NLRB v. Singleton Packing Corp.

• Decision Date: 13 October 1969
• Docket Number: No. 26784.,26784.
• Citation: 418 F.2d 275
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SINGLETON PACKING CORP., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

418 F.2d 275 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SINGLETON PACKING CORP., Respondent.

No. 26784.

United States Court of Appeals Fifth Circuit.

October 13, 1969.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Allison W. Brown, Jr., Richard S. Rodin, Lynn D. Poole, Attys., N.L.R.B., Washington, D. C., Harold A. Boire, Director, Region 12, N.L.R.B., Tampa, Fla., for petitioner.

John C. Bierley, J. Danforth Browne, of Macfarlane, Ferguson Allison & Kelly, Tampa, Fla., for respondent.

Before WISDOM and CARSWELL, Circuit Judges, and ROBERTS, District Judge.

WISDOM, Circuit Judge:

In Excelsior Underwear, Inc., 156 N.L. R.B. No. 111 (1966) the National Labor Relations Board held that an employer may be required to submit to a Regional Director the names and addresses of employees eligible to vote in a representation election; the Director makes the list available to the parties involved in the election. Singleton Packing Corporation's opposition to the Excelsior rule and the Company's determination to subject the rule to judicial review generated this case now before the Court. Unfortunately for Singleton, by the time the litigation reached the stage of judicial review both this Court and the United States Supreme Court had approved the rule. Howell Refining Co. v. NLRB, 5 Cir. 1968, 400 F.2d 213, 215-216; NLRB v. Wyman-Gordon Co., 1969, 394 U.S. 759, 89 S.Ct. 1426, 22 L. Ed.2d 709. As a result of Singleton's having made the wrong guess and having pursued a course of action based on that guess, only the remnants of the case remain.

I.

April 4, 1966, the Union¹ petitioned for an election in a stipulated unit of production and maintenance employees in Singleton's seafood processing plant in Tampa, Florida. The Regional Director of the National Labor Relations Board directed the Company to furnish a list of the names and addresses of all eligible voters in accordance with the Board's then recent decision in Excelsior Underwear. Singleton conditioned its compliance with the order upon assurance from the Board that the list would be "used for the union's legitimate purposes only during the current organizational campaign" and a promise of indemnification "against loss arising out of this publication of said list". The Regional Director refused to make such assurances.

May 9, 1966, the Regional Director conducted an election which the Union lost by a vote of 237 to 180 (there were 30 challenged ballots). The Union filed timely objections on two grounds: Singleton's refusal to furnish the Excelsior list, and pre-election misconduct by Singleton that interfered with the employees' free choice. After making an investigation, the Director sustained the Union's charges and recommended to the Board that the election be set aside. On August 24 the Board set aside the election on the first ground and declined to reach the second.

Then, the cycle recommenced. Still no court had ruled on Excelsior's validity at the time of the Board's order. Apparently hoping to force the Board to subpoena the list of employees and thus subject Excelsior to judicial review, Singleton refused to cooperate "in any way whatsoever in conducting a second election". It refused to allow the balloting to be conducted on its premises, refused to comply with the Excelsior order, refused to participate in a pre-election conference, refused to designate election observers, and refused to permit individual notices of the election to be delivered to its employees at the plant. Indeed, the Company strenuously urged its employees to boycott the election. To no one's surprise, therefore, few employees voted in the election on October 13 and those who did voted for the Union. The Union won the election by a vote of 136 to one; there were 14 challenged ballots and one void ballot.

It was now Singleton's turn to object. Singleton contended that the election should be set aside for the following reasons:

(1) The first election was improperly set aside since the Company was not required to comply with the allegedly invalid Excelsior rule.

(2) An insufficient number of employees voted in the second election to consider the vote a representative sample of all the employees in the unit.

(3) The Union engaged in pre-election coercion and threats of physical violence and job loss for the employees.

(4) Certain ineligible employees voted in the election.

(5) The election was held in an unsuitable place, where a union rally had been held the night before the election.

(6) The Board should not have held a second election but, instead, should have sought an injunction in a Federal District Court to compel the Company\'s production of the Excelsior list.

