NLRB v. Joclin Manufacturing Company

• Decision Date: 30 January 1963
• Docket Number: Docket 27675.,No. 154,154
• Citation: 314 F.2d 627
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The JOCLIN MANUFACTURING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

314 F.2d 627 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The JOCLIN MANUFACTURING COMPANY, Respondent.

No. 154, Docket 27675.

United States Court of Appeals Second Circuit.

Argued December 5, 1962.

Decided January 30, 1963.

Rehearing Denied March 1, 1963.

COPYRIGHT MATERIAL OMITTED

Warren M. Davison, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison and Peter M. Giesey, Washington, D. C., Attys., on brief), for petitioner.

Robert B. Snow, Jr., Wiggin & Dana, New Haven, Conn., for respondent.

Before LUMBARD, Chief Judge, and SWAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

The National Labor Relations Board seeks enforcement of an order, 137 NL RB No. 23, determining that respondent Joclin Manufacturing Company, which is engaged in the manufacture and interstate sale of plastics and related products at Wallingford, Conn., violated § 8(a) (1) and (5) of the National Labor Relations Act by refusing to bargain with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, hereafter the Union, which had been certified after a consent election as the bargaining representative of a unit of Joclin's employees. The sole issue is the validity of the certification. Finding material error in the Board's disposition of challenges to certain ballots, we deny enforcement, vacate the order, and remand for further appropriate proceedings.

Most of the facts were stipulated. On June 12, 1961, the Union filed a representation petition seeking designation as the bargaining representative of Joclin's production and maintenance employees. Soon thereafter Joclin and the Union executed a "Stipulation for Certification upon Consent Election", later approved by the Board's Regional Director. It defined as eligible voters "those employees included within the Unit described below, who were employed during the payroll period indicated below, including employees who did not work during said payroll period because they were ill or on vacation or temporarily laid off * * *, but excluding any employees who have since quit or been discharged for cause * * *," and provided that "At a date fixed by the Regional Director, the parties, as requested, will furnish to the Regional Director an accurate list of all the eligible voters, together with a list of the employees, if any, specifically excluded from eligibility." The election was fixed for July 7, 1961, with the week ending June 16, 1961, as the "Payroll Period for Eligibility". The appropriate collective bargaining unit was described as "All production and maintenance employees, excluding office, clerical and professional employees, guards and supervisors as defined in the Act."

The tally of ballots cast in the election showed 17 undisputed votes for the Union, 14 against, and 9 challenged. Since the challenged ballots were sufficient to affect the result, the Regional Director proceeded to conduct an investigation, obtaining information about the nine challenged voters from the Company and from the voters themselves. Joclin took the position that the votes of seven employees — D'Amico, Bianco, DeTour, Rosania, Cella, Stupski, and Ursini — should be counted, and that those of two — Rollins and Palukis — should not. The Union claimed that the seven should not be counted; the challenges to Rollins and Palukis were made by the Board Agent on the ground that their names were not on the list submitted by the parties. The Regional Director filed a report recommending that the challenges to the ballots of D'Amico, Bianco and DeTour, and also to those of Rollins and Palukis, be overruled, but that the challenges to the ballots of Rosania, Cella, Stupski and Ursini be sustained. Joclin excepted to the latter recommendation and also to the overruling of the challenges with respect to Rollins and Palukis; the Union did not except to the overruling of its challenges with respect to D'Amico, Bianco and DeTour, and the validity of these three votes was thus no longer contested. As to the six ballots that remained in issue the Board, on October 17, adopted the Regional Director's recommendations, finding "that the Employer's exceptions do not raise material and substantial issues". The revised tally showed 19 votes for the Union and 17 against; this total, of course, included the questioned votes of Rollins and Palukis and did not include those of Rosania, Cella, Stupski and Ursini. On October 30 the Regional Director certified the Union. Taking the position that the certificate was invalid, Joclin refused to bargain. Charge by the Union, complaint by the General Counsel, hearing, Intermediate Report upholding the complaint, exceptions by the Company, affirmance by the Board, and petition for enforcement followed in due course.

