NLRB v. Jackson Farmers, Inc.
| Decision Date | 30 September 1970 |
| Docket Number | No. 43-70.,43-70. |
| Citation | 432 F.2d 1042 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JACKSON FARMERS, INC. (Formerly Farmers Union Co-Operative Business Association), Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Janet Skaare Morris (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N.L.R.B.), for petitioner.
William G. Haynes, of Eidson, Lewis, Porter & Haynes, Topeka, Kan., for respondent.
Before JONES*, BREITENSTEIN, and HOLLOWAY, Circuit Judges.
In this proceeding to enforce an order of the National Labor Relations Board, the respondent, Jackson Farmers, Inc., refused to bargain in order to test the validity of the certification of collective bargaining units. The Board found that the Company had violated § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1). See 178 NLRB No. 56.
In various Kansas small towns the Company operates grain elevators, gasoline service stations, and a feed mill. The American Federation of Grain Millers, AFL-CIO, petitioned for representation elections in two separate units of the Company's employees. These were (1) a unit of production and maintenance employees including truck drivers and service station workers, and (2) a unit of office clerical workers. After a hearing the Regional Director issued a decision and directed an election in each unit. The Company's petition for review of the Director's action was summarily denied by the Board. The production and maintenance employees voted in favor of the Union. The outcome of the election held for the clerical employees depended on one challenged ballot, that of Imogene Kinast, the wife of a supervisor. The Director sustained the challenge with the result that this election also went for the Union. The Board summarily rejected the Company's petition for review of the Director's decision on the challenged ballot.
The Company refused to recognize the Union and to bargain with it. Subsequently, unfair labor practice charges were brought. The Company defended on the grounds of invalidity of the certification of the production and maintenance unit, the timing of the election so as to prevent voting by seasonal employees, and the ruling on the challenged ballot. The Board sustained the General Counsel's motion for a summary judgment.
The Company argues that it is entitled to a plenary review by the Board of the correctness of the Director's representation determinations before the Board can entertain an unfair labor practice charge based on those determinations. The Board says that the contention was not presented to it and accordingly cannot be considered by the reviewing court. The Company urged before the Board that it was entitled to a new hearing on the representation issues. We need not consider whether the request for a hearing was sufficient to preserve the point because we recently decided in Meyer Dairy, Inc. v. National Labor Relations Board, 10 Cir., 429 F.2d 697, that the limited review provided by 29 CFR § 102.67 applies to Board review of any delegated action of a regional director. In so holding we rejected Pepsi-Cola Buffalo Bottling Company v. National Labor Relations Board, 2 Cir., 409 F.2d 676, and followed the rule announced in National Labor Relations Board v. Magnesium Casting Company, 1 Cir., 427 F.2d 114. See also National Labor Relations Board v. Gold Spot Dairy, Inc., 10 Cir., 432 F.2d 125. The Company does not assert that it has any newly discovered or previously unavailable evidence or that it was prevented from presenting any substantial and material evidence at the representation proceedings. In our opinion the Board summary judgment disposition was proper.
The Board has a wide discretion in determining an appropriate bargaining unit and its decision will be set aside only upon a showing that it is capricious or arbitrary. See § 9(b) of the Act; National Labor Relations Board v. Dewey Portland Cement Company, 10 Cir., 336 F.2d 117, 119; and National Labor Relations Board v. Groendyke Transport, Inc., 10 Cir., 372 F.2d 137, 140. The representation decisions of a regional director, if not set aside by the Board, are entitled...
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N.L.R.B. v. Warner
...of Crescent City, Inc., 194 NLRB 616 (1971); NLRB v. Caravelle Wood Products Co., 466 F.2d 675 (7th Cir. 1972); NLRB v. Jackson Farmers, Inc., 432 F.2d 1042 (10th Cir. 1970); Cherrin Corp. v. NLRB, 349 F.2d 1001 (6th Cir. 1965). The Board has also employed the "community of interests" stand......
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Bokum Resources Corp. v. N.L.R.B.
...Cir., 429 F.2d 697, National Labor Relations Board v. Gold Spot Dairy, Inc., 10 Cir., 432 F.2d 125, and National Labor Relations Board v. Jackson Farmers, Inc., 10 Cir., 432 F.2d 1042 (cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971)). We have held that under § 3(b) the Board......
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