A consent election of a collective bargaining agent under the
National Labor Relations Act was held pursuant to an agreement
between the employer and the union providing that the regional
director of the National Labor Relations Board should supervise the
election and that his determination on any question of eligibility
of voters should be final. The employer provided a list of eligible
employees, and had observers at the polls with the right to
challenge the eligibility of voters. After the union had been
elected by a close vote and the results had been announced, the
employer sought to challenge the eligibility of a voter included in
the list it had furnished and whose eligibility was unchallenged at
the polls. This, together with a vote challenged by the union and
not counted, might have changed the result. The regional director
found that the employer had waived its right to challenge the vote
or to object to the election on this ground, and that the union had
received a majority of the valid votes cast. The employer refused
to bargain with the union on the ground that it had not been
validly elected. The Board sustained the regional director's
finding as being in accord with its established policy, and ordered
the employer to bargain with the union.
1. The Board's order is sustained. P. 329 U. S.
2. A proper application of the rule prohibiting post-election
challenges, even though the result of the election might have been
different had the challenge been made and sustained, did not
deprive the Board of jurisdiction to find the employer guilty of an
unfair labor practice in refusing to bargain with the union. P.
329 U. S.
3. The rule forbidding the eligibility of a voter to be
challenged after the votes have been cast is in accordance with the
National Labor Relations Act and the principle of majority rule,
and is justified by practical considerations. Pp. 329 U. S.
4. The fact that the employer may have been honestly mistaken as
to the eligibility of the voter is no justification for
disregarding the rule. P. 329 U. S.
Page 329 U. S. 325
5. A provision in the agreement for the election as to the
filing of objections "to the conduct of the ballot" and "to a
determination of representatives based on the results thereof"
within five days after issuance of the "Tally of Ballots" did not
constitute a waiver of the rule, since there is a clear distinction
between objections and challenges in electoral parlance. P.
329 U. S.
6. In the absence of evidence that the representatives of the
Board and the employer discriminated against anti-union employees
in preparing the eligibility list or in raising timely eligibility
issues, it cannot be said that the interests of anti-union
employees were inadequately represented. Pp. 329 U. S.
152 F.2d 275, reversed.
The National Labor Relations Board sustained the validity of the
election of a union as a collective bargaining representative and
ordered the employer to bargain with it. 60 N.L.R.B. 1414. The
Circuit Court of Appeals set aside the order. 1521.2d 275. This
Court granted certiorari. 328 U.S. 827. Reversed,
329 U. S.
MR. JUSTICE MURPHY delivered the opinion of the Court.
The issue here concerns the procedure used in elections under
the National Labor Relations Act [Footnote 1
] in which employees choose a statutory
representative for purposes of collective bargaining. Specifically,
we must determine the propriety of the National Labor Relations
Board's refusal to accept an employer's post-election challenge
Page 329 U. S. 326
the eligibility of a voter who participated in a consent
The respondent and a union entered into an agreement to conduct
an election by secret ballot on May 5, 1944, under the supervision
of the Board's regional director, to determine whether the
employees at respondent's Roxbury plant in the unit defined in the
agreement desired to be represented by the union. The agreement was
approved by the regional director, and provided that the election
was to be held "in accordance with the National Labor Relations
Act, the Board's Rules and Regulations, and the customary
procedures and policies of the Board."
The agreement set forth the qualifications for participation in
the election. Only those who appeared on the payroll on April 21,
1944, were eligible; included were those employees who did not work
at the time because they were ill, or on vacation, or temporarily
laid off, or in the armed forces. The respondent had the duty of
furnishing the regional director with an accurate list of the
eligible voters, together with a list of the ineligible employees.
] The list of
eligible voters was duly submitted on May 1, 1944.
The agreement further provided that both the union and the
respondent could have observers at the polling places to assist in
the handling of the election, to challenge the eligibility of
voters, and to verify the tally. If challenges were made and if
they were determinative of the results of the election, the
regional director was to investigate the challenges and issue a
report thereon. All objections "to the conduct of the ballot" or
"to a determination of representatives based on the results
thereof" were to be filed with the regional director within five
days after issuance of the "Tally of Ballots." If the regional
Page 329 U. S. 327
sustained the objections, he had the power to void the results
and order a new election. The determination of the regional
director was to be final and binding upon any question, "including
questions as to the eligibility of voters, raised by any party
hereto relating in any manner to the election." Cf.
Article III, §§ 10 and 12, of the Board's Rules and Regulations
(Series 3, effective Nov. 26, 1943).
