INTERNATIONAL TEL. & TEL. CORP., IND. PROD. DIV. v. NLRB
| Citation | 294 F.2d 393 |
| Decision Date | 28 August 1961 |
| Docket Number | No. 17109.,17109. |
| Parties | INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, INDUSTRIAL PRODUCTS DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John F. O'Hara and Anthony T. Oliver, Jr., Los Angeles, Cal., for petitioner and respondent.
Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Asso. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel and Russell Specter, attys., National Labor Relations Board Washington, D. C., and Daniel J. Harrington, Los Angeles, Cal., for respondent and petitioner.
Before BARNES and MERRILL, Circuit Judges, and CROCKER, District Judge.
This petition for review of a final order of the National Labor Relations Board and cross-petition for enforcement raise the question of whether or not a company employer can defend an unfair labor practice charge for failing to bargain collectively by asserting that the employee representative was not validly elected in that two employees, through company inadvertence, were not given an opportunity to vote during their working hours as were other employees, where the votes of these two employees could have affected the outcome of the election.
The NLRB held that the defense was without merit. We think that the NLRB did not abuse its discretionary power.
The facts are as follows: Two unions, the International Brotherhood of Electrical Workers (IBEW), and the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW), sought to represent the same unit of employees. An election was planned between the contesting unions, and a third choice of no union. Pursuant to NLRB practice, the company submitted a list of employees eligible to vote to the NLRB representative. The company failed to include in this list two janitorial workers who worked an evening shift. It is stipulated that the oversight of the janitorial workers was through inadvertence and not through bad faith.
An election was held during the day shift when all but the janitorial workers had an opportunity to vote on company time. Since this election was declared a nullity for reasons not pertinent here a second election was held under similar circumstances. The two janitorial workers took time off from their daytime jobs to vote at both these elections thereby losing time and pay.
As a result of these elections the company was eliminated from the ballot, but a further vote was necessary for one union to obtain a majority. This election was also held during the day shift. Seventy-three of the approximately eighty eligible employees cast their ballots — thirty-seven for the UAW, thirty-six for the IBEW. Neither of the janitorial employees voted.
We are satisfied from the affidavits of the employees and the findings of the NLRB that both of these employees would have had to undergo considerable expense, inconvenience and possible loss of their daytime jobs in order to vote. At least one of these employees made some attempt to call and inquire about his voting rights. Other employees were allowed time off from their jobs and were put to no substantial inconvenience to vote.
Over appropriate objection of the company and the opposing union, the UAW was certified by the NLRB as the exclusive representative of the bargaining unit. The company has since refused to bargain collectively, contending that the election was invalid.
The case comes here upon the company's petition to review the finding that it has committed an unfair labor practice in refusing to bargain. The NLRB has cross-petitioned to enforce its order to cease and desist from refusing to bargain.
Jurisdiction is conferred upon this court to review a final...
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