National Labor Rel. Bd. v. National Plastic Products Co.

• Decision Date: 01 June 1949
• Docket Number: No. 5868.,5868.
• Citation: 175 F.2d 755
• Parties: NATIONAL LABOR RELATIONS BOARD v. NATIONAL PLASTIC PRODUCTS CO.
• Court: U.S. Court of Appeals — Fourth Circuit

175 F.2d 755 (1949)

NATIONAL LABOR RELATIONS BOARD v. NATIONAL PLASTIC PRODUCTS CO.

No. 5868.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1949.

Decided June 1, 1949.

Rehearing Denied July 5, 1949.

COPYRIGHT MATERIAL OMITTED

Frederick U. Reel, Attorney, National Labor Relations Board, Washington, D. C. (David P. Finding, Associate General Counsel, A. Norman Somers, Assistant General Counsel, and Thomas F. Maher, Attorney, National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Jacob Blum, Baltimore, Md. (Jacob S. New and Sidney Blum, Baltimore, Md., on the brief), for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board which directed the National Plastic Products Company to bargain with the International Chemical Workers Union and to cease and desist from interfering with its employees in their efforts at self organization. The company admits the refusal to bargain but contends that the union was not properly certified as a bargaining representative and has now lost majority status. It denies that it has been guilty of the interference found by the Board.

There is no question but that the union was certified by the Board as the bargaining agent of the company's employees on July 26, 1946, on a petition filed on March 29, 1946 and after an election had been held on April 18, 1946, at which a majority of the votes cast were admittedly in favor of the union. The company contends, however, that the certification was invalid (1) because the election was held in advance of a hearing on the petition, (2) because eligibility to vote was based upon the payroll of April 2, after the Board had been notified that some of the employees were to be discharged, and (3) because the Board officials who conducted the election rode out to the company's plant in an automobile with the union representative.

The facts with respect to these contentions are that after the petition for certification was filed with the Board, the Regional Director ordered an election in advance of the hearing, but only after he had determined that there were no issues under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. requiring determination. The company's representative attempted to delay the election until after the hearing by suggesting that the C. I. O. desired to be on the ballot; but the Regional Director called the C. I. O. representative over the telephone and ascertained that the C. I. O. had no such desire.

The company's representative objected to the April 2 payroll as the basis of voting but refused to name the payroll of any other date as satisfactory, and the Board selected that in accordance with its custom to use the payroll immediately preceding the direction of the election. There were 227 employees eligible to vote in the election and 206 votes were cast, of which 17 were challenged on the ground that they were cast by employees whom the company had already determined to discharge because of the completion of the project in which they were engaged. The Board sustained the right of these 17 employees to vote, however, and, when their ballots were counted, 108 votes had been cast for and 98 against the union. With their ballots excluded 95 votes had been cast for and 94 against the union, which had thus received a majority of the votes cast in any event.

When the officials of the Board who conducted the election went to the company's plant fifteen miles from Baltimore, they traveled to Odenton railway station on the train and rode from the station to the plant in an automobile with the union's representative; but there was no evidence that any employee saw or was in any way influenced by this occurrence, and the Board, while expressing its disapproval, did not think the matter of sufficient importance to justify a denial of certification.

On these facts, it seems perfectly clear that we would not be justified in setting aside the Board's certification. The determination of bargaining representatives under the act is a matter that Congress has entrusted to the Board, not to the courts;¹ and when, as here, a certification is called in question in connection with a petition to enforce or review an order of the Board under section 10, 29 U.S.C.A. § 160, the certification must be sustained in so far as fact questions are concerned, if the fact findings of the Board made in connection therewith are based upon substantial evidence. In so far as the certification involves the exercise of discretion, that is a matter with which we are powerless to interfere so long as the Board acts within the limits of the law. The rule applicable was tersely and correctly stated by Judge Sibley, speaking for the Court of Appeals of the Fifth Circuit in N.L.R.B. v. Whittier Mills Co., 5 Cir., 111 F.2d 474, 477, as follows: "The decisions in American Federation of Labor v. National Labor Board, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347, and National Labor Relations Board v. International Brotherhood of Electrical Workers, 308 U.S. 413, 60 S. Ct. 306, 84 L.Ed. 354, denied jurisdiction in the Circuit Courts of Appeal to review such certificates before an order under Section 10, 29 U.S.C.A. § 160, is made against an employer. But Section 9(d) requires that the record touching the certification shall be sent to the court when enforcement or review is sought of an order under Sections 8 and 10 which is based in whole or in part upon the facts certified. This provision, though indicating the certificate is not to be reviewed before an order under Sections 8 and 10 is presented for enforcement or review, clearly means that when an order is presented the record on which the certificate was based may be looked into to determine the lawfulness of the certificate. There can be no other reason for sending up such a record. On reviewing it, we should regard the Board's determination of facts as final, as in reviewing the order based on Sections 8 and 10; and of course in matters which are discretionary, the Board's acts within the limits of law are final. Only where the law has been ignored or violated would the court nullify the certificate of a bargaining representative."

There is certainly no basis for overturning the finding of the Board that the union represented a majority of the company's employees. Even if those who were marked for discharge were eliminated, a majority of those participating in the election had voted in favor of the union. The Board was clearly acting within its discretion, under the statute as it stood at that time, in holding the election in advance of the hearing. Art. III, sec. 3, of its regulations so provided; and the decision of the Supreme Court in Inland Empire District Council v. Millis, 325 U.S. 697, 707, 65 S.Ct. 1316, 89 L.Ed. 1877, leaves no doubt as to the propriety of the Board's procedure. As to the other matters complained of, it certainly was for the Board and not the courts to exercise the discretion as to when the election should be held, upon what payroll eligibility to vote should be determined and whether or not the election should be set aside for irregularities in procedure. For the courts to substitute their judgment for that of the Board in such matters would be for them to undertake an impossible task and entirely to misconceive their function under the statute.

The company next contends that it is justified in refusing to bargain with the union because of the lapse of time since the election, the turnover in personnel that has occurred and the lack of any evidence showing that the majority status of the union has been preserved. In this connection, the company contends that the number of its employees has increased from 227 to 305 and that of these only 103 were eligible to vote at the time of the election. There is nothing, however, to show that the union does not still have a majority; and it appears that the company has never bargained with it but expressly refused to do so on September 13, 1946, shortly after the certification, and that from that time forward has...