National Labor Relations Board v. The Joclin Manufacturing Company

Springs. Under this appellant Hot NATIONAL LABOR RELATIONS they appellant’s scheme, take BOARD, Petitioner, Hert2; Hilton Carte Rent-a-Car go purchase cards, out Blanche credit filling stations, JOCLIN sell MANUFACTURING COM merchandise PANY, Respondent. among goods proceeds and divide the they basis, No. Docket 27675. four of them. On Missis- proceeded Louisiana and into had United Appeals States of Court disposed up picked sippi and had Second Circuit. they engaged tires before 20 automobile Argued Dec. 1962. stealing the bonds. incident Decided Jan. 1963. claim no there was While Rehearing Denied March appellant knew of the commission signifi occurred, until after it theft subsequently did, as of what cance Easterling Aderholt, testified there was found it to be entitled acceptance re thereof as ratification plan and of the fruit lated underlay trip. associationship which Easterling did, appellant when What Springs, was suffi Hot reached Aderholt this ratification also to show that cient occurred, acceptance so as to had participant, at the time him made have Easterling telephone call of Childs’ bring stating appellant said to had Appellant’s Springs. Hot the bonds Easterling dealings and Aderholt with adequately were at confirmed that expected being him on this time Easterling statement Childs’

basis. appellant said thus con what expression made in the ex stituted partici plan the four of the ecution history part their pants and was venture. filed statement testimony contention that

makes Easterling with as to conversations being incompetent as hear appellant Testimony by a witness as to his say. is, a defendant conversation hearsay. Other technical con course, not of evidence are as to matters tentions any equally are without made arguable substance. present appellant failed to Since can or issues which reason- questions arguable involve sub- ably said to appeal

stance, will be dismissed. Appeal dismissed. Davison, Washington, Warren M. D. (Stuart Counsel, Rothman,

C. Gen. Manoli, Dominick L. Associate Gen. Counsel, Mallet-Prevost, Marcel Asst. Counsel, Gen. Warren M. Davison C., Giesey, Washington, Peter M. D. petitioner. Attys., brief), for Snow, Wiggin Dana, Jr., Robert B. & Haven, Conn., respondent. New for LUMBARD, Judge, Before Chief Judges. FRIENDLY, SWAN Circuit

