N.L.R.B. v. Martz Chevrolet, Inc., 74-1023
| Decision Date | 10 September 1974 |
| Docket Number | No. 74-1023,74-1023 |
| Citation | 505 F.2d 968 |
| Parties | 87 L.R.R.M. (BNA) 2957, 75 Lab.Cas. P 10,460 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARTZ CHEVROLET, INC., Respondent. . Heard |
| Court | U.S. Court of Appeals — Seventh Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, Stephen D. Quinn, Atty., National Labor Relations Board, Washington, D.C., for petitioner.
Gary A. Marsack, Milwaukee, Wis., for respondent.
Before FAIRCHILD, PELL and TONE, Circuit Judges.
This case is before the court on an application by the National Labor Relations Board for the enforcement of a cease and desist order issued by the Board against Martz Chevrolet, Inc. The Company has refused to recognize and bargain with the Union, District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, which the Board had certified as the exclusive representative of the Company's service employees. The Board found that the Company's refusal was an unfair labor practice in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. 158, and ordered the Company to bargain with Union.
At issue is the validity of the ballot which proved to be the decisive vote for a consent election conducted on August 15, 1972. Altogether 26 employees voted in the election. Of the undisputed ballots, 11 were cast for the Union, and 11 against. Three ballots were challenged by the Company or the Union. One other ballot, the focus of the present case, had been declared void by the Board agent conducting the election because, in addition to an 'X' marked in the box signifying a 'Yes' vote for the Union, the words 'Do I ever' were scrawled across the bottom of the ballot. After a hearing and the resolution of the challenges and other objections to the election, the tally stood at 12 votes for and 12 against the Union. Thus, decision on the validity of the voided ballot would determine the outcome of the election.
In his report on the investigation of the election, the Regional Director found the Board agent's invalidation to have been erroneous, so he reinstated the ballot. The Board itself concurred in the Director's ruling and certified the election. Upon the Company's refusal to accept this decision, an unfair labor practice proceeding was instituted resulting in the cease and desist order which the Board now seeks to enforce.
The Company contests the validation of the ballot on two grounds. First, it maintains that the Regional Director had no authority to consider the issue of validity because the Union did not object to the agent's action until after the expiration of the 5-day period allowed under NLRB Rule 102.69(a) for filing all objections to the election; and that the Director's investigation and rulings therefore went beyond the scope of the properly raised objections and were unfair to the Company. Second, the Company argues that the Regional Director erred on the merits as well by holding that the questioned ballot was not an invalid 'signal' ballot, which by identifying the voter broke the rule of secrecy.
The Company's defense to the unfair labor charge has been that the certification was improper. In general, the court may only review a certification to determine whether the NLRB abused its discretion. See Macomb Pottery Co. v. N.L.R.B., 376 F.2d 450, 452 (7th Cir. 1967) and the cases cited therein. The court may refuse enforcement of an order finding the employer guilty of unwarranted refusal to bargain if: (1) the aggrieved party was not accorded a fair hearing; or (2) challenges affecting the results were erroneously decided as a matter of law. N.L.R.B. v. Joclin Mfg. Co., 314 F.2d 627, 631-632 (2d Cir. 1963).
Therefore, in charging that the Regional Director abused his discretion by extending the investigation of the election beyond the boundaries authorized by Rule 102.69, the Company must show that this action effectively denied it the fair hearing to which it is entitled. The argument that the Union's failure to object specifically to the voiding of the ballot precluded the Regional Director from any reexamination of the matter is similar to one explicitly rejected by this court in these words:
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...greater emphasis to the voter's choice and thus are not likely to be attempts at identification. See, e. g., NLRB v. Martz Chevrolet, Inc., 505 F.2d 968, 971 (7th Cir. 1974). Where the mismarkings are clearly inappropriate for the section of the ballot on which it appears, such as where the......
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