NLRB v. WS Hatch Co., Inc.
| Decision Date | 01 February 1973 |
| Docket Number | No. 71-2930.,71-2930. |
| Citation | 474 F.2d 558 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W. S. HATCH CO., INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Giannasi, Atty. (argued), Eugene B. Granof, Jan Weinberg, Attys., Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, NLRB, Washington, D. C., Roy O. Hoffman, Director, NLRB, San Francisco, Cal., for petitioner.
Samuel L. Holmes (argued), of Angel, Adams & Holmes, San Francisco, Cal., for respondent.
Kenneth Silbert, of Brundage, Neyhart, Grodin & Beeson, San Francisco, Cal., for charging party.
Before JERTBERG, DUNIWAY and TRASK, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order, 190 NLRB No. 122, requiring the W. S. Hatch Company (the Company) to bargain with the Union upon request, as required by section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). We enforce.
On July 6, 1970, the Union petitioned for an election among the employees at the Company's Pittsburg, California plant. On July 23, the parties waived the representation hearing provided for by the Act, section 9, 29 U.S.C. § 159, and executed a Stipulation for Certification Upon Consent Election to be held at the Company's plant on August 10. Because of the nature of the Company's business — hauling — it could not estimate the number of employees who would be available to vote on August 10. The Acting Regional Director requested that the election be conducted by mail ballot. Not being compelled to agree, the Company refused, but gave its assurance that efforts would be made to have all employees available at the plant during the voting time. The Acting Regional Director approved the stipulation, and the election proceeded as scheduled. However, of the thirteen employees in the bargaining unit, only seven could vote on August 10, and only six voted. One employee had been transferred out of state and five others were away on work assignments. After the voting, the agents of the Acting Regional Director impounded the six ballots cast without counting them. On August 19, being unable to obtain the Company's consent to amend the stipulation to permit the remaining employees to vote by mail ballot, the Acting Regional Director rescinded his approval of the stipulation, vacated the election, and ordered a representation hearing pursuant to sections 3(b) and 9(c) of the Act, 29 U.S.C. §§ 153(b), 159(c).
Also on August 19, apparently before it received the Acting Regional Director's order, the Company wrote to him protesting his refusal to tally the ballots. This letter was forwarded to the Board, which treated it as a request to review the order and denied it "without prejudice to renewal in the representation proceeding scheduled for hearing on September 3, 1970." However, the Company refused to participate in that hearing, appearing for the sole purpose of contesting the Acting Regional Director's authority to order it. The Regional Director affirmed the action of the Acting Regional Director and ordered a mail ballot election for October 26, 1970, which was won by the Union by a vote of 8 to 4.
On November 11, the Company filed a petition with the Board asking it to tally the votes of the first election. The petition admitted that five employees had been absent from the plant because of work assignments, alleged that the sixth employee had been transferred at his own request, and argued that the election was nonetheless valid. The Board denied this petition, and the Regional Director certified the Union as the bargaining representative of the employees.
The Company refused to bargain with the Union, which filed unfair labor practice charges against the Company. The Company's answer admitted its refusal to bargain, but alleged that it had no duty to bargain, challenging the validity of the second election on the grounds set out in its November 11 petition. The Board's General Counsel moved for summary judgment and the Board transferred the case to itself for consideration of this motion. In its response to the motion the Company alleged for the first time that three of the five employees absent on work assignment on August 10 had either requested such assignment or were prevented from returning to the plant by mechanical failures. Noting that this evidence was neither newly discovered nor unavailable at the time of the representation hearing, the Board refused to reopen the issue of the validity of the first election, and granted the General Counsel's motion. Its subsequent order is the subject of this petition.
It is Board policy to set aside elections when a significant number of employees have not had the opportunity to vote,1 and its power to do so is beyond question. Congress has entrusted the Board with a wide discretion in conducting and supervising elections. See NLRB v. A.J. Tower Co., 1946, 329 U.S. 324, 330-331, 67 S.Ct. 324, 91 L.Ed. 322. This Court has held that:
"Such discretion includes the determination of whether or not the opportunity afforded all eligible voters to exercise their rights was sufficiently `adequate\' or `equal\' as to reflect accurately the `majority\' required by the statute." International Telephone & Telegraph Corp. v. NLRB, 9 Cir., 1961, 294 F.2d 393, 395.
The Board has delegated broad authority to the Regional Director to conduct and supervise elections, see 29 C.F.R. § 101.21; thus he is vested with the same discretion.
The Company does not dispute these general principles. It argues that the Acting Regional Director had no authority to set the first election aside under the particular facts of this case. This is so, it says, because that election was conducted pursuant to a Stipulation for Certification Upon Consent Election, and was therefore subject to the limitations provided in 29 C.F.R. § 102.62(b). That regulation states in relevant part:
"(b) Where a petition has been duly filed, the employer and any individuals or labor organizations representing a substantial number of employees involved may, with the approval of the regional director, enter into an agreement providing for a waiver of hearing and a consent election leading to a determination by the Board of the facts ascertained after such consent election, if such a determination is necessary."
From this language the Company argues that the Acting Regional Director was "bound" by the terms of the stipulation, which said nothing regarding giving all employees an opportunity to vote, and that his role was limited to that of "an employee of the Board conducting the election." It concludes that only the Board could set the election aside.
The Board has not taken such a circumscribed view of the role of the Regional Director in conducting consent elections. In Super Valu Stores, Inc., 1969, 179 NLRB 469, a union filed a petition for an election among certain employees only hours before a consent election was to be held pursuant to a stipulation between the employer and another union. Following the election, the Regional Director ordered the ballots impounded without tallying them. Later, he rescinded approval of the stipulation and vacated the election. In sustaining this action, the Board stated: "Implicit in the Regional Director's authority to approve consent election agreements is his authority to revoke that approval when he determines that changed circumstances, discovered prior to the counting of the ballots, warrant such revocation." 179 NLRB at 469. This interpretation of section 102.62(b) is not plainly erroneous, and we are therefore bound by it. See Immigration and Naturalization Service v. Stanisic, 1969, 395 U.S. 62, 72, 89 S.Ct. 1519, 23 L.Ed.2d 101.
The Super Valu Stores principle supports the Acting Regional Director's action in this case. The stipulation expressly provided that the election was to be conducted "in accordance with the . . . applicable procedures and policies of the Board," one of which was that all eligible employees should have an opportunity to vote. Cf. NLRB v. A. J. Tower Co., supra, 329 U.S. at 333-334, 67 S.Ct. 324. Furthermore, the Company had assured the Acting Regional...
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