Judge. FRIENDLY, Circuit

The National Labor Relations order, seeks enforcement of an 137 NL determining respondent RB No. Manufacturing Company, engaged in the manufacture and inter- plastics products state sale of related Conn., Wallingford, 8(a) violated § (5) (1) National Labor Re- refusing bargain lations Act Cork, Rubber, Linoleum & United Plas- America, AFL-CIO, tic Workers Union, hereafter which had been a consent election as after certified bargaining representative of a unit employees. The sole issue is the Joclin’s validity Finding certification. disposition error in the Board’s material deny counted; challenges ballots, we seven should not be the chal- of enforcement, certain lenges order, and re- made Palukis were vacate the Rollins and ground Agent proceed- mand the Board ings. their names the list sub- were not on parties. mitted Di- stipulated. On Most of the facts were recommending report rector filed repre- the Union filed challenges D’Amico, to the ballots designation seeking sentation DeTour, Bianco and and also to those bargaining representative of as the Palukis, overruled, of Rollins and Joclin’s ployees. that the Ro- to the ballots of Soon thereafter Joclin sania, Celia, Stupski and Ursini be sus- “Stipulation Cer- Union executed a for excepted tained. Joclin the latter to Election”, upon later tification Consent recommendation and also to the overrul- Regional approved by Direc- the Board’s ing challenges respect of the with to eligible “those tor. It defined voters as Palukis; Rollins and the Union not. did Unit de- included within the except overruling challenges. the itsof below, employed scribed were dur- who respect with DeTour, D’Amico, and' Bianco below, payroll period the indicated validity and the of these three including employees who did not longer votes was no As. thus contested. payroll period said because to the six ballots that remained in issue' temporarily ill were or or on vacation Board, the Regional 17, adopted on October the- * * any *, excluding laid off recommendations,, Director’s ployees quit have who since been dis- or finding Employer’s “that exceptions, the * * charged pro- for cause do not raise material and substantial is- by a vided that “At the Re- date fixed tally sues”. The revised 19 showed gional Director, parties, requested, the as against; votes for the Union and 17 Regional will furnish to the Director an total, course, ques- included the eligible voters, all accurate list of the to- tioned votes of Rollins and Palukis and gether employees, a if with list of did not include Rosania, Celia,. those of eligibili- any, specifically Stupski and Ursini. On October the- ty.” July 7, The was fixed for election Regional Director certified Union. 1961, ending 16, with the week Taking position that the certificate- “Payroll Eligi- 1961, as the Period for invalid, bargain.. Joclin refused to bility”. bar- pro- collective Charge by Union, complaint by the gaining “All unit described as Counsel, General hearing, Intermediate- employees, duction and maintenance ex- Report upholding complaint, excep- cluding office, professional clerical and by Company, tions affirmance the- guards supervisors employees, as de- Board, petition for enforcement fol- Act.” fined the lowed in due course. tally of ballots cast in the election 9(c) provides undisputed § that- showed 17 votes for filing upon representation a against, challenged. pe Union, and 9 tition, described, challenged therein “the as Since ballots suf- investigate result, shall such it if to affect the ficient proceeded has cause to believe reasonable that a. Director conduct an investi- representation affecting question obtaining gation, com information about the provide challenged appro shall merce exists an voters from nine the Com- e hearing upon priate notice”, due th pany voters themselves. require does not in position statute ing terms hear took the the votes respect the results of an employees D’Amico, with elec Bianco, seven — says tion; simply, DeTour, Rosania, Celia, “If Stupski, the Board finds.. * * * counted, question repre Ursini—should be such exists, those of two—Rollins and it shall Palukis—(cid:127) sentation direct an elec e certify should not. The Union claimed that the tion secret ballot shall th produce Normally can or to there evidence in own be results thereof.” might de half judicial im either have tended to review not be peach cer or contradict the facts found hold election or cision to an Fed American Director as to status of tification its results. challenged employees." these B., U.S. L. The court N. R. eration Labor v. (1940); deprived held that such action em 84 L.Ed. 347 60 S.Ct. ployer right Kyne, of his constitutional U.S. but cf. Leedom v. hearing, (1958). fair On and invalidated the Board’s L.Ed.2d S.Ct. finding hand, plain that when an unfair committed other practice refusing bargain re employer for labor Board fusing faulted union, bargain with the certified certified union. re We are not only quired something reviewing consider consider whether must court hearing a complete in the short of “trial-type” law and fact error of claims of provided might in with pre-election as determination certification law not fill the 9(d), Davis, errors of bill. See 1 claimed but other Adminis § Treatise, er underlying certification, trative Law such 7.01-7.05 §§ (1958). Regulations For disposition of the Board’s rors provide now Administrative that “the Board election ballots. See direct” 1009(e); such Act, on U.S.C. Procedure 5 to the Re challenged § gional Pittsburgh report R. Co., L.N. Director’s v. Plate Glass on 908, 154, appears 85 “if B., 146, ballots 61 313 U.S. S.Ct. to the Board that Moyer exceptions (1941); such v. 1251 N. L. R. B. raise L.Ed. substantial and Cir., (2 Pratt, Inc., Reg. material F.2d 624 factual 208 issues.” & 102.69 § (e); 1953); Knit 102.69(c) see also (d).1 B. Glen Raven N. L. R. v. and The § 1956). (4 properly ting Mills, Cir., Board F.2d 413 has 235 not contended either Regulations’ in done that the not so what phrase It is clear should use the of “appears regard disputed con issues fact of the Board” makes its deter cerning challenged conclusive, to mination ballots—issues as see United States hearing Laughlin, which, v. 440, of 249 in a the absence U.S. 89 S.Ct. stage (1919),2 will 63 L.Ed. 696 there after the or some that their use gives to re “may” for the court be no record formal of the verb it an unfettered grant deny hearing, view. discretion to or a v. United States Board see Goldsmith Sidran, B. 181 In L. N. R. Appeals, 117, 123, Tax 270 U.S. S.Ct. 46 (5 Cir., 1950), Board the F.2d ; (1925) L.Ed. N. L. R. B. v. Regional accepted a Director’s election Storage, Inc., 74, 76 K. Van O. disputed report issues which determined 1961). consequence (5 Cir., In a court eligibility ex the an basis of voter of parte finding properly an enforce order cannot giving investigation, the without guilty heard, employer of an unwarranted re any “opportunity employer to be witnesses, bargain cross-examine with a union certified to examine fusal prac- hearing permit unfair labor on the second bite at the not the same 1. At practice charge, apple endeavored to submit labor in an unfair case tice employment certification; relating status as to the to the we are not evidence involved; persons required Trial Ex- the wliat the rule six decide would be the objection by prior opportunity the were this on thus afforded. if no aminer Counsel, and Joclin made an General 2. proof. Board sustained Board likewise does not contend offer ruling, adding that “no evi- election the consent here was held Examiner’s that procedure previously of- set forth in § not considered was 102.62 under dence which, single excep- Regulations, (a) with a immaterial of its unlike that fered” 102.62(b), opportunity provided in § In afforded makes the Re- view tion. rulings Regulations gional final Director’s as to elec- the Board’s seek hearing Di- held thereunder. See Statements tions pro- Procedure, report § in the certification 101.19. rector’s ceeding, agree we that the Board need respect geo employees” appears, with maintenance in an election if without result, graphical challenges affecting restriction; either Ursini was both erroneously production employee, disposed that employer and the effect Director's of law that as a matter or ruling quite, him, factual material disenfranchise raised “substantial needlessly Regulations in the direc violation of issues” under seasonably hearing re- tion that em the Board shall “assure to denied that he way ployees exercising criti- fullest freedom quested. in no we conditioning rights guaranteed by act”, § the Board’s thus cize showing 9(b). Apart right this, that on a all to a just ma- are “substantial overruled Denver-Colorado factual issues only proper Springs contrary requirement reestablished terial”-—a N.L.R.B., dilatory necessary Banner, tactics rule of prevent Ocala Star disappointed (1951), by employers 384 Springs or unions which Denver-Colorado- showing previously election returns —Joclin’s Berea overruled. Publishing Co., election that test. to this close met No. N.L.R.B. (Jan. 1963). The Board be “now Ursini, Re With (s) employee- lieve devoting dual-function gional dispute em Director did not percent less than 51 of his time- namely, facts, ployer’s version of to unit work have sufficient interest un had been hired with Ursini employment condition unit's to- derstanding spend he would 80% be Id., included unit.” sheet production his time in 20% Exclusion of Ursini’s ballot was errone cars; maintaining company ous as a matter of law. as that work was the same by production performed em Rosania, other whose bal Union’s-, only employee ployees; upon that he was the lot was also excluded doing work; that, challenge, job ow car maintenance a full-time with an ing unexpectedly heavy employer, amount an to other Joclin’s submission major work, spent him, repair immediately 1201.6 he had made after only election, ear maintenance 280.4 the on and was “he on hours that was hired September permanent regular production production- on since basis for hours 1960; early June, 1961, the ear was work” in and that ex and “is pected part-time the sole at a site where Ursini was on done in basis definitely.” Regional employee, than in a town other that The Director plant found, exception by Joclin, is located.3 The Joclin’s where without that Regional payroll periods beginning Ursini on in Director