Although § 9(c) provides that upon the filing of a representation petition, as therein described, "the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice", the statute does not in terms require a hearing with respect to the results of an election; it says simply, "If the Board finds * * * that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof." Normally there cannot be judicial review either of the decision to hold an election or of the certification of its results. American Federation of Labor v. N. L. R. B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940); but cf. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). On the other hand, it is plain that when the Board has faulted an employer for refusing to bargain with a certified union, a reviewing court must consider not only claims of error of law and fact in the pre-election determination as provided in § 9(d), but other claimed errors of law underlying the certification, such as errors in the disposition of challenges to election ballots. See Administrative Procedure Act, 5 U.S.C. § 1009(e); Pittsburgh Plate Glass Co., v. N. L. R. B., 313 U.S. 146, 154, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); N. L. R. B. v. Moyer & Pratt, Inc., 208 F.2d 624 (2 Cir., 1953); N. L. R. B. v. Glen Raven Knitting Mills, 235 F.2d 413 (4 Cir., 1956). It is not so clear what should be done in regard to disputed issues of fact concerning challenged ballots — issues as to which, in the absence of a hearing at some stage after the election, there will be no formal record for the court to review.

In N. L. R. B. v. Sidran, 181 F.2d 671, 673 (5 Cir., 1950), the Board accepted a Regional Director's election report which determined disputed issues of voter eligibility on the basis of an ex parte investigation, without giving the employer any "opportunity to be heard, to examine and cross-examine witnesses, or to produce any evidence in his own behalf which might have tended to impeach or contradict the facts found by the Regional Director as to the status of these challenged employees." The court held that such action deprived the employer of his constitutional right to a fair hearing, and invalidated the Board's finding that he had committed an unfair labor practice in refusing to bargain with the certified union. We are not required to consider whether something short of a complete "trial-type" hearing with respect to the certification might not fill the bill. See 1 Davis, Administrative Law Treatise, §§ 7.01-7.05 (1958). For the Board's Regulations now provide that "the Board may direct" such a hearing on exceptions to the Regional Director's report on challenged ballots "if it appears to the Board that such exceptions raise substantial and material factual issues." Reg. § 102.69 (e); see also § 102.69(c) and (d).¹ The Board properly has not contended either that the Regulations' use of the phrase "appears to the Board" makes its determination conclusive, see United States v. Laughlin, 249 U.S. 440, 39 S.Ct. 340, 63 L.Ed. 696 (1919),² or that their use of the verb "may" gives it an unfettered discretion to grant or deny a hearing, see Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 123, 46 S.Ct. 215, 70 L.Ed. 494 (1925); N. L. R. B. v. O. K. Van Storage, Inc., 297 F.2d 74, 76 (5 Cir., 1961). In consequence a court cannot properly enforce an order finding an employer guilty of an unwarranted refusal to bargain with a union certified in an election if it appears, with respect to challenges affecting the result, either that they were disposed of erroneously as a matter of law or that the employer raised "substantial and material factual issues" under the Regulations and was denied a hearing that he seasonably requested. Although we in no way criticize the Board's thus conditioning the right to a hearing on a showing that factual issues are "substantial and material" — a requirement not only proper but necessary to prevent dilatory tactics by employers or unions disappointed in the election returns — Joclin's showing as to this close election met that test.

With respect to Ursini, the Regional Director did not dispute the employer's version of the facts, namely, that Ursini had been hired with the understanding that he would spend 80% of his time in production work and 20% in maintaining company cars; that his production work was the same as that performed by other production employees; that he was the only employee doing car maintenance work; that, owing to an unexpectedly heavy amount of major repair work, he had spent 1201.6 hours on car maintenance and only 280.4 hours on production since September 1960; and that the car maintenance was done at a site where Ursini was the sole employee, in a town other than that where Joclin's plant is located.³ The Regional Director excluded Ursini on the ground that he "is not primarily engaged in, and does not spend more than 50%...