National Labor Relations Board v. Tower Co

• Citation: 91 L.Ed. 322,329 U.S. 324,67 S.Ct. 324
• Decision Date: 23 December 1946
• Docket Number: No. 60,60
• Parties: NATIONAL LABOR RELATIONS BOARD v. A. J. TOWER CO
• Court: U.S. Supreme Court

329 U.S. 324

67 S.Ct. 324

91 L.Ed. 322

NATIONAL LABOR RELATIONS BOARD

v A. J. TOWER CO.

No. 60.

Argued Nov. 21, 1946.

Decided Dec. 23, 1946.

Mr.Gerhard P. Van Arkel, of Washington, D.C., for petitioner.

Mr. John T. Noonan, of Boston, Mass., for respondent.

Mr. Justice MURPHY delivered the opinion of the Court.

The issue here concerns the procedure used in elections under the National Labor Relations Act¹ in which employees choose a statutory representative for purposes of collective bargaining. Specifically, we must determine the propriety of the National Labor Relations Board's refusal to accept an employer's post-election challenge to the eligibility of a voter who participated in a consent election.

The respondent and a union entered into an agreement to conduct an election by secret ballot on May 5, 1944, under the supervision of the Board's regional director, to determine whether the employees at respondent's Roxbury plant in the unit defined in the agreement desired to be represented by the union. The agreement was approved by the regional director and provided that the election was to be held 'in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board.'

The agreement set forth the qualifications for participation in the election. Only those who appeared on the pay-roll on April 21, 1944, were eligible; included were those employees who did not work at the time because they were ill, or on vacation, or temporarily laid off, or in the armed forces. The respondent had the duty of furnishing the regional director with an accurate list of the eligible voters, together with a list of the ineligible employees. ² The list of eligible voters was duly submitted on May 1, 1944.

The agreement further provided that both the union and the respondent could have observers at the polling places to assist in the handling of the election, to challenge the eligibility of voters and to verify the tally. If challenges were made and if they were determinative of the results of the election, the regional director was to investigate the challenges and issue a report thereon. All objections 'to the conduct of the ballot' or 'to a determination of representatives based on the results thereof' were to be filed with the regional director within five days after issuance of the 'Tally of Ballots.' If the regional direc- tor sustained the objections, he had the power to void the results and order a new election. The determination of the regional director was to 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.' Cf. Article III, §§ 10 and 12, of the Board's Rules and Regulations (Series 3, effective Nov. 26, 1943).

The balloting took place on May 5 in accordance with this agreement. After the ballots were counted, the union and the respondent signed a 'Tally of Ballots,' in which the regional director certified that, of the 230 valid votes counted, 116 were cast for the union and 114 against it, with one other ballot being challenged by the union.³ Four days later, on May 9, respondent's counsel wrote the regional director that subsequent to the election 'it came to the attention of the management of the Company that Mrs. Jennie A. Kane, one of the persons who voted at the election, was not at the time an employee of the Company.'⁴ The letter explained that Mrs. Kane was employed by respondent from March 16, 1943, through March 24, 1944, but that after the latter date she had nev r reported again for work and had never appeared at the plant except for purpose of voting on May 5. It was admitted that the respondent, 'not being advised by Mrs. Kane of any intention on her part to leave their employ, assumed that she was ill, and continued her among their list of employees and, therefore, did not exclude her from the list of employees they believed eligible to vote.' The letter accordingly challenged Mrs. Kane's right to vote, as well as the ballot cast by her. A hearing was requested for the purpose of passing upon the one ballot challenged by the union. If that challenge were not sustained and the ballot proved to be a vote against the union, Mrs. Kane's ballot would become material to the result of the election; on that condition, the respondent requested a hearing on its challenge to Mrs. Kane's vote.

