National Labor Relations Board v. SW Evans & Son, No. 10021.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtMARIS, McLAUGHLIN and KALODNER, Circuit
Citation181 F.2d 427
PartiesNATIONAL LABOR RELATIONS BOARD v. S. W. EVANS & SON.
Docket NumberNo. 10021.
Decision Date31 March 1950

181 F.2d 427 (1950)

NATIONAL LABOR RELATIONS BOARD
v.
S. W. EVANS & SON.

No. 10021.

United States Court of Appeals Third Circuit.

Argued November 22, 1949.

Decided March 31, 1950.


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

Geoffrey J. Cunniff, Philadelphia, Pa., (Emanuel G. Weiss, Philadelphia, Pa., John Harper, Philadelphia, Pa., on the brief), attorneys for respondent.

Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

This is a petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., as amended by the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 141 et seq., to enforce its order against the respondent, issued on January 17, 1949, following proceedings under Section 10 of the amended Act. The findings of fact, conclusions of law, and order of the Board are reported in 81 N.L.R.B. 161. Previously there was a representation proceeding

181 F.2d 428
the record of which forms a part of this case, and the decision of the Board together with its certification are reported in 75 N.L.R.B. 811

The questions at issue here are (1) whether the certification of representatives was proper in view of the denial to the respondent of a pre-election hearing, and (2) whether the respondent was denied a fair hearing with respect to alleged unfair labor practices because of the deletion of a portion of its motion for a bill of particulars.

On February 19, 1947, the American Federation of Labor ("Union") filed with the Board pursuant to Section 9 of the National Labor Relations Act, a petition for certification as exclusive representative of certain employees of the respondent. Its petition declared the appropriate unit to include "Production and Maintenance Employees including leadmen, guards, and/or watchmen, inspectors and factory clerical employees" but excluded foremen and supervisory employees. The respondent sought a pre-election hearing, contending that there existed substantial issues with respect to the appropriate unit and with respect to eligibility to vote. It further appears that the respondent contemplated, and was in the process of, reducing the number of its permanent employees; nevertheless the Regional Director determined to hold the election prior to any hearing, and notice thereof was mailed to the respondent's employees. The notice stated that those employees eligible to vote were "all production and maintenance employees * * * who were employed * * * during the payroll period ending Saturday, March 29, 1947" except, "office clerical employees, foremen, and any other supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees, or effectively recommend such action." The respondent had, in accordance with the request of the Regional Director, submitted its payroll for the period ending March 29, 1947, but in doing so called attention to the fact that a large number had been permanently discharged.

The election was held on April 30, 1947. A total of 82 of respondent's employees actually voted, of whom 54 cast ballots for, and one against, the Union. The remaining 27 ballots were challenged by a Board representative in the absence of participation in the holding of the election by the respondent.

On June 25, 1947, a hearing was had before a hearing officer. The respondent did not present evidence in its behalf, but moved to dismiss the petition for certification on three grounds, only two of which are here pertinent: (1) the respondent was entitled to a pre-election hearing to determine the appropriate unit and those employees eligible to vote, and (2) the vote as reflected in the tally of ballots did not indicate that the Union had been selected by a representative number of respondent's employees.

In its decision, the Board noted that the payroll list indicated 307 eligible voters. It found, however, that only 176 employees were eligible to vote, since 113 had been laid off by the respondent prior to election and 18 others were supervisors ineligible to vote. Accordingly, of the 27 challenged ballots, the Board found that the challenges to 24 should be sustained because the voters had been permanently released from employment, and that one challenge should be overruled, according to the stipulation of the parties. As to the remaining two challenged ballots, the Board sustained one, as cast by a supervisory employee, and overruled the other, finding as fact that the employee involved was not performing work of a supervisory nature. Further, the Board determined that guards, watchmen and factory as well as office clericals at the respondent's plant should not be included in the collective bargaining unit; this, of course, was contrary to the statement of eligible voters contained in the Notice of Election. Finally, the Board overruled the respondent's contentions that it was entitled to a pre-election hearing and that the election was not representative, and it certified the Union. 75 N.L.R.B. 811.

