U-Haul Company of Nevada, Inc. v. N.L.R.B.
| Decision Date | 22 June 2007 |
| Docket Number | No. 06-1195.,No. 05-1464.,05-1464.,06-1195. |
| Citation | 490 F.3d 957 |
| Parties | U-HAUL COMPANY OF NEVADA, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Association of Machinists and Aerospace Workers, Local Lodge 845, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Ronald E. Meisburg, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Meredith Jason, Attorney.
David A. Rosenfeld was on the brief for intervenor International Association of Machinists and Aerospace Workers, Local Lodge 845.
Before: GINSBURG, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
U-Haul Company of Nevada, Inc. petitions for review of a Decision and Order of the National Labor Relations Board directing the Company to recognize and bargain with the International Association of Machinists and Aerospace Workers Local Lodge 845, AFL-CIO. U-Haul claims (1) the General Counsel of the Board abused his discretion in refusing to consolidate this case with another case involving the same parties and, (2) because the Union upset the "laboratory conditions" necessary for a valid representation election, U-Haul's refusal to bargain with the Union did not violate the National Labor Relations Act. The Board has cross-applied for enforcement of its Order and the Union has intervened in support of the Board. We uphold the Board's Decision and Order in all respects.
In March 2003 the Union petitioned for a representation election at U-Haul's repair facilities in Henderson and Las Vegas, Nevada. When the election was held that May, 77 ballots were cast, 47 for the Union, 25 against the Union, and 5 that were challenged.
U-Haul filed objections to the election, arguing that the Union had:
• Promised to waive the initiation fees for employees who joined the Union before the election;
• Misrepresented the extent of its support among employees by forging signatures on a petition and making "last minute representations" to employees in the form of a document erroneously "guaranteeing" the Company could not lawfully close or threaten to close the shop if the Union won the election;
• Created the appearance that the Board favored the Union when an active Union supporter greeted the Board's agent overseeing the election like a long-lost friend; and
• Engaged in unlawful electioneering when the Union's election observer smiled at and made "thumbs-up" gestures to voters in the polling place, and when Union officials conversed with six or seven voters in a parking lot near the polling place immediately before they went in to vote.
The Company also objects that, even if no one of the foregoing activities was sufficient to upset the laboratory conditions necessary for a valid election, in the aggregate they surely were. See Gen. Shoe Corp., 77 NLRB 124, 127 (1948) (), enf'd, 192 F.2d 504 (6th Cir.1951).
A hearing officer, after taking testimony, recommended that the Board overrule U-Haul's objections and certify the Union as the exclusive bargaining representative of the employees. U-Haul filed exceptions with the Board, which rejected them, adopted the findings and recommendations of the hearing officer, and certified the Union.
When U-Haul thereafter refused to bargain, the Union filed an unfair labor practice charge alleging the Company had violated Sections 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5). The General Counsel filed a complaint, which U-Haul answered with the argument that it had no obligation to bargain because the election was invalid. The General Counsel moved for summary judgment, which U-Haul opposed on the grounds that the hearing officer was biased and this case should have been consolidated with another proceeding involving the Union, the Company, and its parent, U-Haul International, Inc.
The Board concluded the hearing officer was not biased and the General Counsel had not abused his discretion because the other proceeding against U-Haul involved separate and distinct violations. Accordingly, the Board held the Company had "engaged in unfair labor practices ... within the meaning of Section[s] 8(a)(5) and (1)" and ordered U-Haul to cease and desist from refusing to bargain and to bargain with the Union upon request.
In its petition for review, U-Haul renews its arguments that (1) the General Counsel abused his discretion by failing to consolidate this proceeding with the other unfair labor practice case against the Company (2) the Company did not unlawfully refuse to bargain because the election was invalid for each of the reasons epitomized above, and (3) the hearing officer was biased to the point of depriving U-Haul of due process.
We review the Board's Decision and Order for abuse of discretion. See Canadian Am. Oil Co. v. NLRB, 82 F.3d 469, 473 (D.C.Cir.1996). "On questions regarding representation, we accord the Board an especially wide degree of discretion." Id. (internal quotation marks and citation omitted). We review the Board's factual findings for substantial evidence. See Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C.Cir.1997). We will set aside a representation election only if the petitioning party "demonstrate[s] that the conduct complained of interfered with the employees' exercise of free choice to such an extent that it materially affected the election." C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C.Cir.1988).
U-Haul argues in limine that the Board should have dismissed the complaint with which the General Counsel initiated this case because he abused his discretion by "arbitrarily fail[ing] to consolidate contemporaneous charges" against the Company. The Board rejected that argument on the ground that under Service Employees, Local 87 (Cresleigh Mgmt.), 324 NLRB 774 (1997), consolidation is required only in "situations where the General Counsel is attempting to twice litigate the same act or conduct as a violation of different sections of the Act, or to relitigate the same charge in different cases." The charges at issue in the two cases against U-Haul are distinct: The instant case involves U-Haul's technical refusal to bargain after the Union was certified as the bargaining representative of the employees, which the Company claims was justified by misconduct on the part of the Union. The other proceeding, in contrast, involves various alleged pre-election unfair labor practices on the part of U-Haul, for which the General Counsel is seeking a remedial bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), on the ground that the Company irremediably destroyed the possibility of holding a valid second election. In addition, the Board pointed out that consolidation would unnecessarily delay disposition of the post-election case, see Cresleigh Mgmt., 324 NLRB at 775, until the more complicated pre-election complaint is resolved.
For the reasons given by the Board, we conclude the General Counsel did not abuse his discretion in pursuing the complaints against U-Haul in separate proceedings. Accordingly, we turn to the merits of U-Haul's arguments for setting aside the election.
U-Haul's burden is to show that Union misconduct "interfered with the employees' exercise of free choice to such an extent that it materially affected the election," C.J. Krehbiel Co., 844 F.2d at 882. To that end, the Company argues first that the Union's promise to waive initiation fees for employees who joined the Union prior to the election is "objectionable, as it creates the false impression of employee support and a sense of obligation to the Union," see NLRB v. Savair Mfg. Co., 414 U.S. 270, 277-78, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973).
This argument rests upon the faulty premise that the Union's offer was conditioned upon the employee joining the Union prior to the election. The hearing officer specifically found the Union offered, in writing and orally at meetings, to waive the initiation fees for, as stated in a Union flyer, "all employees who join ... in a newly organized shop," not only for those who joined before the election. This put the Union's offer squarely within the category deemed permissible in Savair, 414 U.S. at 272 n. 4, 94 S.Ct. 495; see Majestic Star Casino, LLC v. NLRB, 373 F.3d 1345, 1349 (D.C.Cir.2004) ().
Substantial evidence supports the hearing officer's finding that the waiver of fees was not conditioned upon the employee's demonstrated support for the Union. Several employees testified that one or another Union supporter told them the fee waiver was conditioned upon support for the Union. The hearing officer, however, found that none of the testimony credibly supports that claim and, although there was testimony suggesting that one employee, Don Collette, who was an enthusiastic Union supporter, made such statements to two other employees, the hearing officer found Collette's denial more credible than the conflicting testimony. The hearing officer reasoned it was "inherently implausible" that Collette was making statements to...
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