NLRB v. JR Simplot Company
| Decision Date | 20 August 1963 |
| Docket Number | No. 18243.,18243. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. R. SIMPLOT COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Melvin H. Reifin and James C. Parras, Attys., National Labor Relations Board, Washington, D. C., for petitioner.
Petersen, Moss & Olsen, and Dennis M. Olsen, Idaho Falls, Idaho and L. E. Haight, Boise, Idaho, for respondent.
Before POPE, HAMLEY and MERRILL, Circuit Judges.
NLRB here petitions for enforcement of an order issued against respondent August 17, 1962, as reported in 138 NLRB, No. 20, based upon its determination that respondent had violated § 8(a) (5) and (1) of the National Labor Relations Act, by refusing to bargain collectively with its employees' representative, The American Federation of Grain Millers, AFL-CIO, hereinafter called the "Union."
Respondent contends that the Union is without right to represent its employees, and justifies its refusal to deal with the Union upon this ground.
An election pursuant to § 9(c) (1) of the Act was held March 9, 1961, under Board direction. The Union lost the election and thereafter filed four objections with reference to which the Board in its order states:
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An investigation by the Regional Director followed, and a report was filed by him recommending that the election be set aside.
Exceptions to this report were filed by respondent. The Board, without ordering a hearing on respondent's exceptions, on August 16, 1961, adopted the recommendations of the Regional Director and set the election aside.
In a second election, held October 19, 1961, the Union won a majority of the votes cast and was certified as bargaining representative. Thereafter it requested respondent to meet with it and negotiate an agreement. Respondent declined and has since refused to recognize the Union.
Unfair labor practice charges were thereupon filed against respondent, resulting in the order which the Board here seeks to enforce.
The position of respondent (both here and before the Board) is that the Board acted arbitrarily and capriciously in setting aside the first election without granting respondent a hearing on its exceptions to the report of the Regional Director. Accordingly, respondent contends, the second election was held in violation of § 9(c) (3) of the Act, which provides that:
"No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held."
The principal question upon this review is whether failure of the Board to grant a hearing upon respondent's exceptions constituted abuse of discretion. The appropriate Regulation, 29 C.F.R. § 102.69(d) (Supp.1959) provides:
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