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Diversey Corp. v. National Labor Relations Board

December 4, 1963

DIVERSEY CORPORATION, PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT.



Author: Knoch

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

KNOCH, C. J.: The Diversey Corporation (hereinafter sometimes called "Diversey"), filed its petition pursuant to § 10(f), National Labor Relations Act, 29 U.S.C. § 151 et seq., to review and to set aside an order of the National Labor Relations Board issued October 29, 1962 (139 NLRB No. 45, p. 572).

In its answer the Board requests enforcement of its Order.

The Board found that Diversey violated § 8(a)(5) and (1) of the Act in refusing to bargain in good faith with Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter sometimes called the "Union"), and ordered Diversey to cease and desist from such unfair labor practice; on request, to bargain collectively with the Union; and to post the customary notices.

Diversey sets out the contested issues as:

I. Whether the Board erred as a matter of law in finding petitioner guilty of refusing to bargain while at the same time denying petitioner the right to be heard on the issue of whether it was obligated to bargain.

II. Whether the Board's Regional Director exceeded his authority by denying petitioner a hearing in the Board representation case; upon which case petitioner's obligation to bargain rests.

In January, 1962, the Union petitioned for an election at Diversey's Newark, New Jersey plant; and the Union and Diversey entered into an agreement for a consent election. The Regional Director for the Board's 22nd Region approved. The parties stipulated respecting such matters as the appropriate bargaining unit, eligible voters, date and place of election, selection of observers and manner of counting ballots. They specifically agreed that:

"The determination of the Regional Director shall be final and binding upon any question * * * raised by any party hereto relating in any manner to the election,"

and

"The method of investigation of objections and challenges, including the question whether a hearing should be held in connection therewith, shall be determined by the Regional Director, whose decision shall be final and binding."

A few days later, Diversey moved to dismiss the Union's eelction petition because Diversey officials had just learned that one of Diversey's supervisors had solicited and procured the authorization cards on which the Union had relied.

Early in February, 1962, another motion by Diversey to set aside the election agreement, alleged:

Inasmuch as the foregoing allegation rests on the supervisory status of one Carmine Armenti, and in the event the Regional Director is not satisfied that Armenti is a supervisor on the basis of the administrative investigation now being carried on, the Employer submits that the simplest and most economical method for the Government and the parties to ...


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