Marlin-Rockwell Corp. v. National Labor R. Board
| Decision Date | 06 January 1941 |
| Docket Number | No. 9.,9. |
| Citation | 116 F.2d 586 |
| Parties | MARLIN-ROCKWELL CORPORATION v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Second Circuit |
Slee, O'Brian, Hellings & Ulsh, of Buffalo, N. Y., for petitioner.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Lester M. Levin, Bertram Edises, Samuel Edes, and Robert Kramer, all of Washington, D. C., for respondent.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This case is before us on the petition of Marlin-Rockwell Corporation to vacate an order of the Board issued January 19, 1940. The Board's answer asks enforcement of the order. The principal issues relate to the validity of an election at which International Union, United Automobile Workers of America, Local No. 338 was chosen as the collective bargaining agent of the employees of the petitioner's factory at Jamestown, New York.
The election was held on February 24, 1938, pursuant to a prior order of the Board. By a close vote, 175 to 155, the Union was elected, and the Board thereafter certified it as the exclusive representative of the employees for purposes of collective bargaining. The company refused to recognize the Union as collective bargaining agent because it had not been elected by a majority of the employees entitled to vote but only by a majority of those who voted. Apparently a refusal to bargain with the certified representative followed by a complaint based thereon and an order of the Board directing the employer to cease from such refusal, is the only way in which certification of a collective bargaining representative can be reviewed. A. F. of L. v. Labor Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347. Upon charges by the Union of unfair labor practices by the company, the Board filed its complaint against the company in August 1938. This resulted, after hearings, in the order of January 19, 1940, which is now before us. This contains the usual cease and desist provisions, and affirmatively orders the company to bargain with the Union upon request; it also directs the reinstatement, with back pay, of two discharged employees, and the posting of notices of compliance with the order.
The petitioner's complaints concerning the election will be considered in the order in which they have been presented in its brief. Section 9(b) of the Act, 29 U.S.C.A. § 159(b), gives the Board power to determine "the unit appropriate for the purposes of collective bargaining." The Board excluded apprentices from the 1938 election, although in a consent election held in 1937 they had been included. The apprentices are minors employed under contracts which require the consent of their guardians; the contracts are drafted and performed in co-operation with the State Department of Education and the Jamestown Board of Education. The special character of their employment relationship gives some basis for differentiating between apprentices and other employees. We cannot say that the decision to exclude them from the bargaining unit was so unreasonable or capricious as to pass the bounds of permissible discretion. Only if the Board has acted arbitrarily, may its discretion in determining the appropriate unit be overridden by the courts. International Ass'n etc. v. National Labor Relations Board, 71 App.D.C. 175, 110 F.2d 29, 46; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138, 143, certiorari denied 304 U.S. 575, 58 S.Ct. 1045, 82 L.Ed. 1539. Moreover, the issue is academic; the whole number of apprentices was only five or six, and the result of the election could not have been affected had they been included in the unit.
The next contention is that the Board abused its discretion in refusing to allow the company to have a representative present at the election for the purpose of checking the identity and eligibility of the persons who presented themselves to cast ballots. Refusal was put upon the ground that the Union refused to consent, and that the Board had consistently declined to permit a representative of the employer to be present at elections ordered by the Board in the absence of consent by the union involved. Section 9 (c) of the Act, 29 U.S.C.A. § 159(c), provides that the Board may take a secret ballot of employees or utilize any other suitable method of ascertaining their representatives; it is silent as to election procedure. Hence the manner in which an election shall be conducted lies in the Board's discretion. If the Board desires the assistance of a representative of the employer to identify the employees who appear to vote, it may have it. But such assistance is not essential to a fair election; identification of the voters may be obtained by other means. Apparently the Board believes that considerations in favor of the presence of an employer representative are outweighed by the possibility that his presence may act as an inhibiting influence upon the employees' freedom of choice; hence the Board's general policy of denying permission unless the labor organization involved consents. There is no showing that the procedure adopted prevented a fair election. W...
To continue reading
Request your trial
-
Air Transp. Ass'n Of America Inc. v. Nat'l Mediation Bd., Civil Action No. 10-0804(PLF).
...40, 300 U.S. at 559, 57 S.Ct. 592. 5In interpreting the National Labor Relations Act, the Second Circuit noted in Marlin-Rockwell Corp. v. NLRB, 116 F.2d 586, 588 (2d Cir.1941), that “[u]nder the Railway Labor Act it has been authoritatively held that the vote of a majority of the participa......
-
WILSON EMPLOYEES'REPRESENTATION PLAN v. Wilson & Co.
...action before us. Hence, we see no occasion for further comment thereon. Another group of cases, including Marlin-Rockwell Corp. v. National Labor R. Board, 2 Cir., 116 F.2d 586, New York Handkerchief Mfg. Co. v. National Labor R. Bd., 7 Cir., 114 F.2d 144, A. F. of L. v. National Labor R. ......
-
NLRB v. Deutsch Company
...Board." Here there is cited the Handkerchief case, supra (7 Cir.), the National Mineral case, supra (7 Cir.), Marlin-Rockwell Corp. v. N. L. R. B., 2 Cir., 1941, 116 F.2d 586; N. L. R. B. v. Whittier Mills, 5 Cir., 1940, 111 F.2d 474, 477; Matter of Western Foundry Co., 42 N. L. R. B. 302; ......
-
National Labor Rel. Bd. v. National Broadcasting Co.
...Labor Relations Board v. Hearst Publications, 322 U.S. 111, 134, 64 S. Ct. 851, 88 L.Ed. 1170; Marlin-Rockwell Corporation v. National Labor Relations Board, 2 Cir., 116 F.2d 586, 587, certiorari denied 313 U.S. 594, 61 S.Ct. 1116, 85 L. Ed. 1548. The Board found that neither musical nor te......