NLRB v. GENERAL TUBE COMPANY

• Decision Date: 13 May 1964
• Docket Number: No. 15594.,15594.
• Citation: 331 F.2d 751
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL TUBE COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

331 F.2d 751 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL TUBE COMPANY, Respondent.

No. 15594.

United States Court of Appeals Sixth Circuit.

May 13, 1964.

Elliott Moore, N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Morton Namrow, Attys., N. L. R. B., Washington, D. C., on the brief, for petitioner.

Richard F. Hooker and James L. Stokes, Grand Rapids, Mich., Richard F. Hooker, Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., on the brief, for respondent.

Before CECIL and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

EDWARDS, Circuit Judge.

The National Labor Relations Board petitions herein for enforcement of its order requiring respondent to engage in collective bargaining with a union. This union (the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO) had won a hairline victory in a consent election in respondent's plant by a vote of 33 to 32 and had been certified collective bargaining agent by the NLRB.

Before this court the entire argument pertains to the eligibility to vote of a female employee, Lois Ware, whose ballot was challenged by respondent company. The Regional Director subsequently ruled this ballot should be counted, and the parties appear to concede that its validity determined the one vote majority by which the union was certified.

The pertinent facts were stipulated by the parties as follows:

"(c) Lois Ware

"(1) Was employed by Respondent in the unit set forth in the Agreement for Consent Election, on the eligibility date set forth in the Agreement for Consent Election and on August 21, 1962, the date of the NLRB election in this case.

"(2) Punched her time card `in\' at 7:00 a. m. and `out\' at 4:01 p. m. on August 21, 1962, and was paid as were all other employees on that shift on an eight-hour basis.

"(3) Notified her production foreman at about 8:30 a. m. on August 21, 1962, that August 21, 1962, would be her last day of work for the Respondent.

"(4) Entered the line to vote in the NLRB election at about 3:45 p. m., August 21, 1962, and after the polls opened cast a challenged ballot. Neither she nor any other employee engaged in production work after being released to vote.

"(5) Worked on the second floor of Respondent\'s plant on August 21, 1962, which was the same floor on which the voting in the aforementioned NLRB election took place.

"(6) After casting her ballot, punched `out\' at the time clock located on the first floor of Respondent\'s plant at 4:01 p. m., on August 21, 1962, and did not return to work for Respondent thereafter.

"(7) Except to the extent indicated above, worked in the manner and at the time scheduled to work on August 21, 1962."

On these facts the Regional Director held Lois Ware's vote should be counted, stating "the test for determining eligibility is the individual's actual status on the eligibility and election dates. It is immaterial that an employee gives notice of quitting prior to an election." He based his decision on prior NLRB decisions on similar circumstances. Otarion Listner Corp., 124 N.L.R.B. 880 (1959); Personal Products Corporation, 114 N.L. R.B. 959 (1955).

It appears from the stipulated facts and was conceded at appellate hearing that Lois Ware was paid by respondent, under the terms of the consent election, for the time between 3:45 and 4:01 p. m. when she stood in line and cast her disputed ballot.

Respondent, however, contends that when Lois Ware announced her intention to quit, she thereby lost employee status; hence, her eligibility to vote. Respondent contends that this occurred at least by 3:45 p. m. — the moment she laid down her work and lined up to vote. Respondent also contends that this conclusion is a matter of law governed by the National Labor Relations Act § 2(2) sic. and 9(a), and not subject to determination by the Regional Director to whom the terms of the consent election gave "final and binding" authority to determine "the eligibility of voters."

We have examined both sections of the act cited (as well as others apparently more pertinent) and perceive no standard therein which as a matter of law deprives the National Labor Relations Board of power to declare an employee eligible to vote where she was on the eligible list and worked the full day of the election. See Personal Products, supra.

Actually respondent's argument is based on a line of cases where the employee whose status was in dispute did not work on election day and was not on the payroll at the moment he voted.

In Whiting Corp. v. N. L. R. B., 200 F.2d 43 (C.A. 7 1952), the disputed vote was cast on October 18, 1950, by an elderly employee who last worked for the employer September 26, 1950. He had told many witnesses that he never intended to work again and indeed did not. On this state of facts the 7th...