(7) The totality of conduct and events set forth above effectively interfered with the fair and proper conduct of the election.

The Regional Director conducted an investigation of these issues and allowed the parties to submit written evidence, but refused to conduct a hearing. He ruled against Singleton on all objections. On February 24, 1967, the Board adopted the Regional Director's report and certified the Union as the bargaining representative of Singleton's employees.

February 28, 1967, the Union requested Singleton to bargain. When Singleton refused, the Union filed an unfair labor practice charge, alleging that the refusal violated § 8(a) (5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (5) and (1) (1964). In answer to the Regional Director's complaint of March 31, 1967, Singleton admitted its refusal to bargain but contended that the Union had been improperly certified. The Trial Examiner at the unfair labor practice proceeding granted General Counsel's motion for summary judgment, and on August 31, 1967, the Board affirmed the decision, finding that Singleton had violated the Act as charged. The Board now seeks enforcement of its order against Singleton in accordance with § 10(e) of the Act, 29 U.S.C. § 160(e) (1964).

Three issues are presented. (1) Was Singleton bound to observe the Excelsior rule? (2) Was the second election representative? (3) Should the Board have accorded Singleton a hearing on its objections to the second election or in the unfair labor practice proceeding?

II.

Howell Refining Co., and Wyman-Gordon effectively repel Singleton's attack on the Excelsior rule. In Howell, we held the Excelsior rule to be "a valid exercise of the Board's power to ensure employees a fair and free choice in the selection of their representative". 400 F.2d at 216. See also Groendyke Transport, Inc. v. Davis, 5 Cir. 1969, 406 F.2d 1158, 1164. In Wyman-Gordon, the four-Justice plurality opinion of the Supreme Court and two dissenting Justices found fault with the Board's promulgation of the Excelsior rule. Three other concurring Justices who had found it substantively and procedurally valid joined the plurality in enforcing the rule because the Board had issued a specific order to the employer to submit an Excelsior list. Singleton finds itself in the identical situation. The Board correctly set aside the first election for Singleton's refusal to deliver an Excelsior list.

III.

Singleton contends next that the second election conducted by the Board was so ill-attended that its result must be set aside as unrepresentative of the employees. Singleton points out that the first election enjoyed a ninety percent turnout: 447 of 503 eligible voters participated. At the second election, however, only twenty-seven percent (101 of 506 eligible) voted.

In his Report on Objections to the Second Election (later adopted by the Board), the Regional Director found that the second election had been well publicized for the benefit of all the employees and that they had an adequate opportunity to participate in the balloting if they had wanted to do so. He attributed the small turnout to the Company's statements to its employees to boycott the second election. On September 30 and again on October 7, the Company had issued notices to its employees urging them to "stay away from the election".

We must agree with the Regional Director and the Board. In dealing with a section of the Railway Labor Act, 45 U.S.C. § 152 (1964) that provided for majority determination of representatives, the Supreme Court has said:

It is to be noted that the words of the section confer the right of determination upon a majority of those eligible to vote, but is silent as to the manner in which that right shall be exercised. Election laws providing for approval of a proposal by a specified majority of an electorate have been generally construed as requiring only the consent of the specified majority of those participating in the election. * * * Those who do not participate "are presumed to assent to the expressed will of the majority of those voting."

We see no reason for supposing that this section (* * *) was intended to adopt a different rule. If, in addition to participation by a majority of a craft, a vote of the majority of those eligible is necessary for a choice, an indifferent minority could prevent the resolution of a contest, and thwart the purpose of the Act, which is dependent for its operation upon the selection of representatives. There is the added danger that the absence of eligible voters may be due less to their indifference than to coercion by the employer.

Virginian Railway Co. v. System Federation No. 40, 1937, 300 U.S. 515, 560, 57 S.Ct. 592, 605, 81 L.Ed. 789, 806-807 (citations omitted). In applying the principle of Virginian Railway to the National Labor Relations Act, this Court has pointed out that like the Railway Labor Act, § 9 does not expressly provide what sort of majority shall control the result of an election. We concluded, however, that "the general rule, in the absence of a clear provision otherwise, is that voters who could have voted in a formal election but do not are...