain with the union in question. Upon a complaint issued by the Board, the respondent admitted its refusal, but denied that the union had ever been designated by a majority of the employees in the appropriate unit. It asserted that the election of May 5 was inconclusive on the subject, because, if Mrs. Kane's ballot were subtracted from the union's total and if the ballot challenged by the union were opened upon overruling the challenge and proved to be against the union, the outcome of the election would be a tie vote. The Board, after the usual proceedings, held that it would not disturb the rulings of a regional director on questions arising out of a consent election "unless such rulings appear to be unsupported by substantial evidence or are arbitrary or capricious," and that no such grounds for disturbing the ruling were present in the instant case. As an alternative ground for its action, the Board held that the regional director's refusal under the Circumstances...

To continue reading

Request your trial
81 practice notes
  • Representation-Case Procedures
    • United States
    • Federal Register December 22, 2011
    • 22 Diciembre 2011
    ...\6\ Northeastern University, 261 NLRB 1001, 1002 (1982), enforced, 707 F.2d 15 (1st Cir. 1983). \7\ NLRB v. A.J. Tower Co., 329 U.S. 324, 331 \8\ Each of the major changes adopted in this final rule is independently justified, and thus the Board has decided to adopt each of them, while also......
  • Representation-Case Procedures
    • United States
    • Federal Register February 06, 2014
    • 6 Febrero 2014
    ...and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.'' NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). ``The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters whi......
  • Representation-Case Procedures
    • United States
    • Federal Register December 15, 2014
    • 15 Diciembre 2014
    ...and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.'' NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). ``The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters whi......
  • Representation-Case Procedures
    • United States
    • Federal Register April 30, 2012
    • 30 Abril 2012
    ...to the working of the election mechanism and to the process of counting the ballots accurately and fairly.'' Cf. NLRB v. A.J. Tower Co., 329 U.S. 324, 334 & fn.7 Under the basic structure of Section 9(c), some issues must be litigated after the election (such as the fairness of the elec......
  • Request a trial to view additional results
70 cases
  • Randell Warehouse of Arizona Co., (1999)
    • United States
    • 27 Julio 1999
    ...the leadworkers. Of course, the Board will not permit challenges in the guise of “objections” after the election. NLRB v. A. J. Tower Co., 329 U.S. 324 (1946); NLRB Field Manual 11360. The leadworkers appeared on the eligibility list prepared by the Employer and apparently voted without cha......
  • T.K. Harvin & Sons, (1995)
    • United States
    • 28 Febrero 1995
    ...this list is placed in the joint custody of the elec-tion observers, and it is their duty to maintain it. SeeNLRB v. A. J. Tower Co., 329 U.S. 324, 326, 67 S.Ct.324, 325, 91 L. Ed. 322 (1946); NLRB Form 722 ‘‘In-structions to Election Observers.’’ Martinez also statedthat no eligible voters......
  • D & D Transportation Co., (1952)
    • United States
    • 29 Agosto 1952
    ...reaffirms his position as setforth in his original report, that the decision inNationalLaborRelationsBoard v. A. J. Tower Company,329 U. S. 324: 60 NLRB 1414, is controlling inthis matter in that, regardless of the merits of the situation,the objections,as well as the exceptions,of the Empl......
  • T & L Leasing, (1995)
    • United States
    • 15 Agosto 1995
    ...matter, the Board hasbroad discretion to determine the conditions for conducting rep-resentation elections, NLRB v. A.J. Tower Co., 329 U.S. 324,330, 67 S.Ct. 324, 327, 91 L.Ed 332 (1946); NLRB v. MorganHealth Care Center, Inc., 618 F.2d 127, 128 (1st. Cir. 1980),we here deal with an electi......
  • Request a trial to view additional results
3 firm's commentaries
  • Comments on NLRB's Proposed Rule Regarding Union Elections (RIN 3124-AA08
    • United States
    • JD Supra United States
    • 25 Agosto 2011
    ...or efficient elections – e.g., having “employees’ votes . . . recorded accurately, efficiently and speedily.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946). See also AFL v. NLRB, 308 U.S. 401, 409 (1940) (the Wagner Act was designed in part to avoid “long delays in the procedure . . . fo......
  • District of Columbia District Court ruling in Chamber of Commerce, et al. v. NLRB
    • United States
    • JD Supra United States
    • 14 Mayo 2012
    ...out the basic steps by which such a question is to be settled, it left it to the Board to fill in the gaps. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946) (“Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insu......
  • Labor Law - The Basics 2013
    • United States
    • JD Supra United States
    • 29 Agosto 2013
    ...unit. It is sufficient that the unit be “an appropriate unit.” If the petitioner seeks a unit 2 Id. at 245. 3 NLRB v. A.J. Tower Company, 329 U.S. 324 (1946).Snell & Wilmer Labor Law: The Basics | 5 which the Board finds appropriate, alternative proposals will not be considered. P. J. Dick ......
1 books & journal articles
  • Poster wars: the NLRB and the controversy over an 11-by-17-inch piece of paper.
    • United States
    • The Journal of Corporation Law Vol. 38 Nbr. 2, January - January 2013
    • 1 Enero 2013
    ...153-56 (2006). (34.) Id. (35.) Id. [section] 156. (36.) City Disposal Sys., 465 U.S. at 835. (37.) NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (38.) Notification of Employee Rights Under the National Labor Relations Act, Final Rule, 76 Fed. Reg. 54,006, 54,008 (Aug. 30, 2011) (codified at 29 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT