NLRB v. CONTINENTAL NUT COMPANY
| Decision Date | 08 July 1968 |
| Docket Number | No. 22338.,22338. |
| Citation | 395 F.2d 830 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CONTINENTAL NUT COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Davison (argued), Arthur A. Horowitz, Attys., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., Roy O. Hoffman, Director, N.L.R. B., San Francisco, Cal., for appellant.
Wesley J. Fastiff (argued) of Littler, Mendelson & Fastiff, Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., for appellee.
Before MADDEN, Judge of the United States Court of Claims, and MERRILL and BROWNING, Circuit Judges.
The National Labor Relations Board has petitioned this court, pursuant to § 10(e) of the National Labor Relations Act, 29 U.S. Code § 151, et seq., for enforcement by the court of the Board's order directing the respondent, Continental Nut Company, to bargain collectively with Warehousemen's Union, Local 17, International Longshoremen's and Warehousemen's Union, a union of its employees, and to cease and desist from certain other unfair labor practices. The two entities will hereinafter be called the employer and the union.
We narrate the events which led up to the instant appeal to this court. The union filed a petition with the Board pursuant to § 159 of Title 29, United States Code, requesting the Board to certify the union as the sole collective bargaining agent for a certain unit of the company's employees. As not infrequently occurs, the parties entered into a written agreement for a "consent election," instead of going through what is sometimes a rather ponderous hearing at which evidence is taken concerning the jurisdiction of the Board, the appropriate unit of employees to be included in the election if an election is ordered by the Board, and perhaps other pertinent matters. In this case there were no such unresolved problems and the parties, as we have said, agreed that the sentiment of the employees as to whether or not they desired to be represented by the petitioning union might be determined in an election to be conducted by the Board's Regional Director, under the Board's rules applicable to consent elections.
The election agreement, signed by the employer and the union and approved by the Regional Director, was a stereotyped document, the language of which had frequently been used by the Board in similar circumstances. We quote the pertinent parts of the agreement, italicizing some of its language:
The election took place on October 28, 1966. The union and the employer, both of which had had observers present at the election, signed certificates that the election had been fairly conducted. The votes were counted and there were 90 votes for the union and 73 against it, and two challenged ballots. On November 4 the company filed an objection to the election as the election agreement authorized it to do. The stated ground for the objection was that the union had promised numerous employees that initiation fees would be waived if the union won the election. The Regional Director made a full investigation and, on December 1, 1966, a report, as the election agreement required. He overruled the employer's objection and stated in his report that the union had told employees that initiation fees for all employees would be reduced if the union won the election, and had told them that the union, in the past, had reduced initiation fees when a large group of employees had joined the union at the same time. He stated in his report that the union's promises were not objectionable because the employees understood that any reduction in the initiation fee would apply to all employees who joined the union, regardless of how any individual employee voted in the election. Having overruled the company's objection, the Regional Director certified the union as the sole collective bargaining agent.
On December 19, 1966, the union requested the employer to meet with it for the purpose of negotiating a collective bargaining agreement. The employer by letter dated December 28, 1966, refused to enter into collective bargaining...
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NATIONAL LABOR RELATIONS BOARD v. MONTICELLO CEDAR COMPANY, 23643.
...or capricious" action on the part of the Regional Director which this circuit has indicated a willingness to review. NLRB v. Continental Nut Co. (9 Cir. 1968), 395 F.2d 830; cert. denied 393 U.S. 1000, 89 S.Ct. 485, 21 L.Ed.2d 464 (1968); NLRB v. Hood Corporation (9 Cir. 1965), 346 F.2d We ......