NLRB v. Parkhurst Manufacturing Company

• Decision Date: 16 May 1963
• Docket Number: No. 17095.,17095.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PARKHURST MANUFACTURING COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

317 F.2d 513 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PARKHURST MANUFACTURING COMPANY, Inc., Respondent.

No. 17095.

United States Court of Appeals Eighth Circuit.

May 16, 1963.

Gary Green, Atty., N. L. R. B., made argument for petitioner and Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., and Robert A. Armstrong, Attys. for N. L. R. B., were on the brief.

John K. Pickens, Washington, D. C., made argument for respondent and William T. Stephens, Washington, D. C., was with him on the brief.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

The National Labor Relations Board seeks enforcement here of its unanimous full-board order against Parkhurst Manufacturing Company, Inc. It found, 136 NLRB No. 81, that Parkhurst had violated § 8(a) (1), (3), and (5) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a) (1), (3), and (5).

Parkhurst does not here contest the Board's findings as to independent violations of § 8(a) (1) and (3). It confines its attack upon the claimed violation of § 8(a) (5), and consequently of § 8(a) (1), consisting of Parkhurst's refusal to bargain collectively with General Drivers, Warehousemen & Helpers Local Union 534, a Teamsters affiliate which had been certified on May 22, 1961. Our review is restricted to this aspect.

Parkhurst is engaged in the manufacture and sale of small trailers and truck bodies. It has a maintenance plant at Sedalia, Missouri, and a farm plant five miles west of that city on a farm where its president, W. R. Parkhurst, resides.

Parkhurst and the union executed a consent election agreement in March 1961. An election by secret ballot, as the agreement specified, was held in April. The Regional Director's tally showed 14 ballots for the union, 12 ballots against, and 4 challenged ballots. The number challenged was thus sufficient to affect the results of the election.

The Regional Director made an investigation and issued a Report and Determination. The four ballots questioned were those of Harold Williams, whom the union claimed to be an "office worker"; Byron Oswald, challenged as a supervisor; H. E. Logan, challenged as a salesman; and Larry Mahnken, challenged as laid off. The Director in his report found (a) that Williams was a supervisor within the meaning of the Act; (b) that Oswald "is not a regular production and maintenance employee" but "is principally employed to oversee and supervise the farm operations", and "is more nearly identified with management"; and (c) that Logan was a parts salesman for Mr. Parkhurst's retail farm implement dealership, was not employed by the respondent, performed no work for it, and had little contact with its production and maintenance operation. The challenges to these three were therefore sustained. The Director found it unnecessary to pass upon the challenge to Mahnken. The union was then certified.

Parkhurst promptly sent the Regional Director a telegraphic request for reconsideration and hearing. It set forth therein what it proposed to prove at the hearing.¹ This was denied on June 14 and the union's certification was reaffirmed. The Director in so acting stated that "the Employer's exceptions do not present substantial additional facts not previously considered or that would warrant changing the previous determination." Parkhurst attempted to appeal to the Board. Its Associate Executive Secretary, however, advised Parkhurst that it was the Board's policy not to interfere with the Director's action in a case involving an agreement for consent election, that the Board refused to entertain an appeal in such a situation "absent arbitrary or capricious conduct" and that, in "the absence of a clear or even close showing of arbitrariness", his office "has been authorized by the Board not to entertain an appeal".

Subsequent to its certification, the union asked Parkhurst to enter into bargaining negotiations with it. Parkhurst refused so to do. On July 26 it advised the union that the matter was pending before the Board and that "It would, therefore, be premature to meet at this time".

Meanwhile, on June 2 an unfair labor practices complaint was filed against Parkhurst. As later amended, this charged violations of § 8(a) (1), (3), (4), and (5) of the Act. A hearing was held on July 26 and 27. At this hearing the examiner refused to receive testimony directed to the status of each of the four persons whose ballots had been challenged and to alleged arbitrary and capricious conduct of the Regional Director. Offers of proof were made. The hearing resulted in the order now before us.

Parkhurst argues here (a) that the union certification was invalid and as a consequence there was no § 8(a) (5) violation; (b) that it was invalid because the Director's determination was arbitrary and capricious; and (c) that inquiry, by a proper hearing, into a charge of arbitrary conduct is a matter of right.

