National Labor Relations Board v. Capitol G. Lines
| Decision Date | 31 January 1944 |
| Docket Number | No. 9592.,9592. |
| Citation | 140 F.2d 754 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. CAPITOL GREYHOUND LINES et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Dominic Manoli, of Washington, D. C. (Robert B. Watts, Howard Lichtenstein, Frank Donner, and Sanford H. Bolz, all of Washington, D. C., on the brief), for petitioner.
Thomas L. Tallentire, of Cincinnati, Ohio, for respondent.
Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.
In essence, this is a labor-bargaining-agency election contest. The case comes here on petition of the National Labor Relations Board for enforcement of its customary cease and desist order, with the usual sequential directives, against the respondent incorporated bus lines, which insist that the organized Labor Union, recognized by the Labor Board, but not by respondents, as bargaining representative of the respondents' bus drivers, was not chosen appropriately to the requirements of Section 9 of the National Labor Relations Act, 29 U.S.C.A. § 159.
If the Union was chosen as collective bargaining agent in conformity with due process under the National Labor Relations Act, the order of the Board should unquestionably be enforced. Compare N. L. R. B. v. National Mineral Co., 7 Cir., 134 F.2d 424; N. L. R. B. v. Piqua Munising Wood Products Co., 6 Cir., 109 F.2d 552; N. L. R. B. v. Whittier Mills Co., 5 Cir., 111 F.2d 474.
The dispute emanates from a consent election conducted by a Regional Director of the Labor Board. The election was held pursuant to a signed agreement in form ordinarily used by the Regional Director in consent elections held under supervision of the Board. The contracting parties were Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Div. 1299, A. F. L., of the one part, and Capitol Greyhound Lines and Subsidiaries of the other.
The consent election agreement stated at the outset that the bus drivers constituted an appropriate Unit for the purposes of collective bargaining with the bus companies. The next paragraph of the agreement provided that an election by secret ballot should be conducted under the direction and supervision of the Regional Director among all employees in the Unit who were employed by the bus companies during the payroll period ending July 31, 1942. Expressly included among eligible voters were employees who did not work during such payroll period because ill or on vacation or in active military training or service. It was stipulated that the election should be held to determine whether or not the bus drivers desired to be represented by the Union for purposes of collective bargaining.
It was provided that the election should be held on Wednesday, September 2, 1942, during stipulated hours, at several specified places; and that the employers should post notices of the election, at conspicuous and usual posting places, easily accessible to the eligible voters. These notices, describing the manner of conducting the election and incorporating a sample ballot, were to be supplied by the Regional Director. The signed agreement for the consent election stated that there was attached thereto, marked Annex B, "a list which all parties agree constitutes the sole and exclusive list of eligible voters." The respondent companies prepared and furnished as Annex B a list of seventy-three names, arranged in alphabetical order.
The election agreement contained a broad vestiture in the Regional Director of final authority to determine questions as to the eligibility of voters in the following clause: "Said election shall be held in accordance with the Act, the 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 either party hereto relating in any manner to the election and not specifically covered in this Agreement."
Provision was made for the handling, counting and tabulation by the Regional Director of the votes cast. The employers and the Union each were to be allowed an equal number of authorized observers to be selected from non-supervisory employees, to assist in the conduct of the election, to challenge the eligibility of voters and to verify the tally of votes.
Objections to the conduct of the balloting or to the determination resulting therefrom were to be filed with the Regional Director within five days after the closing of the polls and copies of such objections were to be served upon the opposite party. The Regional Director was obligated to investigate promptly all objections and to issue his report containing a tally sheet showing the result of the election. If objections should be sustained he was empowered to void the election and conduct a new one in accordance with the consent agreement at a date, time and place to be determined by him. Should objections be overruled, or if none should be filed, the Regional Director was obligated to include in his report a finding and determination as to whether the employees in the Unit had selected the Union as their bargaining representative. The consent election agreement was made subject to the approval of the Regional Director and received his approval August 22, 1942.
In conformity with the notices, the election was duly held on September 2, 1942. The notices of election were properly posted and were fully informative. The voting schedule attached to the notice of election gave clear directions as to the exact places in the respective cities where named employees would vote and the hours during which the polls would be open at each voting place. Notice was given moreover that "if any employee cannot vote at the place designated for him he may vote at any of the other polling places if he appears while the polls are open." The notices were posted over the typewritten signature of the Regional Director.
After the election, certifications were signed by observers for the respondents, the Union and the Regional Director, respectively, at each of the polling places that the balloting had been fairly conducted; that all eligible voters had been given opportunity to vote in secret; and that the ballot box had been protected in the interest of a fair and secret vote.
Representatives of the respondents, the Union and the Regional Director, respectively, signed a certification of the counting and tabulating of the ballots. It was certified by them that the ballots had been counted and tabulated fairly and accurately, secrecy of the ballots being maintained; and that the total number of voters on the eligibility list was 73, whereof 63 cast ballots and one ballot was challenged. It was certified over the signatures of these representatives that 62 valid votes had been counted, whereof 32 had been cast for the Union and 30 against the Union. Tally sheets were attached to this certificate.
In due time, the respondent filed with the Regional Director "Objections to the Conduct of Ballot in Consent Election." These objections were stated to be that (1) the Regional Director had failed to make arrangements for two sick employees to vote, and that two other employees could not vote because the operation of their busses prevented their appearance at a voting place during the conduct of the poll; (2) the Regional Director had failed to provide voting opportunity to four employees, who were in the active military service of the United States at the time of the election; (3) one employee, Nolan, who had voted, was not entitled to cast a ballot for the reason that he was not in the employ of the respondents during the payroll period ending July 31, 1942, as required by the consent election agreement, even though his name erroneously appeared on the list of eligible voters set forth in Annex B; (4) the vote of another employee, Thomas, whose name appeared on the list of eligible voters, was improperly challenged and not counted.
Formal hearing by the Regional Director was had on these objections, testimony of witnesses was...
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