NLRB v. OK Van Storage, Inc., 18735.

• Decision Date: 07 December 1961
• Docket Number: No. 18735.,18735.
• Citation: 297 F.2d 74
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O.K. VAN STORAGE, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.2d 74 (1961)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. O.K. VAN STORAGE, INC., Respondent.

No. 18735.

United States Court of Appeals Fifth Circuit.

December 7, 1961.

Rosanna A. Blake, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Asso. Gen. Counsel, Stuart Rothman, General Counsel, Richard H. Frank, Attorney, National Labor Relations Board, Washington, D.C., for petitioner.

Ellis O. Mayfield, El Paso, Tex., for appellee.

Before TUTTLE, Chief Judge, and HUTCHESON and RIVES, Circuit Judges.

HUTCHESON, Circuit Judge.

This is a proceeding to enforce an order of the National Labor Relations Board. The questions presented arise out of a representation election conducted by the Board's Regional Director among the employees, in an appropriate bargaining unit, of O.K. Van Storage, Inc., the respondent herein, on July 19, 1958. After the election, Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local Union No. 941, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as `the Union') was certified by the Board as the bargaining representative of O.K.'s employees in the unit. Respondent subsequently refused to bargain with the Union. The Board ultimately decided that such refusal amounted to an unfair labor practice under Section 8(a) (5) of the Act, 29 U.S.C.A. § 158(a) (5), and ordered respondent to cease and desist, to bargain collectively upon request, and to post the usual notices. The Board's petition for enforcement of its order followed.

Prior to the representation election it was known by respondent and the Board that certain employees who were members of the unit would be required by reason of the fact that they were interstate truck drivers to be absent from El Paso, Texas, the place at which the election was to be held, on the date of the election. Among these employees were Henry Hernandez, Senior, and Henry Hernandez, Junior. In order that these two employees, about whom this controversy centers, could vote in the representation election to be held on July 19, 1958, they were directed to and did report on July 14, 1958 to the Board's Sub-Regional office in El Paso; there each was given a ballot and return envelope. Two days later, both left on a trip by truck to Washington, D.C. Their ballots were mailed by them near Selma, Alabama, at 2:00 P.M. on July 18, 1958, and were not received by the Board in time to be counted in the election. Out of twenty-one eligible voters, ten cast their votes for the Union, eight against the Union, and one challenged vote was not counted.

Respondent filed timely objections to the conduct of the election, alleging in effect, inter alia, that O.K. had been given to believe by the Board's Field Examiner that the Hernandez would be allowed to vote in person at the Board's Sub-Regional office, but that instead they were merely given ballots and return envelopes, without instructions as to the time by which the ballots had to be returned in order to be counted. Accompanying respondent's objections was the unsworn statement of its treasurer, reciting that both Hernandez had told him in Alexandria, Virginia, on July 21, 1958, that a woman at the Sub-Regional office:

"* * * handed the envelopes to us and told us to take them with us and that there was a sheet of instructions inside, the ballot and an envelope to return them in. She told me to read the instructions, mark the ballot and return them to the local office by mail. We then left the NLRB office and went home where we opened the envelopes. * * * I immediately read the instructions sic sheet thoroughly and understood it and marked my ballot. * * * The instruction sheet did not say where the voters sic were to be returned to or that they had to be mailed or received anywhere by any certain date or time."

The Board's Regional Director, after considering and investigating the objections presented, concluded that none of them raised material or substantial issues with respect to conduct affecting the election, and recommended that the objections be overruled. Respondent excepted to the Regional Director's report, and the Board reviewed the objections, the report and the exceptions thereto, overruled the objections and certified the Union as collective bargaining representative of the employees in the appropriate unit.

The gist of respondent's specifications of error before this court is that the Board failed to instruct the Hernandez as to the date by which their ballots must have been received in order to be counted, that such failure denied them the opportunity to vote, that its allegations to that effect in its objections to the election raised substantial issues of fact...