NLRB v. Schapiro & Whitehouse, Inc.

• Decision Date: 03 November 1965
• Docket Number: No. 9906.,9906.
• Citation: 353 F.2d 513
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHAPIRO & WHITEHOUSE, INC., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

353 F.2d 513 (1965)

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

No. 9906.

United States Court of Appeals Fourth Circuit.

Argued October 4, 1965.

Decided November 3, 1965.

Nancy M. Sherman, Attorney, N. L. R. B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Wayne S. Bishop, Attorney, 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, Chief District Judge.

ALBERT V. BRYAN, Circuit Judge:

The National Labor Relations Board found that Schapiro & Whitehouse, Inc. had unwarrantedly refused to bargain with the union certified by the Board as its employees' representative,¹ and ordered the employer to desist from further refusal. 148 NLRB No. 102 (September 11, 1964); National Labor Relations Act § 8(a) (5) and (1), 29 U.S.C. § 158(a) (5) and (1). Answering the present petition of the Board to enforce its decision, the employer denied the union's representation of the employees, arguing that the election of the union was invalid. §§ 10(e) and 9(d) of the Act, 29 U.S.C. §§ 160(e) and 159(d).

No final decision can be made of the election contest, we think, until the Board has counted three ballots which it has found free of challenge but has never opened. We shall stay further proceedings here until these votes have been canvassed.

A consent election was conducted by the Board on August 30, 1963 upon a written stipulation between the company and the union approved by the Board. Among other things the stipulation required the parties to submit to the Regional Director lists of the employees eligible and ineligible to vote. Also, it prescribed as the unit to participate in the election all production and maintenance employees. Before the polling began on election day, the requisite lists were delivered to the union representative, examined by him and endorsed with his signature as "inspected". They were then filed with the Board agent. The count of the ballots after the election showed 89 ballots for the union, 85 against it, and 7 challenged.

The employer disputed the election upon the Regional Director's rulings, all afterwards adopted by the Board, in (1) sustaining the union's challenges to the "Finkelstein" ballot and the "erasure" ballot, and (2) holding harmless campaign leaflets circulated by the union among the employees, almost all of whom are Negroes, assertedly containing an appeal to race for their support. The Finkelstein ballot was rejected because the Board found him not within the stipulated electorate, the erasure...