The balloting took place on May 5 in accordance with this
agreement. After the ballots were counted, the union and the
respondent signed a "Tally of Ballots," in which the regional
director certified that, of the 230 valid votes counted, 116 were
cast for the union and 114 against it, with one other ballot being
challenged by the union. [Footnote
] Four days later, on May 9, respondent's counsel wrote the
regional director that, subsequent to the election,
"it came to the attention of the management of the Company that
Mrs. Jennie A. Kane, one of the persons who voted at the election,
was not at the time an employee of the Company. [Footnote 4
The letter explained that Mrs. Kane was employed by respondent
from March 16, 1943, through March 24, 1944, but that, after the
latter date, she had never reported again for work, and had never
appeared at the plant except for purpose of voting on May 5. It
Page 329 U. S. 328
was admitted that the respondent,
"not being advised by Mrs. Kane of any intention on her part to
leave their employ, assumed that she was ill, and continued her
among their list of employees, and therefore did not exclude her
from the list of employees they believed eligible to vote."
The letter accordingly challenged Mrs. Kane's right to vote, as
well as the ballot cast by her. A hearing was requested for the
purpose of passing upon the one ballot challenged by the union. If
that challenge were not sustained and the ballot proved to be a
vote against the union, Mrs. Kane's ballot would become material to
the result of the election; on that condition, the respondent
requested a hearing on its challenge to Mrs. Kane's vote.
A hearing on the matters raised by this letter was held before
the regional director. He subsequently made a report in which he
found that respondent included Mrs. Kane's name on the list of
eligible voters submitted on May 1 on the assumption that she was
ill and had not quit her job; that respondent made no attempt
between May 1 and May 5 to remove Mrs. Kane's name from the list,
although, prior to the election, respondent received by mail a
notice of Mrs. Kane's claim for unemployment compensation; that
respondent's observers at the polls had not challenged Mrs. Kane
when she voted in their presence, and that these observers
certified before the ballots were counted that the election had
been properly conducted. The regional director also found that the
evidence was conflicting as to Mrs. Kane's actual status. [Footnote 5
] But he concluded that,
under the circumstances, the respondent had
Page 329 U. S. 329
waived its right to challenge her vote or to object to the
election on this ground. This determination made it unnecessary for
him to rule on the ballot previously challenged by the union, since
it could not affect the result. He thus found that the union had
received a majority of the valid votes cast, and was the exclusive
representative of the employees in the appropriate unit.
The respondent thereafter refused to bargain with the union in
question. Upon a complaint issued by the Board, the respondent
admitted its refusal, but denied that the union had ever been
designated by a majority of the employees in the appropriate unit.
It asserted that the election of May 5 was inconclusive on the
subject, because, if Mrs. Kane's ballot were subtracted from the
union's total and if the ballot challenged by the union were opened
upon overruling the challenge and proved to be against the union,
the outcome of the election would be a tie vote. The Board, after
the usual proceedings, held that it would not disturb the rulings
of a regional director on questions arising out of a consent
election "unless such rulings appear to be unsupported by
substantial evidence or are arbitrary or capricious," and that no
such grounds for disturbing the ruling were present in the instant
case. As an alternative ground for its action, the Board held that
the regional director's refusal under the Circumstances to permit
an attack on Mrs. Kane's status as a voter after the results
Page 329 U. S. 330
of the election had been announced "is in complete accord with
the established principles and policy of the Board" -- which
excluded post-election challenges
"because of our belief that, otherwise, an election could be
converted from a definitive resolution of preference into a
protracted resolution of objections disregarded or suppressed
against the contingency of an adverse result."
See also Matter of Norris, Inc.,
63 N.L.R.B. 502, 512.
The Board accordingly ordered respondent to cease and desist from
its unfair labor practice, and to take the affirmative action of
bargaining collectively with the union. 60 N.L.R.B. 1414.
The First Circuit Court of Appeals, however, set aside the
Board's order. 152 F.2d 275. It construed the Act as making it a
jurisdictional prerequisite to a determination that an employer has
committed the unfair labor practice of refusing to bargain
collectively that the union with which he has refused to deal
should have been chosen by a majority of those voting who were in
fact employees. It held that, since the vote challenged by the
union may have been cast against it, and since Mrs. Kane was not
found to have been an employee on the crucial date, there may have
been a tie vote, and the Board was without jurisdiction to find the
respondent guilty of a violation of § 8(5). We granted certiorari,
328 U.S. 827, because of the importance of the matter in the
administration of the Act and because of a conflict between the
result below and that reached by the Sixth Circuit Court of Appeals
in Labor Board v. Capital Greyhound Lines,
As we have noted before, Congress has entrusted the Board with a
wide degree of discretion in establishing the procedure and
safeguards necessary to insure the fair and free choice of
bargaining representatives by employees. Southern S.S. Co. v.