The case pivots on the agreement for consent election. This agreement was executed by the union and by Parkhurst (by its president), was recommended by the field examiner, and was approved by the Regional Director. It specified that the appropriate bargaining unit was "All production and maintenance employees, excluding office clerical employees, guards, professional and supervisory employees as defined in the Act". It contained provisions as to the furnishing of lists of eligible voters and of employees excluded from eligibility, as to election observers, as to the rules governing the election,² as to objections and challenges, and as to the investigation of objections and challenges.³

1. The effect of the consent election agreement. The agreement is certainly definite and specific. It defines the bargaining unit. It provides that the Regional Director's determination "upon any question, including questions as to the eligibility of voters", raised by any party "relating in any manner to the election" shall be "final and binding". It provides that upon the filing of objections when challenges are determinative of the result, the Director "shall investigate * * * and issue a report thereon". And it provides that the "method of investigation * * * including the question whether a hearing should be held in connection therewith shall be determined by the Director whose decision shall be final and binding".

This is positive language directed toward a limitation of review. It presents little or no opportunity for difference of opinion as to its meaning. Indeed, there is no real dispute here as to its significance. This court's comments in Semi-Steel Casting Co. v. N. L. R. B., 8 Cir., 1947, 160 F.2d 388, 391, cert. denied 332 U.S. 758, 68 S.Ct. 57, 92 L.Ed. 344, a not dissimilar case involving a consent election agreement, are pertinent here:

"On the issue raised concerning the rejected ballots, the terms of the consent election agreement may not be ignored. The agreement is in the form customarily used by the Board. Its purpose is to guard against disputes concerning the conduct of elections, to provide for the prompt and final settlement of such controversies as may arise between the parties, and thus to minimize delay in the administration of the Act. * * * On review the Board accepts the Re gional Director\'s decision on all questions pertaining to the election, unless shown to be arbitrary or capricious or not in conformity with the policies of the Board and the requirements of the Act. No reason appears why the company should not be bound by the provisions of the election agreement to which it is a party. `To hold otherwise would permit an employer deliberately to ignore binding commitments embodied in a consent agreement; would open the door to subterfuges for hampering and delaying a final determination of a bargaining representative; and would tend to defeat, rather than to effectuate, the policies of the Act.\' Matter of Capitol Greyhound Lines, 49 N.L.R.B. 156, 159, enforced Sixth Circuit, 140 F.2d 754, 758, certiorari denied 322 U.S. 763, 64 S.Ct. 1285, 88 L.Ed. 1590."

To the same effect are National Labor Relations Board v. J. W. Rex Co., 3 Cir., 1957, 243 F.2d 356, 358; National Labor Relations Board v. Carlton Wood Prod. Co., 9 Cir., 1953, 201 F.2d 863, 866, 36 A.L.R.2d 1170; National Labor Relations Board v. General Armature & Mfg. Co., 3 Cir., 1951, 192 F.2d 316, 317, footnote 1, cert. denied 343 U.S. 957, 72 S.Ct. 1052, 96 L.Ed. 1357; National Labor Relations Board v. Sumner Sand & Gravel Co., 9 Cir., 1961, 293 F.2d 754, 755; Elm City Broadcasting Co. v. N. L. R. B., 2 Cir., 1955, 228 F.2d 483, 485; National Labor Relations Board v. Saxe-Glassman Shoe Corp., 1 Cir., 1953, 201 F.2d 238, 240-241. See National Labor Relations Board v. Volney Felt Mills, Inc., 6 Cir., 1954, 210 F.2d 559. Thus the execution of the consent election agreement by the union and respondent is binding upon Parkhurst and the Regional Director's determination pursuant to that agreement is conclusive unless he acts arbitrarily or capriciously or out of line with Board policy or the Act's requirements.

2. The lack of a hearing. As we have noted, the signed agreement provided that "the question whether a hearing should be held" was to be determined by the Regional Director and his decision was to be final. This contractual provision has been present in other litigated cases. It consistently has been held to constitute an appropriate waiver of any right to a formal hearing. Thus the Director's mere failure to grant a hearing with respect to the challenges here does not of itself equate with arbitrary or capricious action or inaction. National Labor Relations Board v. J. W. Rex Co., supra, pp. 358-359 of 243 F.2d; National Labor Relations Board v. Carlton Wood Prod. Co., supra, p. 866 of 201 F.2d; National Labor Relations Board v. Volney Felt Mills, Inc., supra, p. 560 of 210 F.2d; National...