National Labor Rel. Bd. v. Whitinsville Spinning Ring Co., 4665.

• Decision Date: 07 November 1952
• Docket Number: No. 4665.,4665.
• Citation: 199 F.2d 585
• Court: U.S. Court of Appeals — First Circuit
• Parties: NATIONAL LABOR RELATIONS BOARD v. WHITINSVILLE SPINNING RING CO.

199 F.2d 585 (1952)

NATIONAL LABOR RELATIONS BOARD v. WHITINSVILLE SPINNING RING CO.

No. 4665.

United States Court of Appeals First Circuit.

November 7, 1952.

Dominick L. Manoli, Washington, D. C. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, and Alice T. Andrews, Washington D. C., on the brief), for petitioner.

Charles C. Cabot, Boston, Mass. (Warren D. Oliver, Henry V. Atherton, and Herrick, Smith, Donald, Farley & Ketchum, all of Boston, Mass., on the brief), for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

The National Labor Relations Board by stipulation with the Respondent conducted an election by secret ballot to determine whether a majority of the Respondent's production, maintenance and shipping room employees wished to have United Steelworkers Union, CIO, certified by the Board as their representative for purposes of collective bargaining. At that election 82 employees were eligible to vote, 78 employees voted, 77 ballots were counted, and of these 39 were clearly for the Union and 38 were clearly against it. The sole question presented by this petition for enforcement is the validity of the one uncounted ballot which the respondent contends should be counted against the Union with the result of a tie vote and defeat for the Union.

The ballots used in the election were furnished by the Board, and were the standard printed type customarily employed in elections involving only one labor organization. On the top half of the ballot, following the full designation of the Board, appear the words "Official Secret Ballot for Employees of Whitinsville Spinning Ring Company, Whitinsville, Massachusetts." Next the purpose of the election is stated as being "to determine the collective bargaining representative, if any, for the unit in which you are employed," and immediately following this the voter is warned: "If you spoil this ballot return it to the Board Agent for a new one." The voter is then instructed in large print to "Mark an `X' in the square of your choice" and then the question to be decided is stated as: "Do you wish to be represented for purposes of collective bargaining by — United Steelworkers of America, CIO?" At the bottom of the ballot side by side and spaced well apart are two blank squares over one of which is printed the word "Yes," and over the other of which is printed the word "No."

On the disputed ballot a diagonal pencil line showing signs of partial erasure appears in the square under the word "Yes," and a clear penciled "X" appears in the square under the word "No."

The Respondent maintained at the time the ballots were counted, and has consistently maintained ever since, that the voter's intention to vote against representation by the Union is clearly apparent from the above marking, and that the ballot should be tallied accordingly. Its contention, however, has not received acceptance at any stage of the administrative proceedings. The Board Agent who conducted the election treated the ballot when he came upon it during the counting of ballots as a "challenged" one for the reason, he said, that he was unable to decide whether it should be counted for or against the Union. When in due course the ballot came to the attention of the Regional Director, he concluded, quite correctly we think, that strictly speaking the ballot was not properly classifiable as "challenged," but he recommended to the Board that it be treated as "void," because of the erasure upon it, and he issued a revised tally of ballots so classifying it.

The Respondent filed exceptions with the Board to the Regional Director's report, but the Board on the authority of Palmetto Cotton Mills, Inc., 63 N.L.R.B. 421 (1945), sustained the recommendation of the Regional Director, stating in its decision: "As there is an erasure in a material part of the disputed ballot, we find the ballot to be mutilated and therefore void." In consequence it certified the Union as the bargaining representative of the Respondent's employees in the bargaining unit involved. The Union thereupon requested a meeting with the Respondent for the purpose of negotiating a collective bargaining agreement covering the employees in the unit, but the Respondent, consistent with its position, refused the Union's request, informing the Union in writing that it considered the Union's certification erroneous and therefore refused to recognize it until its right to represent the employees in the unit had been determined by the courts. The Union thereupon instituted proceedings under § 10, National Labor Relations Act, 29 U.S.C.A. § 160, which in due course resulted in the order couched in the usual remedial terms directing the Respondent to bargain collectively with the Union. This is the order which the Board asks us to enforce in the instant proceeding.

In the representation proceeding, as already appears, the Board rested its conclusion that the ballot in question was mutilated and therefore void on the authority of its earlier decision in Palmetto Cotton Mills, Inc., supra. And in its decision in the present proceeding the Board said that it could "perceive no reason for holding differently at this time," and accordingly concluded that "because of the erasure in the `Yes' square, the ballot was clearly spoiled and mutilated." On the basis of this conclusion the Board said that it found no necessity for determining whether the ballot did or did not reveal the intent of the voter, and then it proceeded to the conclusion that the Union had at all material times been the exclusive representative of the employees in the bargaining unit involved so that as a result the Respondent's admitted refusal to bargain with the Union constituted a violation of §§ 8(a)(5) and 8(a)(1) of the Act, 29 U.S. C.A. § 158(a)(1, 5). Furthermore, the Board also found that the Respondent had violated the same provisions of the Act by unilaterally granting a wage increase and other benefits to its employees.

The only purpose of any election, be it a political election or one conducted by the Board to determine a bargaining representative, is to discover the intent of the qualified electors to the end that effect may be given to the will of the majority. Hence, the fundamental question in counting any...