Labor Board, 316 U. S. 31
316 U. S. 37
Labor Board v. Waterman S.S. Co., 309 U.
, 309 U. S. 226
Labor Board v. Falk Corporation, 308 U.
, 308 U. S. 458
Section 9(c) of the Act authorizes the Board to "Take a secret
Page 329 U. S. 331
employees, or utilize any other suitable method to ascertain
such representatives." In carrying out this task, of course, the
Board must act so as to give effect to the principle of majority
rule set forth in § 9(a), a rule that "is sanctioned by our
governmental practices, by business procedure, and by the whole
philosophy of democratic institutions." S.Rep. No. 573, 74th Cong.,
1st Sess., p. 13. It is within this democratic framework that the
Board must adopt policies and promulgate rules and regulations in
order that employees' votes may be recorded accurately,
efficiently, and speedily.
The principle of majority rule, however, does not foreclose
practical adjustments designed to protect the election machinery
from the ever-present dangers of abuse and fraud. Indeed, unless
such adjustments are made, the democratic process may be perverted,
and the election may fail to reflect the will of the majority of
the electorate. One of the commonest protective devices is to
require that challenges to the eligibility of voters be made prior
to the actual casting of ballots, so that all uncontested votes are
given absolute finality. In political elections, this device often
involves registration lists which are closed some time prior to
election day; all challenges as to registrants must be made during
the intervening period or at the polls. Thereafter, it is too late.
The fact that cutting off the right to challenge conceivably may
result in the counting of some ineligible votes is thought to be
far outweighed by the dangers attendant upon the allowance of
indiscriminate challenges after the election. To permit such
challenges, it is said, would invade the secrecy of the ballot,
destroy the finality of the election result, invite unwarranted and
dilatory claims by defeated candidates, and
"keep perpetually before the courts the same excitements,
strifes, and animosities which characterize the hustings, and which
ought, for the peace of the community and the safety and stability
of our institutions, to terminate with
Page 329 U. S. 332
the close of the polls."
Cooley, Constitutional Limitations (8th Ed., 1927), p. 1416.
Long experience has demonstrated the fairness and
efficaciousness of the general rule that, once a ballot has been
cast without challenge and its identity has been lost, its validity
cannot later be challenged. This rule is universally recognized as
consistent with the democratic process. And it is generally
followed in corporate elections. The Board's adoption of the rule
in elections under the National Labor Relations Act is therefore in
accord with the principles which Congress indicated should be used
in securing the fair and free choice of collective bargaining
Moreover, the rule in question is one that is peculiarly
appropriate to the situations confronting the Board in these
elections. In an atmosphere that may be charged with animosity,
post-election challenges would tempt a losing union or an employer
to make undue attacks on the eligibility of voters so as to delay
the finality and statutory effect of the election results. Such
challenges would also extend an opportunity for the inclusion of
ineligible pro-union or anti-union men on the payroll list in the
hope that they might escape challenge before voting, thereafter
giving rise to a charge that the election was void because of their
ineligibility and the possibility that they had voted with the
majority, and were a decisive factor. The privacy of the voting
process, which is of great importance in the industrial world,
would frequently be destroyed by post-election challenges. And
voters would often incur union or employer disfavor through their
reaction to the inquiries.
We are unable to say, therefore, that the Board's prohibition of
post-election challenges is without justification in law or in
reason. It gives a desirable and necessary finality to elections,
yet affords all interested parties a reasonable period in which to
challenge the eligibility of
Page 329 U. S. 333
any voter. And an exception to the rule is recognized where the
Board's agents or the parties benefiting from the Board's refusal
to entertain the issue know of the voter's ineligibility and
suppress the facts. [Footnote
] The Board thus appears to apply the prohibition fairly and
equitably in light of the realities involved.
The reliance of the court below upon the asserted jurisdictional
requirement was misplaced. It is true that it is an unfair labor
practice for an employer to refuse to bargain with a union only if
that union was chosen by a majority of the voting employees. But
the determination of whether a majority in fact voted for the union
must be made in accordance with such formal rules of procedure as
the Board may find necessary to adopt in the sound exercise of its
discretion. The rule prohibiting post-election challenges is one of
those rules. When it is applied properly, it cannot deprive the
Board of jurisdiction to find an unlawful failure to bargain
collectively. That is true even where it subsequently is
ascertainable that some of the votes cast were in fact ineligible,
and that the result of the election might have been different had
the truth previously been known. The rule does not pretend to be an
absolute guarantee that only those votes will be counted which are
in fact eligible. It is simply a justifiable and reasonable
adjustment of the democratic process.
