NLRB v. Hood Corporation, 19723.
| Decision Date | 24 May 1965 |
| Docket Number | No. 19723.,19723. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOOD CORPORATION and Contractors' Equipment Supply Company, dba Cesco, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Elliott C. Lichtman, Sol Hirsh, Attys., N.L.R.B., Washington, D. C., for petitioner.
Eli A. Weston, Weston & Weston, Boise, Idaho, for respondent.
Before HAMLIN, BROWNING and DUNIWAY, Circuit Judges.
Respondent, Hood Corporation, et al., (hereinafter referred to as Company), is engaged in the business of constructing gas pipelines in Idaho, Montana, and North Dakota. On March 22, 1963, the International Union of Operating Engineers, Local 370, AFL-CIO (hereinafter referred to as the Union) and the Respondent entered into a Consent Election Agreement in the usual form. The agreement was approved by the Regional Director of the National Labor Relations Board on March 27, 1963, and provided in pertinent part:
"Said election shall be held in accordance with the National Labor Relations Act, the Board\'s Rules and Regulations, and the applicable 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 any party hereto relating in any manner to the election * * *."
Pursuant to this agreement an election was held during the beginning of April of 1963 in which six ballots were cast for and five against the Union, with four ballots being challenged by the Union. Thereupon, the Regional Director conducted an investigation to determine whether the individuals who cast the challenged ballots were eligible to vote. On May 1, the Regional Director overruled two challenges and directed that these ballots be opened and counted. However, the Regional Director sustained the remaining two challenges, producing a revised tally of seven votes for the Union and six votes against. On May 7, the Regional Director certified the Union as the exclusive bargaining representative of the employees in the unit. Thereafter, the Respondent forwarded exceptions to the Regional Director's rulings on the challenged ballots to the National Labor Relations Board. On May 20, 1963, the Board ruled that in view of the agreement to leave all matters to the final determination of the Regional Director, the Board would refuse to entertain an appeal from the Regional Director's action and would not consider the exceptions. Subsequently, when Respondent refused to bargain with the Union, and after charges were filed by the Union, a complaint was issued by the General Counsel of the National Labor Relations Board alleging that Respondent's refusal to bargain with the Union constituted a violation of §§ 8(a) (1) and (5) of the National Labor Relations Act, as amended 29 U.S.C. § 151, et seq. The matter came on for hearing before the Trial Examiner on October 11, 1963. At the hearing, counsel for Respondent offered to prove the allegation contained in his answer to the complaint that prior to the balloting an oral accord or agreement was reached between the Respondent and the Union, with the approval of the field representative of the Regional Director, that all fifteen employees in the bargaining unit would be permitted to vote without challenge. The Trial Examiner rejected Respondent's offer of proof and found that the Respondent was guilty of the violations alleged in the complaint. On review, the Board affirmed the rulings of the Trial Examiner and ordered Respondent to cease and desist from the unfair labor practices found, to bargain with the Union upon request, and to post the appropriate notices.
The case is presently before this court upon petition of the National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., for enforcement of its order issued against Respondent on June 4, 1964.
The sole issue before this court is what effect, if any, should be given the pre-election agreement or accord in which the Respondent and the Union allegedly agreed not to challenge any voters whose names were on the eligibility lists.
Respondent contends that the oral accord or agreement precluded the consideration by the Regional Director...
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