A hearing on the matters raised by this letter was held before the regional director. He subsequently made a report in which he found that respondent included Mrs. Kane's name on the list of eligible voters submitted on May 1 on the assumption that she was ill and had not quit her job; that reaspondent made no attempt between May 1 and May 5 to remove Mrs. Kane's name from the list, although prior to the election respondent received by mail a notice of Mrs. Kane's claim for unemployment compensation; that respondent's observers at the polls had not challenged Mrs. Kane when she voted in their presence; and that these observers certified before the ballots were counted that the election had been properly conducted. The regional director also found that the evidence was conflicting as to Mrs. Kane's actual status.⁵ But he concluded that under the circumstances the respondent had waived its right to challenge her vote or to object to the election on this ground. This determination made it unnecessary for him to rule on the ballot previously challenged by the union, since it could not affect the result. He thus found that the union had received a majority of the valid votes cast and was the exclusive representative of the employees in the appropriate unit.

The respondent thereafter refused to bargain with the union in question. Upon a complaint issued by the Board, the respondent admitted its refusal but denied that the union had ever been designated by a majority of the employees in the appropriate unit. It asserted that the election of May 5 was inconclusive on the subject because if Mrs. Kane's ballot were subtracted from the union's total and if the ballot challenged by the union were opened upon overruling the challenge and proved to be against the union, the outcome of the election would be a tie vote. The Board, after the usual proceedings, held that it would not disturb the rulings of a regional director on questions arising out of a consent election 'unless such rulings appear to be unsupported by substantial evidence or are arbitrary or capricious' and that no such grounds for disturbing the ruling were present in the instant case. As an alternative ground for its action, the Board held that the regional director's refusal under the Circumstances to permit an attack on Mrs. Kane's status as a voter after the results of the election had been announced 'is in complete accord with the extablished principles and policy of the Board'—which excluded post-election challenges 'because of our belief that otherwise an election could be converted from a definitive resolution of preference into a protracted resolution of objections disregarded or suppressed against the contingency of an adverse result.' See also Matter of Norris, Inc., 63 N.L.R.B. 502, 512. The Board accordingly ordered respondent to cease and desist from its unfair labor practice and to take the affirmative action of bargaining collectively with the union. 60 N.L.R.B. 1414.

The First Circuit Court of Appeals, however, set aside the Board's order. 152 F.2d 275. It construed the Act as making it a jurisdictional prerequisite to a determination that an employer has committed the unfair labor practice of refusing to bargain collectively that the union with which he has refused to deal should have been chosen by a majority of those voting who were in fact employees. It held that since the vote challenged by the union may have been cast against it and since Mrs. Kane was not found to have been an employee on the crucial date, there may have been a tie vote and the Board was without jurisdiction to find the respondent guilty of a violation of § 8(5). We granted certiorari, 328 U.S. 827, 66 S.Ct. 1011, because of the importance of the matter in the administration of the Act and because of a conflict between the result below and that reached by the Sixth Circuit Court of Appeals in N.L.R.B. v. Capital Greyhound Lines, 140 F.2d 754.

As we have noted before, Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees. Southern S.S. Co. v. National Labor Board, 316 U.S. 31, 37, 62 S.Ct. 886, 890, 86 L.Ed. 1246; National Labor Board v. Waterman S.S. Co., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704; National Labor Board v. Falk Corporation, 308 U.S. 453, 458, 60 S.Ct. 307, 310, 84 L.Ed. 396. Section 9(c) of the Act authorizes the Board to 'Take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.' In carrying out this task, of course, the Board must act so as to give effect to the principle of majority rule set forth in § 9(a), a rule that 'is sanctioned by our governmental practices, by business procedure, and by the whole philosophy of democratic institutions.' S.Rep. No. 573, 74th Cong., 1st Sess., p. 13. It is within this democratic framework that the Board must adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.

The principle of majority rule, however, does not foreclose practical adjustments designed to protect the election machinery from t e ever-present dangers of abuse and fraud. Indeed, unless such adjustments are made, the democratic process may be perverted and the election may fail to reflect the will of the majority of the electorate. One of the commonest protective devices is to require...