Delta Drilling Company v. NLRB, 25790.
| Decision Date | 13 January 1969 |
| Docket Number | No. 25790.,25790. |
| Citation | 406 F.2d 109 |
| Parties | DELTA DRILLING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lee Smith, George C. Dunlap, Blanchette, Smith & Shelton, Edward Kliewer, Jr., Kliewer & Hood, Dallas, Tex., for petitioner.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert E. Williams, William Wachter, Attys., Washington, D. C., for respondent.
Before JONES and COLEMAN, Circuit Judges, and CHOATE, District Judge.
In this case the Board found that Delta Drilling Company violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the certified representative of its employees. The company filed its petition to review and set aside the order; the Board asks that the order be enforced in full. The record reveals that the election was not held, as the consent agreement specified, in accordance with the applicable procedures and policies of the Board. The Board therefore should have set the election aside. We deny enforcement.
Pursuant to the agreement, the consent election was conducted in August, 1966. Twenty ballots were cast for the union, fifteen for the employer, and five were challenged. Delta Drilling filed objections to the conduct of the election and requested a hearing. The Regional Director, after an ex parte investigation, sustained challenges to four ballots but otherwise overruled the employer's objections.
The employer filed exceptions to the report of the Regional Director, but these the Board refused to consider. A motion was then filed with the Director to reconsider his findings. A more extensive investigation followed, again ex parte, and the earlier ruling was reaffirmed. Thus, throughout the entire proceedings, the employer failed in its effort to obtain a full-scale hearing as to its objections, the nature of which will hereinafter be discussed.
Ultimately, in July, 1967, the Union filed an unfair labor practice charge, alleging a refusal to bargain, in violation of Section 8(a) (5) and (1). The employer answered and the General Counsel moved for judgment on the pleadings. After a show cause order, the Trial Examiner denied a hearing on the merits and entered judgment on the pleadings. The Board adopted the Trial Examiner's decision, February 2, 1968.
The circumstances which inspired the employer objections are as follows:
The election took place at several locations and lasted over a period of three days. On one day an agent of the Board, Jerry Dobbs, opened the polls at Rig No. 2 at 6:00 a. m., and then drove 95 miles to Rig No. 60, where he opened the polls at 8:00 a. m. After closing the polls there, he sealed the ballot box, placed it in his car, and began his return trip to Rig No. 2. While en route he stopped at the motel room of a Union representative to "freshen up". He remained in the room less than one hour. Upon his initial investigation, the Regional Director determined that the sealed ballot box remained in the car, and as a result, there was no misconduct by Dobbs sufficient to suggest a violation of the election procedure.
The employer was not satisfied with this conclusion so the Regional Director conducted the more extensive investigation, inviting both parties to offer witnesses. The Director interviewed these witnesses and made this determination: Dobbs had met the Union representative Howell the day before the events in question. The election involved travel through sparsely populated country, so the Union representative volunteered the use of his motel room. Dobbs accepted this offer and on his journey to Rig No. 2, (with the ballot box from Rig No. 60 in his car), stopped at the motel. He parked the car in a parking lot next to the highway, left the ballot box in the back seat, and locked the car doors. Dobbs received directions to Howell's room from the motel owner, Williams. Williams did not recall Dobbs carrying anything with him. Both Dobbs and Howell told the Regional Director that Dobbs used the bathroom, made some phone calls, and engaged in conversation, but did not discuss the election.
While Dobbs was at the motel, B. W. Harden, a tool pusher for the company who had been in charge of the rig during the voting, arrived at the motel and saw Dobbs' car. He called the company vice-president and told him of Dobbs' being in Howell's room. He then observed Dobbs coming from the room but did not notice that he carried anything. The estimates of the time spent in the room varied from 15 minutes to 45 minutes.
Later that afternoon observers selected by both the employer and the Union examined the ballot box and expressed their satisfaction that it had not been tampered with.
In this status of the case, the company vigorously urges that the denial of an evidentiary hearing on its objection to the election was arbitrary and capricious, constituting a denial of procedural due process, was out of conformity with the requirements of the act itself in the denial of an evidentiary hearing as to substantial and material factual issues, and was not in conformity with the Board's established policy concerning the conduct that it requires of its agents in representation elections.
The Board responds that since the company agreed that the Regional Director's determination on all election matters shall be final and binding the Director's disposition of the objections cannot be overturned because they were not arbitrary or capricious or out of line with Board policy.
We agree with the Board that "This case `pivots on the agreement for consent election'", but do not reach the same result as the Board.
The controlling considerations are found in paragraphs 1 and 6 of the agreement, as quoted by the Board in its brief:
The key to the matter is the provision that the election should be held in accordance with "the applicable procedures and policies of the Board". Clearly, if the election was so held the decision of the Regional Director is final, binding, and immune to attack in this Court. On the contrary, if the Director countenanced conduct plainly in violation of established Board policy, then such action is arbitrary and cannot be approved here.
Board policy is to be ascertained from its acts and decisions. The location of this information requires no extensive search.
It will be remembered that the agreement for this consent election was made in 1966. The traveling election, conducted in several different places, took place on August 2, 3, and 4 of that...
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