There is no basis in the instant case for disregarding the
Board's policy in this respect. The fact that the respondent may
have been honestly mistaken as to the status of Mrs. Kane has no
relevance whatever to the justification for the use of the policy.
And nothing in the consent agreement constituted a waiver of the
policy by the Board. On the contrary, the agreement expressly
stated that the election was to be held in accordance with "the
Page 329 U. S. 334
procedures and policies of the Board," which would include the
policy prohibiting post-election challenges. The provision as to
the filing of objections "to the conduct of the ballot" and "to a
determination of representatives based on the results thereof"
within five days after issuance of the "Tally of Ballots" -- a
provision which was quite separate from that relating to challenges
-- obviously has no application here. Objections and challenges are
two different things in electoral parlance. Objections relate to
the working of the election mechanism and to the process of
counting the ballots accurately and fairly. Challenges, on the
other hand, concern the eligibility of prospective voters. The
Board uses this clear distinction as a matter of policy, and we are
not free to disregard it. [Footnote
Neither the record in this case nor the past history of the
policy against post-election challenges justifies an assumption
that the interests of the anti-union employees in this election
were inadequately protected. Due notice of the manner and conduct
of the election was given to all employees, and, despite the lack
of any affirmative provisions in the consent agreement, there was
no indication that any of the employees were prohibited from
examining the eligibility list or from challenging any prospective
voter. Nor was there competent evidence that any anti-union
employee made any objection, either before or after the election,
to the procedure adopted or to the casting of any ballots.
] Moreover, the
representatives of the
Page 329 U. S. 335
Board, as well as those of the respondent, were bound to perform
their electoral functions on behalf of all employees, including
those with anti-union sentiments. In the absence of any evidence
that such representatives discriminated against the anti-union
employees in preparing the eligibility list or in raising timely
eligibility issues, we cannot say that the interests of those
employees were inadequately represented.
Since we rest our decision solely on the propriety of the
Board's policy against post-election challenges, it is unnecessary
to discuss the effect to be given by the Board to the regional
director's ruling that the respondent waived its right to challenge
Mrs. Kane's vote or the effect to be given to the terms of the
consent election agreement apart from the general policy.
It follows that the court below erred in refusing to enforce the
Board's order in full.
MR. JUSTICE FRANKFURTER concurs in the result.
49 Stat. 449, 29 U.S.C. § 151 et seq.
Among the ineligible persons were those who had quit or been
discharged for cause and had not been rehired or reinstated prior
to the date of the election.
It was unnecessary to rule on the challenged ballot, since it
could not affect the result of the election, even though the ballot
proved to be against the union
The letter recited that
"it has now come to their attention, however that, on April 28,
1944, Mrs. Kane filed with the Division of Employment Security of
the Massachusetts a claim for unemployment benefits, stating, in
connection with that claim, that she had left the employ of the A.
J. Tower Company in March, 1944, and that her reason for leaving
was that she 'could not continue to do heavy work of carrying
bundles which was part of her job.' The Company has also learned
that, on the same day, April 28, 1944, Mrs. Kane visited the United
States Employment Office and was placed on its list of persons
available for employment."
An agent of the Board interviewed Mrs. Kane, and was told by her
"On April 28, 1944, I applied for Unemployment Compensation
benefits, thinking I was entitled to such because of my illness. At
no time, prior or since, have I considered myself not an employee
of the A. J. Tower Co. I have never requested my release of the A.
J. Tower Co., and, in fact, I intend to return to the Company when
I have regained my strength. I did not think my application for
unemployment benefits would be considered a termination from the
Company. . . . On May 5, 1944, when I presented myself at the
election polls at the A. J. Tower Co., I considered myself as an
employee of the Company, and therefore entitled to cast a ballot. I
still consider myself an employee of the A. J. Tower Co."
But the regional director pointed out that, despite this
statement, subsequent investigation confirmed the fact that Mrs.
Kane advised the Division of Employment Security on April 28, 1944,
that she had left her employment with the respondent in March
because of the heavy work in carrying bundles. See
note 4 supra.
See Matter of Wayne Hale,
62 N.L.R.B. 1393; Matter
of Beggs & Cobb, Inc.,
"The Board follows a policy of differentiating between
objections to the conduct of an election and challenges [to] the
eligibility of voters, and it does not ordinarily permit challenges
under the guise of objections after the election."
