Elm City Broadcasting Corp. v. National Labor Rel. Bd., 119

Citation228 F.2d 483
Decision Date12 December 1955
Docket NumberNo. 119,Docket 23583.,119
PartiesELM CITY BROADCASTING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

John Q. Tilson, Jr., New Haven, Conn., Wiggin & Dana, New Haven, Conn., John D. Fassett, Alfred F. Celentano, New Haven, Conn., of counsel, for petitioner.

Theophil C. Kammholz, General Counsel., Chicago, Ill., David P. Findling, Associate General Counsel, Marcel Mallet-Provost, Asst. Gen. Counsel, and Fannie M. Boyle and John E. Jay, Attorneys, N. L. R. B., Washington, D. C., for respondent.

Before FRANK, HINCKS and WATERMAN, Circuit Judges.

WATERMAN, Circuit Judge.

The Elm City Broadcasting Corporation has petitioned us pursuant to Section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., to review and set aside an order of the National Labor Relations Board reported at 111 N. L. R. B. 980. The Board has petitioned for enforcement of its order. We have jurisdiction under Section 10(e) and (f) of the Act, the alleged unfair labor practices having occurred in New Haven, Connecticut within this judicial circuit.

On December 7, 1953, the American Federation of Television and Radio Artists, A. F. L., the Union here involved, filed with the Board a petition for certification as the collective bargaining agent for certain employees of the Company. After a discussion among representatives of the Company, representatives of the Union, and a representative of the Board, the Company and the Union signed a consent election agreement making the determination by the Board's Regional Director of all questions arising out of the conduct of the election "final and binding" on the parties. Pursuant to this agreement, an election was held on January 15, 1954, in which the Union failed to receive a majority of the votes cast. The Union filed timely objections to the election, and the Regional Director, after investigation, issued a report finding merit to some of the objections and setting aside the election as void. Attempts by the Company to obtain Board review of the Regional Director's determination were denied by the Board.

The Regional Director then ordered another election which was held on June 4, 1954. The Union won this election and was certified. The Company thereafter refused to bargain with the Union, contending that the first election was valid and that the Regional Director was therefore precluded by Section 9(c) (3) of the Act from conducting a second election within twelve months from the date of the first election.

In support of its position that the Regional Director improperly set aside the first election, the Company, at a hearing on the refusal-to-bargain charge and on review before the Board, advanced two contentions which have now been abandoned: (1) that the Company had been misled by the Board representative into signing a consent election agreement making the Regional Director's determination on all issues arising out of the election final and binding upon the parties; and (2) that the Board's Rules and Regulations providing for that type of consent election are in violation of the due process clause of the Fifth Amendment and the provisions of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. and the Taft-Hartley Act.

Under the consent agreement entered into by the Company, the Regional Director's decision is final unless "`arbitrary or capricious or not in conformity with the policies of the Board and the requirements of the Act.'" Buffalo Arms, Inc., v. N. L. R. B., 2 Cir., 1955, 224 F.2d 105, 109. The Company now alleges that the Regional Director's decision setting aside the first election was arbitrary and capricious. However, under Section 10(e) of the Act, unless this issue was raised before the Board, we cannot consider it on appeal unless extraordinary circumstances are shown to exist. See N. L. R. B. v. Seven-Up Bottling Co., 1953, 344 U.S. 344, 350, 73 S.Ct. 287, 97 L.Ed. 377; N. L. R. B. v. Cheney California Lumber Co., 1946, 327 U.S. 385, 389, 66 S.Ct. 553, 90 L.Ed. 739; Marshall Field & Co. v. N. L. R. B., 1943, 318 U.S. 253, 256, 63 S.Ct. 585, 87 L.Ed. 744; N. L. R. B. v. Carlton Wood Products Co., 9 Cir., 1953, 201 F.2d 863, 866, 36 A.L.R.2d 1170. No such extraordinary circumstances are found here.

Therefore, the sole issue on this appeal is whether the Company alleged or sought to prove before the Trial Examiner or the Board that the Regional Director acted arbitrarily and capriciously in his determination upon the merits of the objections to the first election. The Company now contends that at the refusal-to-bargain hearing the Trial Examiner precluded the admission of evidence offered by the Company to prove the arbitrariness of the Regional Director's action in setting aside the first election. The Board argues that the Company alleged arbitrary and capricious conduct...

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  • NLRB v. Air Control Products of St. Petersburg, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 28, 1964
    ...Steel Casting Co., 1 Cir., 1952, 200 F.2d 293; NLRB v. Worcester Woolen Mills Corp., 1 Cir., 1948, 170 F.2d 13; Elm City Broadcasting Corp. v. NLRB, 2 Cir., 1955, 228 F.2d 483; NLRB v. American Steel Buck Corp., 2 Cir., 1955, 227 F.2d 927; NLRB v. A. Sartorius & Co., 2 Cir., 1944, 140 F.2d ......
  • NLRB v. Bata Shoe Company
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 6, 1967
    ...has held that due process requires a hearing. NLRB v. Sidran, 181 F.2d 671 (5th Cir. 1950). Contra, e.g., Elm City Broadcasting Corp. v. NLRB, 228 F.2d 483 (2d Cir. 1955); NLRB v. Standard Transformer Co., 202 F.2d 846 (6th Cir. 1953). But see NLRB v. Parkhurst Mfg. Co., 317 F.2d 513 (8th C......
  • NLRB v. Parkhurst Manufacturing Company
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 16, 1963
    ...96 L.Ed. 1357; National Labor Relations Board v. Sumner Sand & Gravel Co., 9 Cir., 1961, 293 F.2d 754, 755; Elm City Broadcasting Co. v. N. L. R. B., 2 Cir., 1955, 228 F.2d 483, 485; National Labor Relations Board v. Saxe-Glassman Shoe Corp., 1 Cir., 1953, 201 F.2d 238, 240-241. See Nationa......
  • Carlisle Paper Box Company v. NLRB
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 17, 1968
    ...513, 516, 517 (8th Cir. 1963); N. L. R. B. v. Sumner Sand & Gravel Company, 293 F.2d 754 (9th Cir. 1961); Elm City Broadcasting Corp. v. N. L. R. B., 228 F.2d 483, 485 (2nd Cir. 1955). Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any ......
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