Shoreline Enterprises of America, Inc. v. NLRB, 16733
| Decision Date | 14 January 1959 |
| Docket Number | No. 16733,16874.,16733 |
| Citation | 262 F.2d 933 |
| Parties | SHORELINE ENTERPRISES OF AMERICA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Ruth DE PRATTER, Vera Mobley, Billie Traina, and Joe Diaz, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Cody Fowler, Granville M. Alley, Jr., Tampa, Fla., Fowler, White, Gillen, Yancey & Humkey, Tampa, Fla., of counsel for Shoreline Enterprises of America, Inc.
Andrew P. Carter, New Orleans, La., John A. Chilldon, Tampa, Fla., for petitioner Ruth DePratter.
Stephen Leonard, Associate Gen. Counsel, Owsley Vose, Atty., N. L. R. B., Washington, D. C., Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Alice Andrews, Attys., National Labor Relations Board, Washington, D. C., for respondent.
Before RIVES, JONES and WISDOM, Circuit Judges.
Two petitions are before the Court to review a decision and order of the National Labor Relations Board.1 In representation proceedings, after a consent election, the Board certified the International Union of United Brewery, Flour, Cereal, Soft Drinks and Distillery Workers of America, AFL-CIO as the exclusive bargaining agent of the employees of Shoreline Enterprises of America, Inc. of Tampa, Florida. On the complaint of the Union, in unfair labor practice proceedings, the Board found Shoreline guilty of refusing to bargain with the Union and issued a cease and desist order against Shoreline.
Shoreline attacks the certification of the Union and the resulting Board order, contending that the election was invalid and also that the Union was not in compliance with Section 9(h) of the National Labor Relations Act requiring union officers to file a non-communist affidavit before invoking the Act. Four Shoreline employees (Ruth De Pratter, Billie Traina, Vera Mobley, and Joe Diaz) had intervened in both the representation and the unfair labor practice proceedings. These Intervenors filed a petition to set aside the Board order on the ground that, although eligible, they were denied the right to vote in the election.2 The Board cross-petitioned for enforcement of its order. The petitions are consolidated for purposes of review.
We set aside the order of the Board and remand the cases for proceedings not inconsistent with this opinion.
A somewhat detailed review of the facts and proceedings clarifies the issues.
February 14, 1955, after a campaign of ten weeks to organize Shoreline's employees, the Union filed a petition with the Board under Section 9(c) of the Act. The Union asked for an election to be held among Shoreline's employees to determine if it should be certified as the bargaining representative in a unit consisting of all production and maintenance employees, including refrigeration engineers, and excluding supervisors, clericals, and professional workers.
March 3, 1955, the Board held a representation hearing. The Company challenged the appropriateness of the proposed unit. One witness, Shoreline's plant manager, testified as to the various duties of the plant employees. He testified that De Pratter, Mobley, and Traina performed clerical duties, such as keeping records for time study or cost purposes of the time spent by each plant employee; that Traina, in addition, worked in the packaging room. The Company objected to these employees being included in the unit. The Union contended that these employees were "plant clericals" and "within the unit", but that it would "leave that determination to the Board". The plant manager testified that Diaz' time was "almost entirely devoted to driving the truck". At first the Union stated that it was "seeking to represent the truck driver". Then, after Shoreline's attorney objected that the Union's position constituted an amendment of its petition, the Union withdrew "its claim to the truck driver". While taking no position as to Diaz, the Company again objected. The Company was represented at the hearing by its attorney, Mr. Alley. Mr. Gerchak was the Union's representative. The Intervenors were not present at the hearing.
While these questions were pending before the Board, Alley and Gerchak held a conference March 21 under the auspices of the local office of NLRB. This resulted in Alley and Gerchak signing a "Stipulation for Certification upon Consent Election", a Board form.