excluded the five June ending ground July primarily averaged' he not en that “is 17 and Rosania in, spend gaged week, and does not more than 24 hours a after which he worked' July performing day, of his time duties one and then laid off' was 50% employees request department. to the for lack of work in similar his citing unit”, Denver-Colorado ed Since Rosania had worked hours- 30.4 agreed Way, Spxings-Pueblo Motor 129 N.L. test week of 16 (1961). That was 1184 case rather to work R.B. and continued a substantial num distinguishable through plainly since related ber of hours the date of the- already employee represented seem, prima facie, would he an bargaining agreed unit of the same have been within the em group another gave “sufficiently she and ployer, to which more than 50 concerned time, her and per employ cent of whereas Ursini with the terms conditions maintaining alone when in unit participa com ment to warrant his worked The cars. unit described in in the selection pany tion of bar collective production agent.” gaining stipulation Enterprises, “All here was and Shoreline Report disputed fact This last comes from Director’s is not Jodia materials, B., production F.2d ceive and all L. R. issue America, N. Inc. v. Cir., reports (5 maintain records and furnish 933, 944, A.L.R.2d in-process goods, physi- later “cannot finished take 1959). happened What quarterly basis, cal criti on inventories on picture as it stood color the Towing production, cost, maintain Belcher sales B. date”, N. L. cal R. 1960), shipment (5 Cir., records, prepare weekly Co., 284 F.2d believing reports. They supervised by labor that for are is a basis there unless Supervisor contemplat a Cost developments who is in the were office the later department, clerical drew rather Director than ed before. Manager. Production from Rosania’s effect to that estimated a conclusion Agent spent never that having he that their time was a Board “told 80% 70% seriously; work, he was clerical job that when the remainder on issu- took the ing receiving part-time and was told it materials. he was Re- laired gional they they him if needed Director held use that their that would votes him,” because, his should be him call counted and would extent they having workers, mat were “refused to discuss not then “plant further, saying clericals”, be would ter “inas- only Employer if and much as he did his office clericals trouble with have been unit, plant should be obtained from the that all information clericals though included, specifically are Employer.” Joclin’s iden- nothing category.” tified “cas there contended that temporary em about Rosania’s ual or challenge arose If this issue alleged lay-off that his ployment”, independent the Board’s determination being seniority, only lowest in due bargaining unit, proper we should of a considering propriety attacked disposed no more to interfere with be agent, Board his statements place these two workers a decision challenge requested be should “that than was the First the unit Cir- within the substantial or that overruled Mfg. Co., in N. L. R. B. v. Clarostat cuit in a resolved factual issues material (1954), on which the Board Recognizing hearing.” the need full But Board was here the not mak- relies. expedition in certification matters determination; independent imposing justifies “reason construing may, a contract. There was a to the allowance .able of conditions agree- course, where the be situations objections”, hearing N. L. R. B. v. on company and between un- ment reached Storage Inc., 74, 297 F.2d O. K. Van bargaining unit ion as 1961), (5 Cir., a think like Ro we case not the Board be enforced be- should prima employee who sania’s —an was improperly disenfranchises em- cause sought eligible and is dis be facie Enterprises ployees, see Shoreline developments qualified because of after America, supra, L. R. v. N. B. Inc. alleged and an mental atti the election nothing 944-946; F.2d at would in- private in tude a interview with disclosed case, a this to be such dicate agent squarely within a Board —comes agreement is on which event the the Regulations requires the a Board’s language relying. The Board is on its Company’s upon request. the “excluding office, pro- clerical and face — suggest employees” also The Board erred in not fessional —does overruling challenges “plant the clericals” were to be that in- cluded; exception Rollins and to Rita Isabelle Palukis. no words since together ladies, a These who have been needed to exclude would “of- pro category “pro- “crib” middle located clericals” from fice it, employees”, but screened off from re- duction area duction and although August also noted that The Director “the Com- was stated as late pany possibility.” when is unable to state he will be again future, employed in the foreseeable in Stupski is none. This Celia and specific exclusion from the inference applies now deed the test that the “office” comma between and the clericals employees deter in its own plant summer that even be would and “clerical” bargaining unit. See mination of a excluded to be intended clericals were Certainly Corp., 118 N. Brown-Forman Distillers bargaining unit.6 overruling (1957), clearly L.R.B. 454 include stipulation not —as did Towing