National Labor Relations Board v. Wilkening Mfg. Co., 11023.
| Decision Date | 15 September 1953 |
| Docket Number | No. 11023.,11023. |
| Parties | NATIONAL LABOR RELATIONS BOARD v. WILKENING MFG. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Samuel M. Singer, Washington, D. C. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, Milton Eisenberg, Washington, D. C., on the brief), for petitioner.
Joseph Brandschain, Philadelphia, Pa. (Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., Nathan Silberstein, Robert E. Wachs, Harvey S. Kronfeld, Philadelphia, Pa., on the brief), for respondent.
Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.
The National Labor Relations Board in its decision of September 23, 1952 found respondent guilty of an unfair labor practice in refusing to bargain with the union which had been declared by the Board to be the representative of the employees. The Board seeks enforcement of its order.
The dispute dates back to the election, held April 27, 1951, for the determination of a collective bargaining representative for the unit concerned. The vote as finally certified was 26 to 24 in favor of the union. Within four days thereafter the company filed objections to the conduct of the election. These involved the votes of three employees, Eleanor Lyons, Marion Humphreys and Janet Elder.
Miss Lyons had been told by both the union and the employer that she was ineligible to vote because she was discontinuing her employment at the close of business on the day of the election. Five minutes prior to the opening of the polls the Board agent in charge of the election ruled she had the right to vote. The polls were open only half an hour, from 4:00 P.M. to 4:30 P.M. Miss Lyons and her supervisor worked in a building separate from the main office and from the cafeteria where the voting took place. The Board accepted the employer's offer of proof that "* * * it had not been possible to contact her Miss Lyons' supervisor in order to pass the word to her * * *" before the polls closed, but because of the employer's earlier action (in conjunction with the union) respecting Miss Lyons it held that "* * * the Employer is manifestly in no position to assert Lyons' failure to vote as a ground for setting aside the election." This conclusion, plus the Board's designation of the employer's objection to Miss Lyons' failure to vote as a "post-election challenge", is the basis of the decision that there was no merit in the objection.
Marion Humphreys was respondent's telephone operator and worked at the switchboard in its main office. She was so engaged during the election until relieved by Miss Elder. The offer of proof regarding her actions was that when relieved, about 4:25 P.M., she proceeded immediately to the voting location, not more than 150 feet away. She thought she arrived prior to 4:30 but was told by the Board's agent in charge of the election that the polling place had closed.
The third employee with whose vote we are concerned is Janet Elder. Her name was not on the list of eligible voters. She had originally been grouped with Miss Lyons and for the same reason considered not entitled to cast a ballot. She was therefore challenged at the polls by the employer's representative under his general instructions to protest the ballot of any employee not on the agreed list. She, like Miss Lyons, was also ruled eligible by the Board's agent and did vote. Her vote was impounded by the agent because of the objection made to it. On May 1, 1951 the employer formally withdrew its objection to Miss Elder's voting.
Following the employer's prompt protest of the declared result of the election, the Regional Director conducted an investigation. He found no substance in the objections. He urged that they be overruled and the union certified. He stated that since, in the light of his other findings, the Elder ballot could not affect the election he made no recommendation regarding it. The employer filed exceptions and on July 11, 1951 the Board issued a Supplemental Decision (amended July 20, 1951) holding that the Elder vote could affect the election and directing that it be counted. The Regional Director's report of August 6, 1951 stated that the ballot had been lost or destroyed and recommended that the Board proceed to the other exceptions. On September 6, 1951 the Board overruled the objections as to the votes of Miss Lyons and Mrs. Humphreys and, finding that the union had secured a majority of the valid votes cast, certified it as the bargaining agent. On September 12, 1951 and again on October 8, 1951 the union asked the employer for a bargaining conference. Those requests were refused because the validity of the election had been questioned and because the employer knew that a decertification petition was about to be filed by its employees. That petition was filed on September 21, 1951. It requested that a new election be ordered. Another petition seeking a new election was filed December 3, 1951. Those petitions seem to have been treated as one and were denied by the Regional Director on December 10, 1951 on the ground that they had not been timely filed. An appeal to the Board urging that 80% of the employees desired decertification was dismissed as untimely on March 31, 1952. The Regional Director refused to take any action on a third petition filed April 4, 1952. His reason, according to his letter of August 25, 1952 was that the complaint in the present proceeding was pending at the time. The Board affirmed that ruling November 8, 1952.
Respondent, meanwhile, had filed a "Petition for Reconsideration", dated September 14, 1951, with the Board. In this instrument the Board was requested to grant a formal hearing on respondent's objections. This request was denied by the Board. Under Section 102.61(b) of the National Labor Relations Board Rules and Regulations, Series 6 (effective March 1, 1951), controlling here, "If it appears to the Board that such exception raises substantial and material factual issues the Board may direct the Regional Director or other agents of the Board to issue and cause to be served upon the parties, a notice of hearing on said exceptions before a hearing officer." By the same section if it appears to the Board that the exceptions "* * * do not raise substantial and material issues with respect to the conduct or results of the election the Board may decide the matter forthwith upon the record or may make other disposition of the case."
The foundation of the Board's refusal to permit respondent to submit proof in support of its allegations as set forth by the Board in its decision of September 23, 1952 was that the Board had already either accepted that proof as true or resolved it "* * * on the basis of the substantially uncontradicted report of our Regional Director's investigation * * *." The Board in its brief goes even further in endeavoring to justify its position. It states that (Emphasis supplied.)
In view of those statements the Board under Section 102.61(b) had the authority to reject the application for hearing. Cf. NLRB v. Huntsville Mfg. Co., 5 Cir., 1953, 203 F.2d 430. But in our judgment the record, acquiesced in by the Board, afforded no substantial support for the latter's decision that the election was proper and the union rightfully certified as bargaining agent. Both Miss Lyons and Mrs. Humphreys were deprived of their opportunity to vote under conditions within the control of the Board agent. The latter had the serious responsibility of seeing to it that the collective bargaining policies of the Act were carried out and in permitting this election to end as it did those policies were disregarded. Instead of no possible doubt existing but that the majority had prevailed it is firmly established that whether the union was in fact the majority preference depended entirely upon the Lyons, Humphreys and Elder votes.
The Board admittedly...
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