Before executing the "consent election agreement", Alley and Gerchak again conferred as to the status of the Intervenors. At this meeting the Union and the Company reversed their positions as to the Intervenors' eligibility. The Company favored, the Union opposed, inclusion of the Intervenors. When it looked as if negotiations would break down, the Examiner asserted that if the parties could not reach agreement, the Board would determine the Unit. Alley telephoned Hice, a Vice President of Shoreline, that the Union was insisting on "excluding clericals and truck drivers", and that the "four employees Intervenors * * * would be unable to vote because that was their job classification". Alley then consented to the unit and to the exclusion of the Intervenors, as the Union requested.3
In accordance with usual Board procedure, Examiner West required that employees within the excluded classifications be stricken from the eligibility list to be used in the election. Alley inquired as to whether De Pratter, Mobley, Traina, and Diaz, "could be stricken from the list under the unit * * * agreed to". According to Alley, West, "was satisfied that these employees were excluded from the unit * * * agreed to" and were ineligible to vote. Their names were then stricken from the eligibility list which Alley and Gerchak signed.4
Before the election the Board agent in charge of the election gave voting instructions to the election observers and the representatives of the Company and the Union. According to De Pratter, present as an observer, the Board agent stated that she, Mobley, Traina, and Diaz were not to be allowed to vote; if they showed up at the polls they should be sent back to the plant. There is a dispute as to whether the agent went this far. Directly after the meeting, the Company's representative informed Traina that she could not vote.
The election was held April 4 and 5, 1955, under the supervision of an agent of the Board. There were 133 eligible voters. 114 votes were cast: 58 for the Union and 55 against the Union. One vote was challenged.5 It was against the Union. The four Intervenors would have voted against the Union. So they alleged in affidavits. If three of the Intervenors had voted, a tie would have resulted and the Union could not have been certified. If only two had voted, the challenged vote would have been decisive.
Before the election Hice told De Pratter, Traina, and Diaz that they were ineligible to vote. At the pre-election meeting between the Company and Union representatives the Field Examiner had told De Pratter either (a) that she and the other intervenors could not vote or (b) that they were ineligible. The first day of the election Mobley went to the polls to vote. According to her testimony, the Field Examiner said that she could not vote; it "didn't make a darn bit of difference with him, but it wouldn't be counted". The Board agent stated that he informed Mobley of her rights. The report of the Regional Director, however, points out that "other voters received the impression that Mobley's vote would not be counted but would be simply wasted". De Pratter was present at the incident and corroborated Mobley's testimony. Mobley left the polls, returned to the plant, and told Traina that the Board agent had prevented her from voting. Traina then refrained from attempting to vote.
The day after the election, the Intervenors filed objections to the election, alleged their eligibility, and asked that the election be set aside. The day after this filing the Regional Director denied the Intervenors' objections.
April 11, Shoreline filed objections on the grounds that: (1) the Union had threatened and intimidated the employees; (2) paid organizers of the Union served as election observers; (3) the action of the Board resulted in four eligible employees not voting. In explanation of its third objection, Shoreline contended that its attorney, Alley, had been misled concerning the Intervenors' duties by statements of representatives of the Union and the Board. The Regional Director investigated, then recommended that the objections be overruled. He found that a substantial issue was raised as to the Board agent's responsibility for De Pratter and Mobley not voting, but concluded that the Company was not prejudiced since the Intervenors were not eligible. October 26, 1955, the Board certified the Union as the exclusive bargaining representative of all the employees. The Board found that since the Company had agreed to exclude the Intervenors, they were not eligible to vote, and that the Board need not determine the cause of their not voting.
November 5, 1955, ten days after certification of the Union, 102 of the 133 employees within the unit signed and filed a petition with the Company stating that "the union election * * * was not a fair election" because "De Pratter, Mobley, Traina, and Diaz were not allowed to vote". The signatories said that they "rejected the Union as their agent".6
November 7, 1955, Shoreline gave a general wage increase of 5 cents to 15 cents an hour to all its employees without giving notice to the Union. Two months later the Union filed charges of unfair labor practice, alleging that the Company had unlawfully refused to bargain. February 14, 1956, the Board issued a complaint based on the Union's charges.
At the unfair labor practice hearing May 15, 1956, De Pratter, Mobley, Traina, and Diaz were allowed to intervene for the limited...
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