Westchester Plastics of Ohio, Inc. v. NLRB

• Decision Date: 18 October 1968
• Docket Number: No. 17990.,17990.
• Parties: WESTCHESTER PLASTICS OF OHIO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

401 F.2d 903 (1968)

WESTCHESTER PLASTICS OF OHIO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17990.

United States Court of Appeals Sixth Circuit.

October 18, 1968.

COPYRIGHT MATERIAL OMITTED

J. Mack Swigert, Cincinnati, Ohio, for petitioner.

William H. Carder, N.L.R.B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Atty., N.L.R.B., Washington, D. C., on the brief), for respondent.

Before O'SULLIVAN, PHILLIPS and PECK, Circuit Judges.

PECK, Circuit Judge.

Westchester Plastics of Ohio, Inc., the petitioners to this court, and the Union, United Electrical Radio and Machine Workers of America, on January 19, 1966, executed a stipulation for certification on the basis of a consent election. The consent election was held on February 4, 1966, and all 41 of the eligible voters cast ballots. One ballot, that of Larry Stolzenburg, was challenged by the Board agent because he had arrived after the close of the polls. The Board agent told Stolzenburg that he could vote on a challenged ballot or he could wait and cast a nonchallenged ballot at the other plant. For reasons of personal convenience, Stolzenburg elected to cast the challenged ballot.

After the balloting, but before the ballots were counted, Petitioner and the Union agreed to exclude Stolzenburg's ballot upon the Petitioner's representation that Stolzenburg's employment was terminated before the election. Both parties initialled the envelope containing Stolzenburg's ballot and they placed this notation on the envelope "agreed ineligible, no longer employed." The agreement to exclude Stolzenburg's ballot did not include any reference to Stolzenburg being late to the polls. The tally, excluding Stolzenburg's ballot, showed 20 votes for the Union and 20 votes against it.

Stolzenburg was employed full time as a fireman for the City of Wapakoneta, and on his days off (starting in October 1965) he worked part time for the Petitioner. Stolzenburg's days off from his full time job changed every two weeks, but he averaged 16 to 17 hours per week at Westchester Plastics. As the Petitioner's business declined around December 1965, Stolzenburg adopted the practice of calling the Company rather than reporting on his off days, in order to find out if he was needed.

Stolzenburg continued to work in this manner until January 24, 1966, on which date he worked 5½ hours. He did not work again until after the representation election when he was told to report on February 9, 1966. Upon being discovered by Rhind, the plant manager, Stolzenburg was sent home. It was explained to him that full-time employees were hired and that part-time employees would not be needed.

On February 10, 1966, the Union filed timely objections to conduct affecting results of the election. The Union's main contention was that Stolzenburg was eligible to vote and his ballot should have been counted since the Petitioner misrepresented Stolzenburg's status as an employee before the ballots were counted and that this misrepresentation induced the Union to agree after the election to Stolzenburg's ineligibility. On March 17, 1966, the Regional Director overruled the Union's objection and concluded that the parties should be bound by their post-election agreement as to the ineligibility of Stolzenburg.

The Union filed exceptions to the Regional Director's report and on June 1, 1966, the Board directed that a hearing be held. Subsequently, the Hearing Officer issued his report on August 30, 1966, finding that Stolzenburg was an employee on the day of the election and that the post-election agreement was not binding on the Union. The Hearing Officer recommended that the challenge to the ballot of Stolzenburg be overruled and that his ballot be opened and counted.

On December 9, 1966, the Board adopted the findings and recommendations of the Hearing Officer and directed the Regional Director to open and count the ballot of Stolzenburg. The Board found that the post-election agreement as to Stolzenburg's ineligibility was induced by the Petitioner's misrepresentation, innocent or otherwise, and the Board gave no weight to the post-election agreement.

The Regional Director counted Stolzenburg's ballot and on December 21, 1966, issued a Certificate of Representation to the Union. The Petitioner has since that time refused to bargain with the Union. The Board then issued a cease and desist order against Westchester Plastics of Ohio, Inc. on June 8, 1967. 165 NLRB No. 30. Westchester Plastics filed a petition for review on June 12, 1967 under Section 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f).

The basic issue as to whether the Board erred in its determination to certify the Union must be resolved on the basis of whether or not the Board abused its discretion in the disposition of the challenged ballot of Stolzenburg, and whether or not Stolzenburg was ineligible to vote because he was an irregular, part-time employee with no expectancy of recall.

