National Labor Relations Bd. v. Carlton Wood Prod. Co.

• Decision Date: 30 January 1953
• Docket Number: No. 13307.,13307.
• Citation: 201 F.2d 863,36 ALR 2d 1170
• Parties: NATIONAL LABOR RELATIONS BOARD v. CARLTON WOOD PRODUCTS CO.
• Court: U.S. Court of Appeals — Ninth Circuit

36 ALR 2d 1170, 201 F.2d 863 (1953)

NATIONAL LABOR RELATIONS BOARD v. CARLTON WOOD PRODUCTS CO.

No. 13307.

United States Court of Appeals Ninth Circuit.

January 30, 1953.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Dominick L. Manoli and William J. Avrutis, Attys., N.L.R.B., Washington, D. C., for petitioner.

E. A. Weston, Boise, Idaho, for respondent.

Before MATHEWS, STEPHENS and ORR, Circuit Judges.

ORR, Circuit Judge.

The National Labor Relations Board petitions for enforcement of an order issued against respondent, the operator of a wood box and lumber manufacturing plant at Payette, Idaho. Respondent purchases materials and sells its products across state lines, and is admittedly engaged in commerce within the meaning of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., as amended by the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. No jurisdictional question is raised.

The Board found that respondent had refused to bargain collectively with the Blue Mountain District Council of Lumber and Sawmill Workers, the union which had been certified as bargaining representative for respondent's employees, thereby violating § 8(a) (5) and (1) of the Act. 29 U.S.C.A. § 158(a)(5) and (1). The proposed order requires respondent to cease and desist from refusing to bargain collectively with the certified union, from interfering with the union's efforts to bargain and, in addition, to take certain affirmative action which the Board found would effectuate the policies of the Act.

Respondent concedes that it refused to bargain. Its contention is that certification of the union was invalid because the Regional Director, who supervised the election and issued the certification under the terms of a consent election agreement, refused respondent's request for a formal hearing on the validity of a challenged and decisive ballot cast at the time of the representation election.

On April 7, 1950 respondent and the union entered into an agreement for a consent election which provided that the Regional Director for the 19th Region would supervise an election among respondent's employees in an appropriate unit to determine whether they wished the union to be their collective bargaining representative. This agreement provided that the election should be conducted "in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election." The agreement further provided for the filing of objections to the conduct of the election and stated that "if the challenges are determinative of the results of the election, the Regional Director shall investigate the challenges and issue a report thereon."

In February 1950 respondent had laid off a number of employees because the operation of a certain department was no longer necessary during the company's slack season. On March 11, 1950 respondent's attorney wrote on its behalf to the Regional Director that the lay off was "temporary;" that the company might have to lay off some more employees "during this slack season," that the company had "notified each employee that he would be reemployed as soon as new employees were necessary," and that "at this time I see no reason why all of the employees who were on the payroll at the time the union asked for bargaining rights February 20, 1950 should not vote." The consent election agreement therefore provided that "the eligible voters shall be those employes * * * who appear on the employer's payroll for the period indicated below, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding any employees who have since quit * * *" The payroll period was specified to be that "immediately preceding election, plus employees temporarily laid off since February 1, 1950."

On April 12, 1950, 22 votes were cast at the representation election; ten votes were cast in favor of the union, ten votes against it, and two ballots were challenged by respondent. The Regional Director caused an investigation to be made of these challenges and, on April 17, 1950, issued his report sustaining the challenge to one ballot and rejecting the challenge to the ballot of voter Oren Wren. Wren's ballot was thereupon opened and found to be in favor of the union, which thus received a majority of one vote.

The facts relating to Oren Wren's employment, as found by the Regional Director, are not in dispute, although respondent disagrees with the Director's conclusion that Wren was eligible to vote. Wren was one of the group of employees temporarily laid off during February 1950, and was called back to work by respondent during the latter part of March 1950. During the period of the layoff, however, Wren had lost a finger in an accident, and his doctor had not yet released him for employment. Wren traveled to respondent's plant and told the company that his injury prevented him from reporting for duty. He has stated to the Regional Director his intention to report for work as soon as he is able to do so. Respondent's manager admits that the offer of reinstatement has not be withdrawn. On the basis of these facts the Regional Director determined that under the provision of the consent election agreement that employees "ill or on vacation or temporarily laid off" were eligible to vote, Oren Wren's ballot should be counted.

On the same date that the Regional Director's report issued, respondent wrote to the Director stating its position that Wren's inability to report for work had resulted in his loss of status as an employee. Respondent again explained its views in letters written to the Director on April 27 and May 10, 1950. In this latter communication, respondent for the first time asked for a "hearing" on its challenges. This request was made three weeks after the Director's report issued. No action was taken on the request. The Director certified the union as the employees' duly elected bargaining representative and later wrote to respondent that there was no basis for revoking the certification.

It is not entirely clear whether respondent objects solely to the refusal of the Regional Director to grant a hearing, or also contends that the Director's determination on the merits that Wren's ballot should be counted was improper. Determinations by a Regional Director acting pursuant to a consent election agreement which specifies that such determinations will be final and binding can be set aside only where they are arbitrary or capricious, or not in conformity with the policies of the Board and the requirements of the Act. N.L.R.B. v. General Armature & Mfg. Co., 3 Cir., 1951, 192 F.2d 316, certiorari denied 343 U.S. 957, 72 S.Ct. 1052; Semi-Steel Casting Co. of St. Louis v. N. L.R.B., 8 Cir., 1947, 160 F.2d 388, certiorari denied 332 U.S. 758, 68 S.Ct. 57, 92 L.Ed. 344; N.L.R.B. v. Capitol Greyhound Lines, 6 Cir., 1944, 140 F.2d 754, certiorari denied 332 U.S. 763, 64 S.Ct. 1285, 88 L. Ed. 1590. Respondent did not contend during the unfair labor practice proceedings before the Board, resulting from its refusal to bargain collectively with the certified union, that the determination on the merits by the Regional Director that Oren Wren was an employee eligible to vote in the election was arbitrary or capricious. The question is, therefore, not before this court. Section 10(e), National Labor Management Relations Act, 29 U.S.C.A. § 160(e).

We find it unnecessary to consider whether in the absence of the consent election agreement respondent would have been entitled to a formal hearing on its challenge to the eligibility of the person casting the determinative ballot, because we find that by the terms of the agreement respondent waived any...