N.L.R.B. v. A.G. Parrott Co.
| Decision Date | 04 August 1980 |
| Docket Number | No. 79-1022,79-1022 |
| Parties | 105 L.R.R.M. (BNA) 2035, 89 Lab.Cas. P 12,176 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A. G. PARROTT COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Barbara A. Atkin, N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Howard E. Perlstein, N. L. R. B., Washington, D. C., on brief), for petitioner.
Carrol Hament, Baltimore, Md. (Earle K. Shawe, Baltimore, Md., Warren M. Davison, Washington, D. C., Patrick M. Pilachowski, Shawe & Rosenthal, Baltimore, Md., on brief), for respondent.
Before PHILLIPS and MURNAGHAN, Circuit Judges, and MacKENZIE, * Chief District Judge.
The National Labor Relations Board has applied for enforcement of its order requiring A. G. Parrott Company to bargain with the Laborers' District Council of Baltimore and Vicinity, Laborers' International Union of North America, AFL-CIO. At a consent election held on August 22, 1977, 32 of approximately 37 eligible employees voted. The tally showed 16 ballots cast for representation by the union and 15 cast against representation, with one ballot declared void. Of the 16 "FOR" ballots, one contained a mark generally in the form of a "C" in the "Yes" box on the ballot in lieu of the customary crossmark.
The ballot declared void was marked with an "X" in the "No" box and when opened was first consigned by the NLRB's agent conducting the election to the pile of "No" ballots. However, he removed the ballot from the pile, explaining to the observers of the employer and the union that the ballot was signed and, consequently, under NLRB rules, void. 1 The employer's observer was able to determine by observation of the not totally opaque ballots from the reverse side that there was indeed a mark in the "No" box and that some writing appeared on the ballot. The company's observer requested an opportunity to see the ballot to satisfy himself that a signature in fact appeared upon it. The NLRB agent refused to honor the request.
The Board agent took the ballot which allegedly had been signed with him and it is now in the possession of the NLRB. It is not in the record of this case because, in connection with the employer's protest of the failure to count the ballot and demand that he be allowed the customary right to inspect the ballot to satisfy himself that it was indeed invalid, the NLRB ruled that protection of the anonymity of the person purporting to cast the ballot was too important an objective to have the employee's identity disclosed. The Board did inspect the ballot in camera and satisfied itself that the ballot was signed.
The employer also complained, albeit unsuccessfully, of the counting of the "Yes" ballot marked with a "C", arguing that use of so unusual a mark could achieve the same revelation by the voter to either the employer or the union that the Board rule invalidating signed ballots was designed to prevent.
The company's refusal to bargain with the union, predicated on its contention that certification was improper since the union had not won the election, led to the filing of unfair labor practice charges. Since a tie vote results in a victory for the employer, 2 the employer's position would be sustained if the court were to decide either that the "signed" ballot should have been counted or that the "C" ballot should have been voided. In the absence of either of those decisions, the company was in default under its responsibility to recognize and to enter into good faith bargaining with the union.
The more readily disposed of issue is that centering on the "Yes" ballot marked with a "C". Answered in a manner favoring the employer's position, it would afford a disposition without necessitating inquiry into the more tangled question of the proper treatment to be accorded the "No" ballot which was purportedly signed. However, the "Yes" ballot manifestly was properly counted in favor of the union. There is nothing in the record to indicate that the "C" in any way operates to reveal the identity of the employee who cast the ballot. No reason for invalidating it, therefore, has been shown. The voting preference is clear. We discern, therefore, no sufficient reason to fault the NLRB for counting the ballot. Cf. N. L. R. B. v. Tobacco Processors, Inc., 456 F.2d 248 (4th Cir. 1972) (per curiam); N. L. R. B. v. Titche-Goettinger Co., 433 F.2d 1045 (5th Cir. 1970).
It, consequently, is necessary for us to direct attention to the matter of the consequences of the treatment given to the "No" ballot which apparently was signed.
