NLRB v. Schapiro & Whitehouse, Inc.

• Decision Date: 02 February 1966
• Docket Number: No. 9906.,9906.
• Citation: 356 F.2d 675
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHAPIRO & WHITEHOUSE, INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

356 F.2d 675 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHAPIRO & WHITEHOUSE, INC., Respondent.

No. 9906.

United States Court of Appeals Fourth Circuit.

Argued October 4, 1965.

Decided February 2, 1966.

Nancy M. Sherman, Atty., N.L.R.B., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Wayne S. Bishop, Atty., N.L.R.B., on brief), for petitioner.

Marvin C. Wahl, Baltimore, Md. (Blanche G. Wahl, and Wahl & Wahl, Baltimore, Md., on brief), for respondent.

Before BOREMAN and BRYAN, Circuit Judges, and MARTIN, District Judge.

ALBERT V. BRYAN, Circuit Judge:

Our first opinion in this case, NLRB v. Schapiro & Whitehouse, Inc., 353 F.2d 513 (4 Cir., 1965) related in detail the facts incident to the contest of the union's election as the bargaining representative of Schapiro's employees. Since our request the Board has opened the 3 sealed ballots and reports them as against the union. Thus the tally stands at 89 for and 88 against the union. In consequence we now decide Schapiro's threefold attack upon the election.

1. The Finkelstein ballot, presumably still unopened and a "No" vote, was challenged by the union on the ground that he was a supervisor. The Regional Director deemed unnecessary a determination of whether Finkelstein was a supervisor, but recommended rejection of the ballot on the ground that "he did not have sufficient community of interest with the other employees to warrant his inclusion in the unit" previously designated for bargaining representation. The Board followed the Regional Director's recommendation.

It was a "consent election" upon a stipulation signed by the union and the employer, and approved by the Board's agent and its Regional Director. "Eligible voters" and "The Appropriate Collective Bargaining Unit" were by agreement limited to:

"All production and maintenance employees, including truckdrivers at the Employer\'s Baltimore, Maryland, plant; but excluding office clerical employees, watchmen, guards and supervisors as defined in the Act."

Pursuant to the further provisions of the agreement "an accurate list of all the eligible voters, together with a list of the employees, if any, specifically excluded from eligibility" was furnished the Board by the parties. The list was approved by the union's representative as evidenced by his signature thereon.

Finkelstein was listed among the qualified voters. Aware before the election of his employment status, the union's deliberate abstention from any question of his inclusion in the representation unit, we think, barred its challenge of him after the election. The point is trenchantly made by Judge Wisdom in Shoreline Enterprises of America, Inc. v. NLRB, 262 F.2d 933, 943 (5 Cir. 1959) in these words:

"The basic policy — we endorse it — is that a company and a union must be held to their agreements, as any other party is held to an agreement. In cases involving a pre-election resolution of eligibility issues between a company and union it is especially important to hold the parties to their contract. To permit either to repudiate a pre-election agreement and redetermine the eligible members of a bargaining unit, after an election has been held, would enfeeble the consent election procedure."

Of course, the Board has the duty and power to supervise an election. The Board cannot delegate or abdicate this prerogative by or through an agreement between labor and management. Shoreline Enterprises of America, Inc. v. NLRB, supra, 262 F.2d 933, 943 (5 Cir. 1959). Nevertheless, this responsibility does not entitle the Board to abrogate an employer-union agreement unless, of course, the agreement impairs the opportunity of any eligible unit members to vote.

In NLRB v. Joclin Manufacturing Company, 314 F.2d 627, 633 (2 Cir. 1963), the Regional Director allowed two employees to vote who were not within the bargaining unit as defined by an employer-union agreement. There was no specific list of eligibles. The stipulation was that "office, clerical and professional employees, guards and supervisors" should be disqualified to vote. Nevertheless the Regional Director permitted "plant clericals" to vote, on the basis that the agreement excluded only office clericals. The Court overruled the Board in its approval of the Director's ruling, and said:

"There may, of course be situations where the agreement reached between company and union as to the appropriate bargaining unit should not be enforced by the Board because it improperly disenfranchises employees, see Shoreline Enterprises of America, Inc. v. N.L.R.B. supra, 262 F.2d at 944-946; but nothing would indicate this to be such a case, and in any event it is the agreement on which the Board is relying."

Our position finds reinforcement in NLRB v. J. J. Collins' Sons, Inc., 332 F.2d 523, 525 (7 Cir. 1964), Judge Castle saying for the Court:

"It is conceded that the Board\'s exercise of `informed discretion\' in defining an appropriate bargaining unit is not to be upset unless the evidence compels a conclusion that it has acted arbitrarily, or from bias, or prejudice. But unlike in the cases cited, the bargaining unit here involved was defined and its limits circumscribed by stipulation of the company and the Union. And the Board\'s exercise of discretion was restricted by the Board to its approval of the unit as submitted by the parties. The factor of `community of interest\' and other elements of Toporek\'s duties might well have formed a rational basis for having included the job in the unit under some descriptive designation identifying it. But the Board did not do so. It did not so exercise the discretion it may have had in such connection. And, considerations applicable when the Board makes its own independent determination defining the appropriate bargaining unit do not control here where it is merely interpreting the language used by the parties to define and limit the unit in a stipulation for a consent election. The primary question here is what the parties intended. N.L. R.B. v. Joclin Manufacturing Company, 2 Cir., 314 F.2d 627, 633-634."

Not only was the disqualification of Finkelstein rested by the Board on a premise — lack of sufficient community of interest with the unit — foreclosed by the agreement, but the union did not even challenge on that score. The idea was solely the Regional Director's.

The Board would dilute the stipulation with the argument that the "parties did not enter into a written and signed agreement which expressly provided that the resolution of eligibility issues therein should be final and binding". The effort is futile. On a form prescribed by the Board, the stipulation didactically spells out who may vote, requires them to be named individually and exacts prior verification of the list by the opposing parties. A declaration of eligibility more conclusive is scarely conceivable.

2. The "erasure ballot" was rejected by the Board for ambiguity in its marking. We think it should have been polled as registering the balloter's intention to say "No".

The pertinent part of the finding of the Examiner as to this ballot is as follows:

"Examination of the original ballot reflects that the marking in the `no\' box is more distinct than the marking in the `yes\' box and there is an indication of a possible attempt at erasure of the marking in the `yes\' box. The Board Agent conducting the election first ruled this ballot `Void\', and after some discussion with the parties of the possible attempt at erasure, changed his rulings and declared it to be a `no\' vote.

The Board Agent then challenged the ballot and recorded it as such in the Tally of Ballots.

"The undersigned has carefully examined the ballot in question and, in

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