NLRB v. GENERAL TUBE COMPANY
Decision Date | 13 May 1964 |
Docket Number | No. 15594.,15594. |
Citation | 331 F.2d 751 |
Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL TUBE COMPANY, Respondent. |
Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Morton Namrow, Attys., N. L. R. B., Washington, D. C., on the brief, for petitioner.
Richard F. Hooker and James L. Stokes, Grand Rapids, Mich., Richard F. Hooker, Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., on the brief, for respondent.
Before CECIL and EDWARDS, Circuit Judges, and McALLISTER, Senior Circuit Judge.
The National Labor Relations Board petitions herein for enforcement of its order requiring respondent to engage in collective bargaining with a union. This union (the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO) had won a hairline victory in a consent election in respondent's plant by a vote of 33 to 32 and had been certified collective bargaining agent by the NLRB.
Before this court the entire argument pertains to the eligibility to vote of a female employee, Lois Ware, whose ballot was challenged by respondent company. The Regional Director subsequently ruled this ballot should be counted, and the parties appear to concede that its validity determined the one vote majority by which the union was certified.
The pertinent facts were stipulated by the parties as follows:
On these facts the Regional Director held Lois Ware's vote should be counted, stating He based his decision on prior NLRB decisions on similar circumstances. Otarion Listner Corp., 124 N.L.R.B. 880 (1959); Personal Products Corporation, 114 N.L. R.B. 959 (1955).
It appears from the stipulated facts and was conceded at appellate hearing that Lois Ware was paid by respondent, under the terms of the consent election, for the time between 3:45 and 4:01 p. m. when she stood in line and cast her disputed ballot.
Respondent, however, contends that when Lois Ware announced her intention to quit, she thereby lost employee status; hence, her eligibility to vote. Respondent contends that this occurred at least by 3:45 p. m. — the moment she laid down her work and lined up to vote. Respondent also contends that this conclusion is a matter of law governed by the National Labor Relations Act § 2(2) sic. and 9(a), and not subject to determination by the Regional Director to whom the terms of the consent election gave "final and binding" authority to determine "the eligibility of voters."
We have examined both sections of the act cited (as well as others apparently more pertinent) and perceive no standard therein which as a matter of law deprives the National Labor Relations Board of power to declare an employee eligible to vote where she was on the eligible list and worked the full day of the election. See Personal Products, supra.
Actually respondent's argument is based on a line of cases where the employee whose status was in dispute did not work on election day and was not on the payroll at the moment he voted.
In Whiting Corp. v. N. L. R. B., 200 F.2d 43 (C.A. 7 1952), the disputed vote was cast on October 18, 1950, by an elderly employee who last worked for the employer September 26, 1950. He had told many witnesses that he never intended to work again and indeed did not. On this state of facts the 7th...
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