The NLRB agent's approach differed from the customary one in such cases. Ordinarily the way in which the employee had voted has been hidden but the writing constituting the signature has been revealed so that each party could satisfy himself that, the ballot was in fact signed. The position of the NLRB has been, in effect, that two facts need to be known before revelation of how an employee has voted can be disclosed, i. e., both (a) his identification and (b) the way in which he had voted. It was customary practice for the NLRB representative to disclose who the voter was but to conceal the manner in which he had voted. Since the fact that his identity was disclosed sufficed to void the ballot whichever way he had voted, the nature of his vote was not of any significance to the parties. 3
Once the NLRB agent introduced the complicating factor of disclosure as to how the "signed" ballot had been voted, he, no doubt inadvertently, created a mistake impossible to correct completely. The first reaction is that the parties, absent the NLRB agent's error, had generally been granted the right to inspect the ballot, and in that connection see the employee's name, rather than having to take the NLRB's word that the ballot had in fact been signed. Why not let the employer and union do what they normally do, since the complicating factor was introduced solely by the NLRB's error and not by either of the parties? If such an approach had been followed, it is very probable that the fact of signature and consequent invalidation of the ballot would have been established, and the question eliminated from the case.
However, such an approach was unacceptable to the NLRB, which reasoned that to do so would allow both the employer and the union, then knowing not only that he had signed, but how he had voted, to pierce the secrecy surrounding the ballot of the employee who purportedly signed. So the NLRB refused the employer's request that it be allowed to do what was customary in the case of signed ballots, i. e., to inspect the ballot, with the signature, and hence the identity of the voter, fully disclosed.
Therefore, the NLRB adopted, for this exceptional case, the solution of denying the employer the right, generally granted, to see the signature, and requiring that he accept the NLRB's conclusory statement that it was in fact an invalidating signature in blind faith, abandoning a protection of inspection otherwise routinely available.
As a general matter it seems that all suspect ballots are customarily available to both the employer and the union so they may each satisfy themselves as to whether invalidating irregularities exist. Even in the case of a signature, everything but the manner of voting itself is shown, and the matter of validity or invalidity is susceptible of resolution without regard to how the employee has voted. 4 In this case, however, the NLRB seeks to enforce an exception not applicable generally, but solely for a specific case, 5 to correct an isolated error of the NLRB agent.
There are several considerations which render that approach questionable. First, why should one of the parties bear the unfavorable consequences when it did not make the mistake? Either the signing employee or the NLRB agent, or both to some degree, were to blame. But neither the union nor the employer was at fault. 6
Second, since the end result of the NLRB's approach for this particular case is to conceal the signer's identity, if such concealment is proper why should not the vote be counted rather than voided? The NLRB's answer is that the possibility of coerced voting is still present whether the employee's name is disclosed or not. That interesting question, centering as it does on the importance of protecting and assuring wherever possible the enfranchisement of the worker/voter, and the possibility that the NLRB's disenfranchisement of the "No" vote here could as well have proceeded from a display of confusion, or misplaced pride, or arrogant independence on the part of the worker, as it did from coercion, need not and should not be answered here, however. 7 If the "No" ballot were counted, the injustice to the union in counting a ballot assertedly signed, without affording it the opportunity otherwise routinely provided to inspect to determine the presence of a normally invalidating signature or other flaw requiring invalidation, would be as great as the injustice to the employer.
Hence we are left with a ballot against which unresolved substantial arguments exist both for counting it and against counting it. Since the ballot, depending on whether it is counted or not, is decisive of the outcome, we are of the persuasion that the election should not be deemed to have been regularly conducted. An essential ballot has been placed in an anomalous position, actually a position in limbo. We, therefore, hold that, certification of the union as the prevailing party in the August 22, 1977, election was error. 8 It follows that the employer had no duty to bargain and that the request for enforcement of the order requiring it to do so should not be granted. However, it appears to us that the circumstances imperatively warrant the holding of...
To continue reading
Request your trial
-
F.W. Woolworth Co. v. N.L.R.B.
...that might subsequently identify the voter. See Sioux Prods., Inc. v. NLRB, 703 F.2d 1010, 1016 (7th Cir.1983); NLRB v. A.G. Parrott Co., 630 F.2d 212, 213 (4th Cir.1980). In the present case, however, the Regional Director's investigation revealed that none of the ballots contained any mar......
-
N.L.R.B. v. Duriron Co., Inc.
...on the contested ballot in this case leads us into a thicket of prior decisions addressing stray or unusual marks, NLRB v. A.G. Parrott Co., 630 F.2d 212 (4th Cir.1980), smiling faces, Sioux Products, Inc. v. NLRB, 703 F.2d 1010 (7th Cir.1983), extraneous words, Mycalex Division of Spauldin......
-
Sioux Products, Inc. v. N.L.R.B.
...Indeed, the Company in the instant case manifested such disapproval. See 703 F.2d at 1015-16 supra; see also NLRB v. A.G. Parrott Co., 630 F.2d 212, 213-15 (4th Cir.1980) (emphasizing need for NLRB to allow employer to inspect outcome determinative ballot).7 The Company requested that the R......