NLRB v. Olson Bodies, Inc., 51

• Citation: 420 F.2d 1187
• Decision Date: 06 January 1970
• Docket Number: No. 51,Docket 33048.,51
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervenor, v. OLSON BODIES, INC., Formerly Grumman Allied Industries, Inc., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

420 F.2d 1187 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervenor, v. OLSON BODIES, INC., Formerly Grumman Allied Industries, Inc., Respondent.

No. 51, Docket 33048.

United States Court of Appeals Second Circuit.

Argued October 3, 1969.

Decided January 6, 1970.

Leonard M. Wagman, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herbert Fishgold, Atty., N. L. R. B., of counsel), for petitioner.

Benjamin Rubenstein, New York City, for intervenor.

William L. Dennis, New York City (Cahill, Gordon, Sonnett, Reindel & Ohl, and Henry G. Bisgaier, Jack L. Fox, Laurence T. Sorkin, Samuel M. Symonds, New York City, of counsel), for respondent.

Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

In September 1966, the UAW filed a petition for a Board conducted election at respondent's Athens, N. Y. truck body plant. Respondent opposed this on the ground, no longer pressed, that the unit should include two plants in Michigan and Texas. The unit certified was

All production and maintenance employees employed at the Employer\'s Athens, New York, truck manufacturing plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act.

The Board denied a request for review, and an election was held on February 17, 1967.

The vote was exceedingly close. Two hundred and twenty votes were cast, with one hundred ten ballots in favor of the UAW and one hundred nine against. The remaining ballot, cast by William Davenport, was challenged by the Board agent on the ground that Davenport's name did not appear on the eligibility list. Respondent protested to the Regional Director, claiming that Davenport was a plant clerical and, therefore, his ballot should not have been excluded. Respondent also objected to the Regional Director's failure to comply with its request on February 15 that absentee balloting or home voting in the presence of a Board, employer and union representative should be allowed for 15 eligible employees who were out because of illness. (Apparently, however, 11 of the 15 did come to the polls and vote.) Respondent's final objection was based on alleged union misconduct.

The Regional Director took affidavits from Davenport and Loar, a Vice President of respondent, concerning the former's duties. Respondent was allowed to examine these and to submit four other affidavits as well as additional ones from Davenport and Loar. The Regional Director issued a supplemental decision and certification, wherein he sustained the challenge to Davenport as not being a production or maintenance employee in the truck manufacturing plant, overruled the other objections, and certified the union. Respondent sought review by the Board, pursuant to §§ 102.67(c) and 102.69(c) of its Rules and Regulations, with respect to the sustaining of the challenge and the overruling of the objection concerning the ill employees. The facts about Davenport were set out in great detail, and apparently the affidavits were annexed.

On May 23, 1967, the Board denied the request as raising "no substantial issues warranting review." When respondent thereafter declined to bargain with the union, the General Counsel filed a complaint and moved for summary judgment. Opposing this, respondent sought a hearing on Davenport's status, reiterated its point concerning the ill employees, and repeated its initial objections with respect to the bargaining unit. The Trial Examiner recommended the grant of summary judgment; the Board sustained this and entered the bargaining order which it here seeks to enforce.

We deal first with respondent's objection on the score of the Board's failure to arrange for absentee or home voting by the four ill employees. In its brief, the Board properly recognizes its concern that all employees eligible to vote should have a fair opportunity to do so. The conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse. See, e. g., NLRB v. A. J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946). The company had made no request for absentee or home voting by the ill employees until two days before the election, although its telegram recited that many of them had been ill for at least a month and some for over six months. We cannot say that the Regional Director's refusal to supplement the usual manual ballot procedures in this election in a small up-state New York town was such a violation of the rights of the employees as to render judicial intervention appropriate. See International Tel. & Tel. Corp., Industrial Products Division v. NLRB, 294 F.2d 393 (9 Cir.1961); see also note 1 infra.

No useful purpose would be served by detailed recital of the extensive evidence concerning Davenport. Employed in 1950 as a production employee, he was transferred in 1962 to the shop's production control department where he worked with two other men, Biesel and Peters, who were classified as plant clericals after the representation hearing before the Regional Director. In 1964 he was moved to the office occupied by engineers and draftsmen who, it is agreed, are not in the bargaining unit. His principal function has been to make up bills of materials from information available in the engineering office. He is under the immediate supervision of Turner, an engineer, whereas Biesel and Peters are supervised by Simmons, who is also Turner's supervisor. The Regional Director permissibly found that "his duties appear to be mainly in support of the engineering department personnel," that his contacts with the production shop are through foremen, and that when he is on vacation, this part of his job is taken over by engineers or draftsmen. Some other bits and pieces of evidence pointed in one way, some in another.

We find particularly significant the position earlier taken by the company in the representation hearing. When the hearing officer asked who it contended were the production plant clericals, responde...