National Labor Relations Board v. AJ Tower Co., 4099.

• Decision Date: 13 December 1945
• Docket Number: No. 4099.,4099.
• Citation: 152 F.2d 275
• Parties: NATIONAL LABOR RELATIONS BOARD v. A. J. TOWER CO.
• Court: U.S. Court of Appeals — First Circuit

152 F.2d 275 (1945)

NATIONAL LABOR RELATIONS BOARD v. A. J. TOWER CO.

No. 4099.

Circuit Court of Appeals, First Circuit.

December 13, 1945.

Before MAHONEY, WOODBURY, and ALBERT LEE STEPHENS (special assignment), Circuit Judges.

Louis Libbin, of Washington, D. C. (Malcolm F. Halliday, Associate Gen. Counsel, Alvin J. Rockwell, Gen. Counsel, and Ida Klaus and Emily Cronheim, Attys., National Labor Relations Board, all of Washington, D. C., of counsel), for petitioner.

John T. Noonan, of Boston, Mass. (Edward E. Elder, of Boston, Mass., of counsel), for respondent.

MAHONEY, Circuit Judge.

This case comes before us on petition of the National Labor Relations Board, hereinafter referred to as the Board, for enforcement of its order issued against A. J. Tower Company, hereinafter referred to as the Company, pursuant to § 10(c) of the National Labor Relations Act, 49 Stat. 453, 29 U.S.C.A. § 160(c), requiring the respondent to cease and desist from refusing to bargain with Local No. 24, Waterproof Garment Workers Union, affiliated with the International Ladies Garment Workers Union (A. F. of L.), hereinafter referred to as the Union, "as the exclusive representative of all the employees of the respondent at its Roxbury, Massachusetts, plant * * *."

On April 27, 1944, the Company and the Union executed an agreement for a consent election. In accordance with the agreement the Company furnished the Regional Director of the Board, who was to conduct the election, with its payroll list for April 21, 1944, the payroll date contained in the agreement for the determination of eligible voters. Included in this list was the name of Jennie A. Kane with the notation that she was "Out Sick." There was evidence to the effect that this employee had last worked for the Company on March 24th and had not entered the plant from then until May 5, 1944, the date of the election, at which time she voted. Although the Company had observers present at the polls for the purpose of challenging questionable voters, her vote was not challenged and her ballot was commingled with the others.

When the payroll list was furnished the Company officials had no knowledge that Mrs. Kane had severed her employment but believed that her absence from work was due to illness. The Company was still under that belief at the time of the election and for that reason did not challenge her vote. After the election a "Certification on Conduct of Election" was signed by representatives of the Company, the Union and the Board, certifying that the balloting had been held, that it was fairly conducted, and that all eligible voters were given an opportunity to cast their ballots secretly. The tabulation of the ballots disclosed that 231 votes were cast, 116 being cast for the Union and 114 against it and one ballot had been challenged by the Union. The Board's Regional Director certified that a majority of ballots had been cast for the Union and that there were not challenges sufficient in number to affect the result of the election, so that it was unnecessary to consider the validity of the ballot challenged by the Union. Hence on this appeal we must assume that the last mentioned ballot was a valid vote and that it was cast against the Union. Thus, for our purposes, the total vote against the Union was 115, the total vote for the Union 116, of which Mrs. Kane's vote is one. And so, if Mrs. Kane was not eligible to vote the result might have been a tie. Although there is no reliable method of determining for whom Mrs. Kane voted, since her ballot was commingled with the other 230 ballots, we must assume that she voted for the Union. In fact, there was evidence to that effect.

Evidence before the Trial Examiner showed that the Company officials, within a few days after the election, learned that Mrs. Kane had applied for unemployment benefits and that the Company's files contained a notice from the Division of Employment Security for the Commonwealth of Massachusetts stating that Mrs. Kane had applied for unemployment benefits on April 28, 1944, and gave the date of the severance of her employment with the Company as March, 1944. This was the first time the notice had come to the attention of a supervisory official of the Company. The Company on May 9th filed with the Regional Director an objection to his basing any determination of representatives upon Mrs. Kane's ballot since she was not an employee at the time she voted.

The Regional Director filed a report on these objections but did not make a finding as to whether Mrs. Kane was an employee at the time she voted and held that the Company could not challenge her vote after the election since the consent election agreement provided for the challenging of the eligibility of individual voters only at the time of the balloting. The Regional Director then certified the Union as exclusive representative of all the employees. The Company thereafter refused to bargain with the Union on the ground that the Union had not been validly chosen as the bargaining agent of a majority of the employees. The Board, upon a charge filed by the Union, issued a complaint alleging that the Company was engaging in unfair labor practices. A hearing was held before a Trial Examiner and his conclusion that the Company had lost its right to challenge the status of Mrs. Kane and was therefore guilty of an unfair labor practice under § 8(1) and (5) of the Act, 29 U.S.C.A. § 158(1, 5), was affirmed by the Board and the order which the Board here seeks to enforce was then issued.

The issues before us are: (1) Whether the Board had jurisdiction to find the Company guilty of an unfair labor practice for refusing to bargain with the certified representative of the employees; and (2) whether the Company had waived its right to challenge the vote of Mrs. Kane.

The provisions of the consent election agreement with which we are here concerned are set forth below.¹ This agreement was approved by the Board's Regional Director.

The Company urges that it is not guilty of the unfair labor practice of refusing to bargain with the representative certified by the Board since the Union was not selected as the bargaining agent by a majority of the employees in the designated unit, and that neither waiver nor estoppel can enlarge an unfair labor practice as defined by the National Labor Relations Act.

The Company's contention that the Union does not represent a majority of the employees depends upon its assertion that Mrs. Kane was not an employee on the date specified in the election agreement. There is no evidence before us on this issue and neither the Trial Examiner nor the Board made any finding as to whether she had the status of an employee when she voted. The Trial Examiner and the Board held that because the Company had not challenged Mrs. Kane's vote at the time of the election it was estopped from contesting the validity of her ballot at any time thereafter. Although the parties are not in accord as to whether the consent election agreement permitted a challenge of an employee's ballot after the election, we do not find it necessary to consider that problem because of the view we take of the case.

Section 8(5) of the Act makes it an unfair labor practice for an employer to refuse to bargain with the representative of his employees chosen by a majority of those employees. We do not believe that the Board has jurisdiction to find an employer guilty of such violation unless the Union with which he refuses to deal was chosen by a majority of the employees voting in the election. The Act...