Semi-Steel Casting Co. v. National Labor Relations Board
| Decision Date | 21 April 1947 |
| Docket Number | 13344.,No. 13343,13343 |
| Citation | 160 F.2d 388 |
| Parties | SEMI-STEEL CASTING CO. OF ST. LOUIS v. NATIONAL LABOR RELATIONS BOARD. WEBER et al. v. SAME. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph T. Davis, of St. Louis, Mo., for petitioner Semi-Steel Casting Co. of St. Louis.
John W. Giesecke, of St. Louis, Mo. (Ackert, Giesecke & Waugh, of St. Louis, Mo., on the brief), for petitioners Benjamin Weber, James Ellis and Simon Birk.
Charles K. Hackler, Regional Atty., of Clayton, Mo. (Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Ida Klaus and Robert E. Mullin, Attys., all of Washington, D. C., N.L.R.B., on the brief), for respondent.
Before THOMAS, JOHNSEN, and RIDDICK, Circuit Judges.
October 30, 1943, the Semi-Steel Casting Company of St. Louis and the International Molders and Foundry Workers Union of North America, Local No. 59, A. F. L., executed an agreement for a consent election for the certification of a representative of an appropriate bargaining unit among the employees of the company. The agreement was duly approved by the Regional Director of the National Labor Relations Board, and an election pursuant to its terms was held on November 4, 1943.
In the election agreement the company and the union agreed upon the employees constituting the unit appropriate for the purposes of collective bargaining and the time and place of the election, provided that the election should be by secret ballot, that it should be conducted under the supervision of the Regional Director of the Board in accordance with the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the rules and regulations and customary procedures and policies of the Board, and that the decision of the Regional Director should be conclusive on any question raised by either party to the election and not covered by the agreement. The company was required to furnish to the Regional Director a list of eligible voters constituting the unit. The company and the union were each granted the right to station an equal number of observers at the polling place to assist in the conduct of the election, to challenge the eligibility of voters, and to verify the result. Objections to the conduct of the election and the determination of the result were to be filed by either party within five days after the closing of the polls. The Regional Director was required to investigate any objections filed, and upon completion of his investigation to issue his finding of the result of the election.
At the conclusion of the balloting the agent of the Regional Director in charge of the election and the authorized observers of the union and the company, present at the balloting, certified that the accounting and tabulating of ballots were fairly and accurately done and the secrecy of the balloting maintained; that the number of eligible voters was 129, the number of ballots cast 119, of which two were void; that of the 117 valid ballots cast and counted, 59 were for the union and 58 against it. The same parties also executed a certification on "conduct of the election" in which they affirmed that the balloting was fairly conducted, that all eligible voters were given the opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.
The ballot used in the election was furnished by the Board and was the standard form used in all Board elections. It was a single sheet of paper divided by horizontal lines into three sections. The top section contained in large type the heading:
United States of America, National Labor Relations Board, Official Ballot,
under which in typewriting was written: "To determine the representative, if any, for the purposes of collective bargaining for certain employees of Semi-Steel Casting Company, St. Louis, Missouri." The middle section contained the following directions to the voters:
Across the top of the bottom section of the ballot was printed in large type: "Mark an `X' in the square of your choice." This was followed by the question: "Do you desire to be represented by International Molders and Foundry Workers Union of North America, Local No. 59, AFL?" Immediately below this question were two blank squares. At the top of one the word "Yes" was printed and above the other the word "No." At the bottom of the ballot in large capital letters was the admonition: "This as a secret ballot and must not be signed." Of the two ballots which were rejected and not counted, one had an X marked in both the Yes and No squares. The other had no mark in either square, but the voter, George Flemings, had signed his name opposite the word No appearing over the No square on the ballot.
Objections challenging the ruling of the agent of the Regional Director in charge of the election on the validity of the rejected ballots were presented to the Regional Director by the company, were examined by the Director and denied on November 9, 1943, and the union was certified as the duly elected bargaining representative of the employees.
The company declined to recognize the union as the bargaining representative of its employees. Upon complaint of the union, proceedings were held before a trial examiner of the Board and before the Board, with the result that on March 14, 1946, the Board adopted the finding of the trial examiner that the company had engaged and was engaging in unfair labor practices within the meaning of section 8(5) and (1) of the Act by refusing to bargain collectively with the union which the Board found had been designated in the consent election as the representative of the company's employees. The Board's order requires the company to cease and desist from its unfair labor practices, to bargain with the union upon request, and to post appropriate notices. Employees of the company opposed to the union were denied the right to intervene in these proceedings. In No. 13,343 we are asked by the company and in No. 13,344 by the employees whose petition to intervene was denied to review and set aside the order of the Board. The Board in its answer asks that its order be enforced.
The company does not deny that it refused to bargain with the union following the Board's certification of the union as the representative of the employees for the purpose of collective bargaining. It seeks to justify its refusal on the grounds, (1) that the Regional Director's report of the election shows that the union was not the choice of a majority of the employees voting in the election, and (2) that the union does not now represent a majority of the employees of the designated unit.
In support of its petition the company contends: (1) that for the purpose of calculating the majority of votes in the election the Board was required to include all ballots cast whether valid or invalid, since in either case all ballots were cast by eligible voters participating in the election; and (2) that the ballot of George Flemings shows on its face that the voter intended to and did in fact cast his ballot against the union. If either of these contentions is accepted, the union did not receive a majority vote in the election. If both rejected ballots are counted, the total number of votes in the election was 119; if only one, the total is 118. In either case the number of ballots constituting a majority of those cast is 60, whereas only 59 were in favor of the union. If the ballot marked with an X in both the "Yes" and "No" squares is not counted and the ballot cast by George Flemings is counted as a vote against the union, the result is that the votes for and against the union were equal in number, in each case 59, and the union was not the choice of a majority.
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. Important in the effective use of the election agreement for the purposes stated are the provisions that the election shall be held in accordance with the National Labor Relations Act and with the policies, rules, and regulations of the Board, and that the decision of the Regional Director concerning questions not covered by the agreement shall be conclusive on the parties. On review the Board accepts the Regional 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...
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