Co., 122 made clear in unit; Belcher am- if it was plant clericals (1959) N.L.R.B. 1020 n. 3 practical construc- biguous, evidence —such Refining Co., 106 decisions as Atlantic ex- Joclin’s of moment. be tion would (1953), N.L.R.B. 1271-72 which alleged elec- in an earlier ceptions that expectancy of had held that a reasonable as Palukis parties had classified tion the succeeding reemployment summers clerical”, neither that an “office eligi college to render students sufficed had ever claimed ployer nor the Union Ap ble to vote. the Court of eligible, Union’s and that she granted peals opinion enforcement eligibility, advanced of Rollins’ claim Towing decision the Board’s Belcher election, on fact that rested after the “succeeding apparently assumed that the type produc- particular she issued applied, summers” test still types from different tion material (5 Cir., 1960), we do not take this as con- Palukis. handled rejection of Brown-Forman rule. cerning concluded these two again Board failed to' here But “If evi- with the statement: recognize appli that the considerations desired, is it is dence submitted bargaining it itself defines a cable when full in a should be resolved factual issue unit, as in Brown-Forman and Belcher hearing”, “the otherwise Towing, the same those as should be sustained.” We these votes interprets stip agree. control when it here, ulation for a consent This leaves for considera primary question where what the Stupski, of Celia tion the votes two parties stipulation meant. Since the college students, whose ballots were local literally provided for inclusion Director. The payroll during all workers employer’s submission was that Celia period except expressly test those ex substantially full time from had worked college cluded, and students were not so mid-September 1960; early until June excluded, argued that, it can be whether expected to do the same might prop or not the Director and had done the week so end erly have insisted amendment of 1961; Stupski was em stipulation them, to exclude it was period ployed on full time basis for apply error Brown-Forman rule expected to exceed three months in stipulation However, as written. anticipated that he and “it is will return policy think we Board this issue to be summers to successive work for sufficiently crystallized that, so unless period of time.” The similar stipulation provides explicitly stating Director, that “summer students eligibility summer who ineligible expectation forthcoming the Board to be ab per are held have no agreement expectancy employment, manent reasonable of forth sent incorporating should be construed as regular coming employment”, found that that, cited in the cases stipulation noted differs from the thus It 5. 6. Board, detailed definitions which answered the item us Union’s thought evidently to effect needed “Description Involved”: Unit “plant incorporation clericals” “Included production workers. See with unit and maintenance em- “All Mfg. supra, Co., B. v. Clarostat ployees R. N. D. Mfg. Co., 526; Girton “Excluded (1960); In Florida Tile clerical, professional employees, NLRB “Office (1901). Inc., dustries, NLRB guards supervisors as defined in the Act.” excluding such rule and PLOUGH, INC., Appellant, no error ployees. thus There was Stupski. ruling Celia as to LABORATORIES, Corporation, KREIS er- shown Since al., Appellees. et entitling it issues or factual Tors lawof No. 17719. Regula Board’s under ato employees in respect four with tions Appeals United States Court of won reported have been Ninth an election Circuit. enforcement, deny votes, by only we two Feb. 1963. remand the order vacate Rehearing Denied March proceed appropriate further Board for prevent nothing ings. would We see advised, Board, from determin if so time, lapse that, view clearly defined more new with a bargaining unit, be held on consent proceedings, would

or other more purpose statute serve fully inquiry old into this than exceedingly close one. best and at FOR REHEARING. PETITION ON PER CURIAM. Labor Relations

The National rehearing petitioned for Board has ground that our discussion of the n with Rita Rollins ex Palukis relied to some and Isabelle presence of a comma between tent on the “office” and “clerical” in the the words n stipulation stipu for an election. The printed in was so the Board’s brief lation joint appendix but the Board us that advises comma was a now Apart typographical error. regard comma, stipu we would still sufficiently ambiguous lation re spect to Rollins and Palukis to warrant employer’s request submit ex although evidence, this will have trinsic Pope, Judge, Circuit dissented. probative stipula be more than if the read as tion had were told. we Remand required event since if even of Rollins the votes and Palukis should properly prove counted, have been counting ballot, of Ursini’s which was erroneously excluded, Rosania’s, and of hearing been, show to have might produce a tie. opinion is modified to the extent

indicated; rehearing denied.

Case Details

Case Name: National Labor Relations Board v. The Joclin Manufacturing Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 1, 1963

Citation: 314 F.2d 627

Docket Number: 154, Docket 27675

Court Abbreviation: 2d Cir.