386 F.2d 571 (4th Cir. 1967), 11176, N. L. R. B. v. Carolina Natural Gas Corp.

Docket Nº:11176.
Citation:386 F.2d 571
Case Date:November 10, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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386 F.2d 571 (4th Cir. 1967)




No. 11176.

United States Court of Appeals, Fourth Circuit.

November 10, 1967

Argued June 1, 1967.

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Malcolm D. Schultz, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Solomon I. Hirsh, Atty., N.L.R.B., on brief) for petitioner.

Young M. Smith, Hickory, N.C. (Emmett C. Willis, Hickory, N.C., on brief) for respondent.

Before SOBELOFF, BOREMAN and CRAVEN, Circuit Judges.

SOBELOFF, Circuit Judge:

The National Labor Relations Board seeks enforcement of the order it issued upon its finding that the Carolina Natural Gas Corporation violated section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) by refusing to bargain with the duly elected representative of its production and maintenance employees. Resisting enforcement, the Company challenges the validity of the representation election and the resulting certification of the International Chemical Workers Union.

In August, 1964, the Union filed a standard petition with the Board's Regional Director in order to initiate representation proceedings. A representation hearing was held to ascertain the employees who would be entitled to vote at the proposed election.

At the hearing, Company Vice-President in charge of operations, James Buchanan, in response to questioning by counsel, enumerated and described employee classifications, which the Company contended comprised 'production and maintenance employees.' Although 17 employment categories were discussed, 'order dispatchers and field clerks' was the only job designation which went completely undescribed. The sole allusion to these employees in the record is Buchanan's three-word affirmative response to a question propounded by company counsel asking only whether the Company employed 'order dispatchers and field clerks.' This colloquy occurred approximately mid-way through Buchanan's exposition of the duties of his company's employees. At the conclusion of Buchanan's direct examination, company counsel moved the inclusion into the bargaining unit of 'those people and those jobs who have been described by the witness.' The union representative stipulated to their incorporation. Later in the hearing, the Company's counsel stipulated that office clericals were to be excluded from the unit.

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As a result of the hearing, the Regional Director ordered a secret ballot election for 'all production and maintenance employees of the Employer * * *, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act.' Of the 47 employee votes cast at the subsequent election, 22 supported the Union, 20 opposed it, and 5 were challenged by the Union as clerical workers not within the unit. The Regional Director upheld the challenges and certified the Union. Following the Board's affirmance, the Company's refusal to bargain, the General Counsel's complaint and the Company's answer, the Trial Examiner granted the General Counsel's motion for judgment on the pleadings since he found no need for an evidentiary hearing. The Board affirmed and issued the order, enforcement of which is sought here.

The Company has refused to obey the order on the grounds that the challenges were improperly sustained and that the election was vitiated by procedural irregularities and electioneering. Its primary contentions are that the Union should be bound by its stipulation to include field clerks within the unit and that a hearing must be held to determine the validity of the election. We find no merit in either contention and enforce the Board's order.

The stipulation regarding the field clerks was so shrouded in ambiguity as to merit no binding effect. Nine job classifications had been described in some detail by Mr. Buchanan before the fleeting reference to field clerks, following which six more categories were fully explored. When Mr. Buchanan terminated his direct testimony, the attention of both counsel centered on the disputed seventeenth category of welders, who apparently had some supervisory functions. It was in this setting that the Union's counsel was asked to stipulate as to those categories 'described.' Not only was there no description of the duties of field clerks, but there was also no identification of the people who served in that capacity. In illuminating contrast is the stipulation of company counsel that office clericals were to be excluded. Immediately before that stipulation, Buchanan identified each person within the category and gave a detailed analysis of her duties. In light of the circumstances surrounding the stipulation regarding field clerks, the Regional Director cannot be faulted for independently investigating the disputed category or for subsequently sustaining the challenges.

The Director's investigation, which offered all parties a full opportunity to submit and present written evidence, revealed a close similarity between the duties of field clerks and office clericals and a wide divergence between the activities of production and maintenance employees and those of field clerks. Like the excluded office clericals, all five of the challenged field clerks are women. In describing the other 16 categories, Mr. Buchanan continually referred to the workers as men, and understandable choice of language in light of the duties of these workers. Buchanan's list included gas pipe layers, ditch diggers, appliance installers, welders, servicemen, warehousemen, regulator repairmen and deliverymen. The Director found that the primary functions of a field clerk are to keep records, receive and relay telephone calls from the customers to the servicemen and to collect money. The five employees in question spend up to 95 per cent of their time in an office...

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