Neuhoff Brothers, Packers, Inc. v. NLRB, 22917.

Decision Date17 June 1966
Docket NumberNo. 22917.,22917.
Citation362 F.2d 611
PartiesNEUHOFF BROTHERS, PACKERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Fritz L. Lyne, Lyne, Blanchette, Smith & Shelton, George C. Dunlap, Dallas, Tex., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, George B. Driesen, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Peter Giesey, Atty., N. L. R. B., for respondent.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and CHOATE, District Judge.

TUTTLE, Chief Judge:

This is a petition brought by the company to set aside an order of the National Labor Relations Board and a cross-petition by the Board for enforcement. The Board, affirming the trial examiner's decision, found that the company had violated Sections 8(a) (5) and (1) of the Act, by refusing to bargain with a certified union, following representation proceedings which are the subject of attack by the company.

On July 27-28, 1964, a hearing was held on the union's representation petition, requesting certification for a unit, limited to "all production and maintenance employees of the company's Dallas plant, located at 2821 Alamo Street." On August 28, 1964, based upon the facts adduced in this hearing, the Regional Director issued a decision and direction of election, finding an appropriate unit consisting of "all production and maintenance employees at the employer's Alamo Street plant and its hotel and restaurant department Wood Street plant also in Dallas * * * including porters and intra-plant truck drivers" but excluding inter-alia employees in the feed lot department at Milford, Texas and certain other truck drivers. Petitioners request for review of the Regional Director's action was denied by the Board, since it allegedly "raised no substantial issues warranting review."

Pursuant to the Regional Director's order, an election was conducted on September 22, 1964, resulting in 315 votes being cast for the union, 347 against and 43 challenged ballots. The union filed objection to the following employer conduct, allegedly affecting the outcome of the election: i Certain pre-election conduct including the following, "By questioning the employees about how they were going to vote;" ii the manner in which the company prevented three alleged employees from voting by denying them access to the grounds of the company, where the balloting was taking place. Finding that the company had engaged in "conduct reasonably calculated to interfere with a free choice in the election," the Regional Director, on January 12, 1965, set the election aside. The company's request for review of this order was denied by the Board.

The Regional Director then ordered a second election, which was held on February 18, 1965, at a public park near the Alamo Street plant, the reason being given that the company had previously refused to permit employees allegedly entitled to cast challenged ballots to enter its premises. This election resulted in 388 votes for the union, 295 against and 58 challenged votes. During this election, Board agents who were conducting it refused to allow 13 employees, whose ineligible (supervisory) status had been "established" by the Regional Director after the first election, to vote. However, these agents permitted two other employees, previously found ineligible, to cast challenged ballots, after questioning revealed that the duties of these two employees had changed. While the polls were still open, the company requested that the Regional Director allow the 13 "supervisory" employees at least to cast challenged ballots. This request was denied.

Subsequently, the company filed a timely objection to the second election, alleging that certain conduct of the Board agents in the presence of voting employees indicated that the Board favored the union in the election. The Regional Director found this contention to be without merit and also found that the 13 employees denied ballots had previously been found to be supervisors and were thus properly excluded from the unit. Based upon these findings, he certified the union as the representative of the employees in the appropriate unit. The company's request for a review of this latter decision was denied by the Board as raising no substantial issues warranting review.

The union unsuccessfully sought to bargain with the company; it then filed charges and the complaint in the instant case issued. After the company answered, the general counsel moved for judgment on the pleadings. The trial examiner issued an order to show cause directing the company to indicate the factual issues it intended to raise. Upon consideration of the company's response, the examiner concluded that no factual hearing was required and determined the issues of law in favor of the general counsel.

In view of the state of the record (in effect, the grant of summary judgment), we must assume that for the Board to prevail, any factual issues that may have properly been raised before the Board, are to be viewed most strongly from the standpoint of the company, with the exception of the issues as to the appropriateness of the bargaining unit. As to this, there was a hearing and resolution of the issue by the Director.

In light of the "large measure of informed discretion" committed to the Board in this area of fixing appropriate units, Packard Motor Car Co., v. N. L. R. B., 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040, we conclude that the Board's determination that the unit actually designated was an appropriate unit even though some other unit might also have been properly designated, must be affirmed.

The two grounds for setting aside the first election were: (1) the company prevented three persons from entering its premises to cast ballots, and (2) in the period between the filing of the petition and the election, supervisory employees interviewed individual employees, sometimes at places away from their work stations, urging them to vote against the union.

We deal first with the action of the company in turning away from the gate three "employees." It is not disputed that the desirable atmosphere surrounding holding of such an election is what has been described as "laboratory conditions." See N. L. R. B. v. Houston Chronicle Publishing Company, 5th Cir., 300 F.2d 273, 278. It is against this background that we test the undisputed facts relating to the denial of access of the three persons to the company's premises. Since there was no resolution of any disputed issues, we must assume the facts to be as stated by the affidavit of Joe Boyd Neuhoff, an employee of the petitioner who was stationed at the...

To continue reading

Request your trial
24 cases
  • NLRB v. Smith Industries, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 12, 1968
    ...v. Air Control Products of St. Petersburg, Inc., 5 Cir., 1964, 335 F.2d 245, and cases cited therein. See Neuhoff Brothers Packers, Inc. v. N. L. R. B., 5 Cir., 1966, 362 F.2d 611; Home Town Foods, Inc. v. N. L. R. B., 5 Cir., 1967, 379 F.2d 241. After the complaint was issued, the General ......
  • Home Town Foods, Inc. v. NLRB
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 1, 1969
    ...the requisite "laboratory conditions." 379 F.2d at 244. See Electra Mfg. Co. v. NLRB, 5 Cir. 1969, 408 F.2d 570; Neuhoff Bros. Packers, Inc. v. NLRB, 5 Cir. 1966, 362 F.2d 611, cert. denied 386 U.S. 956, 87 S.Ct. 1027, 18 L.Ed.2d 106; NLRB v. Houston Chronicle Pub. Co., 5 Cir. 1962, 300 F.2......
  • NLRB v. Golden Age Beverage Company
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 7, 1969
    ...review is whether the Board has reasonably exercised its discretion." 403 F.2d at 522, citing Neuhoff Brothers, Packers, Inc. v. N.L.R.B., 362 F.2d 611 (5th Cir.1967). Because it is for the Board to decide if the conduct charged reasonably tends to inferfere with the employees' free choice,......
  • NLRB v. Union Brothers, Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 14, 1968
    ...v. NLRB, 388 F.2d 683 (4th Cir. 1968); NLRB v. Carolina Natural Gas Corp., 386 F.2d 571 (4th Cir. 1967); Neuhoff Bros., Packers, Inc. v. NLRB, 362 F.2d 611 (5th Cir. 1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1027, 18 L.Ed. 2d 106 (1967); NLRB v. Tennessee Packers, Inc., 379 F.2d 172 (6th ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT