N.L.R.B. v. Connecticut Foundry Co.

• Decision Date: 14 July 1982
• Docket Number: D,AFL-CI,No. 1005,I,1005
• Parties: 110 L.R.R.M. (BNA) 3307, 94 Lab.Cas. P 13,680 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONNECTICUT FOUNDRY COMPANY, Respondent, International Ladies' Garment Workers Union,ntervenor. ocket 81-4224.
• Court: U.S. Court of Appeals — Second Circuit

Page 871

688 F.2d 871

110 L.R.R.M. (BNA) 3307, 94 Lab.Cas. P 13,680

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONNECTICUT FOUNDRY COMPANY, Respondent, International Ladies' Garment Workers Union, AFL-CIO, Intervenor.

No. 1005, Docket 81-4224.

United States Court of Appeals, Second Circuit.

Argued May 17, 1982.

Decided July 14, 1982.

Thomas M. Cloherty, Hartford, Conn. (Leslie A. Margolin, Murtha, Cullina, Richter & Pinney, Hartford, Conn., of counsel), for respondent.

William M. Bernstein, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John G. Elligers, N. L. R. B., Washington, D. C., of counsel), for petitioner.

Albert L. Goldman, Boston, Mass. (Angoff, Goldman, Manning, Pyle & Wanger, Boston, Mass., Max Zimny, Gen. Counsel, I.L.G.W.U., New York City, of counsel), for intervenor.

Before MANSFIELD and MESKILL, Circuit Judges, and PRATT, Circuit Judge. ^*

MESKILL, Circuit Judge:

The National Labor Relations Board petitions for enforcement of an order issued on January 20, 1981 directing Connecticut Foundry Company (Company) to bargain with the International Ladies' Garment Workers Union, AFL-CIO (Union) as the certified bargaining representative of production and maintenance workers at the Company's Rocky Hill plant. The Company has responded with a plethora of objections involving the conduct of the certification election and challenges to the eligibility of many voters. We deny enforcement of the NLRB's order.

BACKGROUND

The Connecticut Foundry Company, which is wholly owned by two brothers, Arthur and Franklin Enquist, has operated its plant in Rocky Hill since 1919. The Company employs mostly unskilled or semiskilled workers at the plant, where it manufactures The genesis of this dispute lies in late 1977 when the Union conducted an organizing campaign at the plant. The Union called a recognitional strike on November 11 and filed a certification petition with the Regional Director four days later. The picketing, which spanned half a year, was highlighted by violence and threats which received widespread publicity in Connecticut, J.App. at 752-70. ² Although the Company obtained injunctive relief from the Connecticut Superior Court regulating the number, location and activity of the pickets, unruly incidents continued. The Company also filed unfair labor practice charges against the Union, ³ which led to the issuance of a complaint by the Regional Director, J.App. at 771-76, 779-80, and a formal settlement on April 11, 1978, J.App. at 733-37. ⁴ Hampered by the strike, the Company elected to close the plant from November 20, 1977 until January 20, 1978, maintaining only a skeleton crew of maintenance employees. When the plant reopened, the Company recalled most of the laid-off employees, excluding a few who it felt were responsible for picket line violence. ⁵ The response to the recall was apparently adequate to allow the plant to resume operations at least on a modified basis.

                grey iron castings.  1 Almost one-third of the production and maintenance workers who comprised the bargaining unit could not read English, and many more possessed low reading levels.  J.App. at 531
                

On May 19, 1978, the Regional Director issued a decision directing that an election be held, J. App. at 440. The election, which was scheduled on an expedited basis at the Company's request, ⁶ was held on June 16.

                The number of voters who appeared at the three sessions that day was far in excess of the Company's normal work force.  7 As a result, the preliminary election result was as follows
                

J. App. at 454. In addition to the disputed eligibility of a large number of voters, several incidents cast a shadow on the propriety of the election. One involved three brief instances during which the Union allegedly violated an agreement that neither its nor the Company's representatives would enter within 150 feet of the polling area. A second incident involved a Union observer who displayed a drawing depicting a "skull and crossbones" to several persons waiting in line to vote. The Company also questioned the effect on the election of certain cash payments by the Union to strikers. ⁸

Following an investigation but without a hearing, the Regional Director declared four of the ninety-four challenged ballots void, sustained six challenges, concluded that seventy-eight should be opened and counted, and ordered that a hearing be held on the six remaining ballots if no majority were otherwise achieved at that point. In addition, the Director dismissed all but two of the Company's and one of the Union's objections without a hearing. J. App. at 461-90. The NLRB sustained the Regional Director's disposition in large part, although it ordered a hearing on two additional challenges and one objection. The ballots ordered opened by the Director were insufficient to establish a winner, and accordingly, the case proceeded before an Administrative Law Judge (ALJ) for resolution of the eight challenges and four objections.