Matter of Norris, Inc.,
63 N.L.R.B. 502, 512. Cf.
Matter of Great Lakes Steel Corporation,
15 N.L.R.B. 510.
The respondent's factory superintendent testified that an
unidentified employee came to him and "objected to the vote of this
Jennie Kane" several days after the election, and even longer after
the receipt by respondent of the notice of Mrs. Kane's unemployment
compensation claim, which had been mailed to respondent before the
election. This testimony was admitted merely to show "how the
company became interested in the question" of Mrs. Kane's
eligibility. The Board, of course, was not compelled to accept this
testimony as proof of an objection to Mrs. Kane's vote by an
anti-union employee, or as an indication that the interests of
anti-union employees may have been inadequately represented.
MR. JUSTICE JACKSON, dissenting.
If the only interests affected were the complaining employer and
the victorious union, I should agree with the Court's decision. But
there is a third, and, as usual, a forgotten, interest here --
those employees who did not want to be represented by the
The election was held by agreement between the employer and the
union which was seeking to organize the plant. The Company was to
furnish a list of eligible
Page 329 U. S. 336
voters. The Company and the union were each to have observers
attend, with the right to challenge the voters. The agreement did
not give anti-organization employees either observers or the right
to challenge. The certified result of 116 union against 114
anti-union votes was reached by not counting a ballot which the
union challenged and by counting the ballot which the Company now
points out was probably invalid. Mrs. Kane's vote, no matter
whether valid or invalid, is thus allowed to decide the
It is in evidence and undisputed that, after the election, an
employee -- presumably anti-union, from the circumstance that he
was objecting -- raised the question that Mrs. Kane, who was
carried on the Company's eligible list because the Company believed
she was absent for illness -- had, in fact, left the employ of the
Company with no intention to return. If that is true, she was not a
But, because there was no challenge at the time her ballot was
cast, the Court holds there can be no inquiry into its validity.
Comparison with the practice at general public elections is
specious, for, in those elections, every citizen has a right of
challenge, and registration lists usually are made up and available
in advance. No comparable safeguards for the employees opposed to
the union appear to exist here, though both the employer and the
union were protected.
The Court takes the position that, although every other interest
has affirmative protection, there is no necessity for similar
affirmative protection to the anti-union employees. Despite the
fact that both of the contracting parties were careful to provide
such protection for themselves, the Court assumes it is unnecessary
for the third interest. The Court says that, in the absence of
evidence, it will assume that such interests were adequately
represented at the same time closing the door to hearing
Page 329 U. S. 337
as to whether those interests were prejudiced unless those who
are denied affirmative representation or challenge rights should
have made affirmative objection before the wrong was consummated by
casting the illegal ballot. And, of course, the members of such a
minority have no standing to bring their problems either to the
Board or to the Court. We hear of their grievance, if at all, only
through its being identical with some complaint which the employer
The Court fears that to permit inquiry into the validity of Mrs.
Kane's vote would "extend an opportunity for the inclusion of
ineligible pro-union or anti-union men on the payroll list" who
would be challenged after the election in the hope of voiding an
unwanted result. Of course, there are opportunities for
manipulation of such a list, for collusion between employer and
favored groups, for fraud, and for honest mistakes.
But if the Court is concerned to keep the elections pure, why
close the door to proof of such corruption or mistake when it
operates against an anti-union group, because it has not been
challenged by one of the parties to it: to-wit, the employer? In
the usual election, it may be desirable to put an end to challenges
at the time when the ballots become intermingled and
indistinguishable. But, to justify cutting off inquiry, it should
appear that all persons interested in the election have had
adequate opportunity to question the ballots cast. As long as no
such provision is made for employees who are opposed to
organization, I would protect their rights by allowing
post-election challenges on such grounds as are urged here.
Of course, the protection this gives is far from satisfactory.
The challenge must be initiated by the parties the Board recognizes
-- the employer or the union. But there will be some instances in
which their interest coincides with that of the anti-union
employees. On the other hand, I can scarcely think of a more
perfect device for
Page 329 U. S. 338
encouraging unscrupulousness than to invest it with finality
against all inquiry, either by the Board or the courts. Here, half
the employees are forced to accept union representation as the
result of an election in which they were not allowed to protect the
ballot, and those who were failed to do so. If I really wanted to
discourage fraud, collusion, and mistakes, and protect the
integrity of elections and the rights of both minority and
majority, I should hold that such elections can be looked into
whenever irregularity appears to have affected the result.