The evidence and arguments present two conflicting views to the proceedings that led up to the parties' post-election agreement. The parties are also in disagreement over the employment status of Stolzenburg at the time of the pre-election conference and of the election. In reviewing the Board's conclusions as to these conflicts we must keep in mind the fact that "the Board's choice between two conflicting views may not be set aside even though the court would justifiably have made a different choice had the matter been before it de novo." N.L.R.B. v. Bendix Corp., 299 F.2d 308, 310 (6th Cir.), cert. denied, 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962). At the pre-election conference, Petitioner claims it forewarned Toth, the Union representative, that it would challenge the ballot of Stolzenburg if he tried to vote since his employment had been terminated. Toth testified that no such statement was made to him. The Hearing Officer credited Toth's denial.

The Petitioner also claims that Rhind terminated the employment of Stolzenburg in the middle of January 1966. Rhind told leadman Truesdale to communicate this to Stolzenburg, but he inadvertently failed to do so. Since Stolzenburg did not work from January 24 to February 4, the Petitioner claims that his employment was terminated or that he was laid of without reasonable expectancy of recall and that Stolzenburg's employment on February 9 was a mistake. The Hearing Officer credited Stolenzburg's assertion that he was not told of any termination or layoff before the election. The credibility of witnesses and the reasonable inferences to be drawn from the evidence are matters for determination by the Board. Champion Papers, Inc. v. N.L.R.B., 393 F.2d 388, 394 (6th Cir. 1968); United Fireworks Mfg. Co. v. N.L.R.B., 252 F.2d 428, 430 (6th Cir. 1958); N.L.R.B. v. Ridge Tool Co., 151 F.2d 947, 948 (6th Cir. 1945).

The Hearing Officer's finding, which the Board adopted, was that Stolzenburg was an employee at the election date. If this finding was supported by substantial evidence on the record considered as a whole, the reviewing court is not free to substitute their judgment. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Hearing Officer based his finding on these facts:

1. Stolzenburg worked 5½ hours on January 24, 1966, although Rhind testified that Stolzenburg\'s employment was terminated in the middle of January 1966;

2. Stolzenburg was never informed before February 9, 1966, that his employment was terminated;

3. On February 9, 1966, Stolzenburg called and was told to report for work. He worked 2½ hours before being asked to leave;

4. Stolzenburg was told by Howard, the Company\'s production manager, that he was temporarily laid off and it would last a month. Howard testified that he said nothing to Stolzenburg. The Hearing Officer credited Stolzenburg;

5. Stolzenburg\'s name appeared on the eligibility list prepared by the Company for the election;

6. Collins, the Company\'s attorney, told Toth that Stolzenburg\'s employment terminated at the pre-election conference February 4, 1966. Toth denies that this was said. The Hearing Officer credited Toth;

7. Petitioner did not remove Stolzenburg\'s name from the voter eligibility list. For the February 4, 1966, election list, the Company removed the name of Copland, a deceased employee, from the list sent to the Regional Director on January 12, 1966, but the Company did not take Stolzenburg\'s name off;

8. Stolzenburg had a timecard for the week ending February 15, 1966;

9. Stolzenburg said he worked 16 to 17 hours a week from October or November 1965 to January 24, 1966. He did not work the two weeks between January 24 and the election;

10. Petitioner put the name of Donald Arnett on the second eligibility list; he was a part-time worker who worked Fridays and occasional Saturdays.

Petitioner contends that Stolzenburg was ineligible to vote because he was an irregular, part-time employee. The test for determining eligibility is the individual's actual status on the eligibility date and election date. Sylvania Electric Products, Inc., 119 NLRB 824, 831 (1957). Casual employees who perform work at only intermittent periods have been excluded by the Board from the bargaining unit. G. C. Murphy Co., 128 NLRB 908 (1960). As stated in Shoreline Enterprises of America, Inc. v. N.L.R.B., 262 F.2d 933, 944, 69 A.L.R. 2d 1174 (5th Cir. 1959), the eligibility to vote in an election to determine a bargaining agent depends on whether an employee is sufficiently concerned with the terms and conditions of employment in a unit to warrant his participation in the selection of a bargaining agent. The Board has established a...