The ALJ issued his decision on October 19, 1979, dismissing the Company's remaining objections and sustaining challenges to six ballots. ⁹ J. App. at 626-48. On February 29, 1980, the NLRB issued its decision affirming the ALJ's determination on all but two ballots, which it chose not to resolve. The final tally was as follows: ¹⁰

Accordingly, the NLRB certified the Union pursuant to section 9(a) of the Act. Connecticut Foundry Co., 247 N.L.R.B. 1514 (1980).

Believing that its objections and challenges were justified, the Company chose not to honor the certification. On March 21, 1980, the Union filed a complaint alleging that the Company was in violation of sections 8(a)(5) and (1) of the Act for refusing to bargain. The NLRB found that the Company's arguments had all been resolved during the certification proceeding and therefore granted summary judgment in favor of the Union and issued a bargaining order on January 26, 1981. 254 N.L.R.B. No. 89 (Jan. 26, 1981), J. App. at 718-32. This case involves the NLRB's petition for enforcement of that order.

DISCUSSION

The Company raises three categories of challenges to the certification election. The first involves four irregular ballots declared void by the NLRB. The second consists of challenges to the eligibility of roughly one-fourth of the voters. The third concerns Union conduct which allegedly impinged upon the voters' freedom of choice.

I. Irregular Ballots

The Company asserts that the NLRB patently ignored settled law in declaring four irregular ballots void. One of the ballots was left blank on its face, but had "no" written twice on the reverse side, J. App. at 712-13. A second voter had also left the face of his ballot blank, but wrote "non" on the reverse side, J. App. at 714-15. A third ballot had "no" written in both the "yes" and "no" boxes, J. App. at 717. The fourth ballot, which we attach as an appendix, had apparently been held upside down by the voter; the ballot had been marked in the "yes" box and had the word "no" written upside down above the box. The NLRB held that each of these ballots failed to indicate the voter's intent. ¹¹

In light of the NLRB's recent decision in Hydro Conduit Corp., 260 N.L.R.B. No. 168 (Mar. 31, 1982), as well as the abundant and uniform case law on irregular ballots, see, e.g., NLRB v. Wrape Forest Industries, Inc., 596 F.2d 817 (8th Cir. 1979) (en banc ); Mycalex Division of Spaulding Fibre Co. v. NLRB, 481 F.2d 1044 (2d Cir. 1973) (per curiam); NLRB v. Tobacco Processors, Inc., 456 F.2d 248 (4th Cir. 1972); NLRB v. Titche-Goettinger Co., 433 F.2d 1045 (5th Cir. 1970), we see no reason to discuss this matter in great detail. The general rule is that a ballot should be counted "if there is a clear expression of preference, regardless of the irregularity of the mark on the ballot." NLRB v. Wrape Forest, 596 F.2d at 819. We hold that the two ballots left blank on their faces but marked on the reverse sides unequivocally indicated the voters' intent to vote against the Union. In addition, our own decision in Mycalex is sufficient to dispose of the third ballot, on which the voter wrote "no" in both the "yes" and "no" boxes. In that case, we held that a ballot containing the word "no" written in the "yes" box was sufficient to indicate the voter's intent to vote against the union. 481 F.2d at 1045. We believe it a fortiori that a ballot marked "no" in both boxes indicates intent to vote against the union.

Our conclusion concerning the intent of these voters is buttressed by considering the context of the election. As we stated in Mycalex,

Only one question was presented on the ballot-whether the voter wished to be represented by the union. In such a situation, the word "No" whether in the "Yes" column or on the reverse side of the ballot expresses a clear preference on the part of the voter.

481 F.2d at 1045. Similarly, the sole question presented to voters in this certification election was whether they wished to be represented by the Union. Viewed in this light, the intent manifested in each of these three ballots is beyond cavil, and the NLRB therefore abused its discretion in failing to count these ballots. We also observe that the need for sensitivity to irregularities in voting is particularly acute in cases such as this involving many workers who possess low reading abilities. See Crucible Steel Co., 117 N.L.R.B. 1616, 1618 (1957).

We are unable to conclude with the same degree of certainty, however, that the fourth ballot indicates the voter's negative preference. While the Company argues that the voter merely held his ballot upside down, we cannot find that the NLRB Counting three of the four ballots as "no" votes would alone mandate a remand to allow the NLRB to address the two challenges it left unresolved. Nevertheless, we believe that the Board committed...