National Labor Rel. Bd. v. National Truck Rental Co.

• Decision Date: 18 October 1956
• Docket Number: No. 13239.,13239.
• Citation: 99 US App. DC 259,239 F.2d 422
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL TRUCK RENTAL COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

99 US App. DC 259, 239 F.2d 422 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATIONAL TRUCK RENTAL COMPANY, Inc., Respondent.

No. 13239.

United States Court of Appeals District of Columbia Circuit.

Argued September 18, 1956.

Decided October 18, 1956.

Petition for Rehearing Denied November 7, 1956.

Writ of Certiorari Denied February 25, 1957.

Miss Fannie M. Boyls, Atty., N. L. R. B., with whom Mr. Marcel Mallet-Prevost, Associate Gen. Counsel, N. L. R. B., was on the brief, for petitioner.

Messrs. Robert F. Skutch, Jr., and Robert L. Weinberg, Baltimore, Md., of the bar of the Court of Appeals of Maryland, pro hac vice, by special leave of Court, with whom Mr. Edward Schoen, Jr., Washington, D. C., was on the brief, for respondent.

Messrs. Benjamin M. Kail and Frank L. Peckham, Washington, D. C., filed a brief on behalf of Jack A. Douglas, and others, as amici curiae, in opposition to the petition for enforcement of the order of the Board.

Before WILBUR K. MILLER, FAHY and BURGER, Circuit Judges.

Writ of Certiorari Denied February 25, 1957. See 77 S.Ct. 561.

BURGER, Circuit Judge.

The National Labor Relations Board has petitioned this court, pursuant to § 10(e) of the Labor Management Relations Act,¹ for enforcement of an order directing respondent to bargain collectively with its employees' bargaining representative.

The facts, chronologically, are as follows. The Machinists Union² made a demand on respondent for recognition as bargaining agent for respondent's employees, then consisting of about 20 to 30 employees. Respondent's Vice President replied that he would have to consult counsel. After a lapse of six days, the union, pursuant to § 9(c) (1), Labor Management Relations Act,³ filed with the National Labor Relations Board a petition for certification of bargaining representative, reciting that a prior demand for recognition had been made on November 3, 1953 and was refused by respondent on the same day. The petition differed from the informal demand in that the petition asked for certification of the Machinists Union and the Teamsters Union⁴ as joint bargaining agent for the employees, whereas the latter union had not previously requested recognition. A working agreement between the two unions for joint action to resolve jurisdictional disputes was then in effect.

The Board, after a hearing, ordered an election and included four working foremen in the "appropriate unit" making them eligible to vote. No objection to their inclusion was made by the unions or respondent. The ballot of only one of the four working foremen was actually counted by the Examiner; the union challenged one foreman and the employer challenged two of the foremen. Excluding the challenged ballots, the election resulted in a vote of 13 for the two unions as joint bargaining agent and 15 against.

Both the unions and respondent filed objections to the election, each alleging improper conduct of the other. The Regional Director, stating that he was bound by the Board's inclusion of the working foremen in the appropriate unit, ruled that the challenged ballots should be opened. He overruled respondent's objections to union conduct but recommended that if the Board's resolution of the challenges did not render the unions' objections moot, the election be set aside because of respondent's Vice President's admitted pre-election statements to two of the working foremen, which constituted unprotected threats of reprisal to eligible employees.⁵

On review the Board concluded that it had erred in declaring the four working foremen eligible to vote, since they had supervisory and other duties rendering them ineligible to be part of the unit. The Board, holding that its own error may have caused "possible confusion," amended the unit designation to exclude working foremen, set aside the election and called for another election.

The second of the two elections resulted in designation of the two unions as joint collective bargaining agent, the vote being 12 to 11 after one "no union vote" was disqualified; the one ballot was voided on the ground that the capital letter "H" placed on the ballot in pencil was an identifying mark which violated the secrecy of the ballot.

Respondent declined to bargain with the unions and on the unions' complaint the Board ordered collective bargaining, but respondent has not complied with that order. The Board now petitions this court to enforce its order. Respondent asserts four reasons as justification for refusing to bargain:

(1) The joint union petition "falsely" alleged that both unions had demanded and been refused bargaining rights, and there was no evidence, claimed to be essential to jurisdiction of the Board, that the Teamsters Union had been designated by a substantial number of employees.

(2) Submission to vote of two unions as a joint bargaining agent for all employees is not permitted under the statute.

(3) The Board erred in setting aside the first election, in which the majority voted "no union."

(4) The Board erred in the second election in disqualifying one "no union" ballot on which the voter placed the letter "H," there being seven employees with first or last names beginning with that letter, and in failing to disqualify a "pro-union" ballot which bore a pencil mark.

It is not essential to the Board's jurisdiction to order an election that statements on the certification petition, relating to prior demands for recognition by both unions, be accurate, or that a formal showing be made that the unions have been designated by a substantial number of employees. Rather than being jurisdictional these requirements are merely steps in the screening process by which the Board determines whether the claims of representation, prima facie, warrant the expense and effort of an election. The Board ruled that the inaccurate statements in the petition did not constitute deliberate falsification and that any defects were cured at the hearing. Therefore, the Board waived the defects in the petition,⁶ and we believe the Board's action was within its powers. As to the showing of substantial employee interest by the petitioning unions prior to the election, there is no reason for permitting litigation of the issue by the parties; the purpose of the requirement is to make Board operations more efficient and compliance with the requirement is a matter solely for administrative determination. Respondent was not prejudiced by the alleged failure to show a substantial interest. National Labor Relations Board v. White Construction & Engineering Co., Inc., 5 Cir., 1953, 204 F.2d 950; National Labor Relations Board v. J. I. Case Co., 9 Cir., 1953, 201 F.2d 597.

While § 9(c) does not specifically authorize two or more unions to file a petition for certification and be voted on as a joint collective bargaining agent, this procedure has been followed for many years by the Board.⁷ Respondent objects that since the section refers to filing of petitions by a labor organization in the singular, Congress intended to exclude joint petitions. However, we agree with the Board that the phrase "labor organization" was used to refer to the entity alone and not to limit the number. It is fair to say that when two unions act as a joint bargaining representative they constitute a "labor...