Thereafter, the respondent refused to bargain with the Union. Upon a charge by the Union, the Board on April 2, 1948, issued its complaint alleging that the respondent had violated Section 8(a) (5) of

181 F.2d 429
the amended Act by its refusal to bargain, and additionally alleged other unfair labor practices between November, 1946, and January, 1948, in violation of Section 8(a) (1) of the amended Act. Prior to hearing on the complaint, the respondent presented a motion for a bill of particulars seeking specific information with respect to (1) the names of its officers or employees who allegedly committed the unfair labor practices within Section 8(a) (1), and (2) the times or...

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4 practice notes
  • Lincoln Rochester Tr. Co. v. Commissioner of Int. R., No. 193
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 19, 1950
    ...condition in life." And in Rezzemini v. Brooks, 236 N.Y. 184, 140 N.E. 237, 239, it was directed that provision in the will for "the 181 F.2d 427 proper support of my said son" should be construed in terms of the testatrix' "knowledge of the property owned by the son and the income derivabl......
  • Curtiss-Wright Corp., Wright Aero. Div. v. NLRB, No. 14739.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 8, 1965
    ...F.2d 782, 800 (7 Cir. 1951). 25 N.L.R.B. v. Pacific Gas & Electric Co., 118 F.2d 780, 788 (9 Cir. 1941). 26 N.L.R.B. v. S. W. Evans & Son, 181 F.2d 427, 431 (3 Cir. 1950). 27 See, e.g., Northwestern Bell Tel. Co. v. Nebraska State Ry. Comm., 297 U.S. 471, 476, 56 S.Ct. 536, 80 L.Ed. 810 (19......
  • Lloyd A. Fry Roofing Co. v. National Labor Rel. Bd., No. 4911.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 6, 1955
    ...the Board and the issues which would be considered at the hearing. See National Labor Relations Board v. S. W. Evans & Son, 3 Cir., 1950, 181 F.2d 427, The petitioner's contention that the trial examiner was biased and prejudiced against it does not warrant extended discussion. The argument......
  • Peabody Coal Company v. NLRB, No. 12886.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 2, 1960
    ...two charging parties and these two had in fact been discharged from a going concern. In N. L. R. B. v. S. W. Evans & Son, 3 Cir., 1950, 181 F.2d 427, to which our attention is also invited by the Board, the Court noted (at page 431) that the complaint there stated with reasonable specificit......
4 cases
  • Lincoln Rochester Tr. Co. v. Commissioner of Int. R., No. 193
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 19, 1950
    ...condition in life." And in Rezzemini v. Brooks, 236 N.Y. 184, 140 N.E. 237, 239, it was directed that provision in the will for "the 181 F.2d 427 proper support of my said son" should be construed in terms of the testatrix' "knowledge of the property owned by the son and the income derivabl......
  • Curtiss-Wright Corp., Wright Aero. Div. v. NLRB, No. 14739.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 8, 1965
    ...F.2d 782, 800 (7 Cir. 1951). 25 N.L.R.B. v. Pacific Gas & Electric Co., 118 F.2d 780, 788 (9 Cir. 1941). 26 N.L.R.B. v. S. W. Evans & Son, 181 F.2d 427, 431 (3 Cir. 1950). 27 See, e.g., Northwestern Bell Tel. Co. v. Nebraska State Ry. Comm., 297 U.S. 471, 476, 56 S.Ct. 536, 80 L.Ed. 810 (19......
  • Lloyd A. Fry Roofing Co. v. National Labor Rel. Bd., No. 4911.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 6, 1955
    ...the Board and the issues which would be considered at the hearing. See National Labor Relations Board v. S. W. Evans & Son, 3 Cir., 1950, 181 F.2d 427, The petitioner's contention that the trial examiner was biased and prejudiced against it does not warrant extended discussion. The argument......
  • Peabody Coal Company v. NLRB, No. 12886.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 2, 1960
    ...two charging parties and these two had in fact been discharged from a going concern. In N. L. R. B. v. S. W. Evans & Son, 3 Cir., 1950, 181 F.2d 427, to which our attention is also invited by the Board, the Court noted (at page 431) that the complaint there stated with reasonable specificit......

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