578 F.2d 1304 (9th Cir. 1978), 76-3422, N.L.R.B. v. Adrian Belt Co.

Docket Nº:76-3422.
Citation:578 F.2d 1304
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADRIAN BELT COMPANY, Hollywood Leather Creations, Harry Goldberg Belt Company, Inc., Jolie Belts, Inc., Mahler Sales Co., Inc. and Patricia Belt Company, Respondents.
Case Date:July 27, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1304

578 F.2d 1304 (9th Cir. 1978)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

ADRIAN BELT COMPANY, Hollywood Leather Creations, Harry

Goldberg Belt Company, Inc., Jolie Belts, Inc.,

Mahler Sales Co., Inc. and Patricia Belt

Company, Respondents.

No. 76-3422.

United States Court of Appeals, Ninth Circuit

July 27, 1978

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[Copyrighted Material Omitted]

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        Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for N. L. R. B.

        Stephen A. Mazurak, of Rexon & Mazurak, Los Angeles, Cal., for respondents.

        On Application for Enforcement of an Order of The National Labor Relations Board.

        Before CHAMBERS and HUG, Circuit Judges, and FERGUSON, [*] District Judge.

        PER CURIAM:

        The National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act (29 U.S.C. § 151, et seq.), has applied for enforcement of its order (224 NLRB No. 167) finding that the respondent companies violated §§ 8(a) (5) and (1) of the Act by refusing to bargain with the union 1 which had been certified by the Board as the exclusive bargaining agent for the respondents' employees. This court has jurisdiction over the proceedings because the alleged unfair labor practice occurred in Los Angeles where respondents conduct their manufacturing operations. We grant the application for enforcement.

        The respondents, as members of the California Apparel Accessory Association, Inc., have been bound by a series of master collective bargaining agreements with the union. The latest agreement expired in October, 1974. In July, 1974, the respondents, seeking to determine whether the union still represented a majority of their employees, filed representation petitions with the Board. The Regional Director then ordered that a secret ballot election be conducted in the appropriate bargaining unit. 2 The election was held in November, 1974, and resulted in 42 votes for the union and 36 against. In addition, there were 11 challenged ballots, a sufficient number to

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affect the results of the election. As a further challenge to the election the respondents filed objections charging that improper conduct by union representatives had affected the voting.

        After investigation of both the ballot challenges and the objections, the Regional Director issued a supplemental decision and order in which he

        (1) sustained the union's challenges to the ballots of Luis Beltran and Robert Garcia on the ground that they were supervisors and were therefore not included in the bargaining unit,

        (2) overruled the challenge to the ballot of Beatrice Polanco on the ground that as a plant clerical employee she shared a community of interest with the unit employees and was therefore entitled to vote,

        (3) directed that a hearing be held on the question of Yvonne King's eligibility to vote in the event that her ballot became determinative,

        (4) overruled the union's challenges to 7 other ballots, and

        (5) overruled all of the respondents' charges of improper conduct.

        The respondents filed a request for review with the Board, claiming that the Regional Director erred in his rulings regarding Beltran, Garcia, Polanco and King. No review was sought with respect to the other rulings of the Regional Director. The Board denied the respondents' request on the ground that it raised no substantial issues warranting review. Thereafter, the Regional Director issued a revised tally of ballots showing 43 votes for the union and 43 against, thereby making Yvonne King's ballot determinative.

        Pursuant to the earlier order of the Regional Director, a hearing was then held to resolve the issue of King's eligibility. Her ballot had been challenged by the Board agent who supervised the election because her name did not appear on the eligibility list submitted by her employer. The employer contended that King had been terminated prior to the election; the union contended that she was merely on a leave of absence and that she should properly be considered an employee for purposes of the representation election. The hearing officer held that the union's position was correct and that King was eligible to vote.

        Following the hearing the Regional Director issued his second supplemental decision and order wherein he adopted the hearing officer's findings and accordingly overruled the objection to King's ballot. Respondents filed a request for review with the Board regarding the decision; however, the Board again denied the request on the ground that it raised no issue warranting review. The Regional Director, after counting King's ballot, then issued a second revised tally showing 44 votes for the union and 43 against. Thereafter, in November, 1975, the Director certified the union as the exclusive representative of the respondents' employees in the designated unit.

        Following its certification, the union requested the respondents to bargain collectively for the purpose of negotiating a new contract. The respondents, however, refused to enter into negotiations with the union. In December, 1975, the union filed an unfair labor practice charge alleging that the respondents' failure to bargain constituted a violation of Sections 8(a)(5) and (1) of the Act. In their answer to the charge the respondents admitted their refusal to bargain and challenged the validity of the union's certification on the same grounds raised in their requests for review in the prior representation proceedings.

        Upon motion by the General Counsel, the Board granted summary judgment against the respondents on the grounds that the issues raised in the unfair labor practice proceeding had been litigated and determined adversely to them in the earlier proceedings; that they had not offered any newly discovered evidence or specific circumstances warranting reexamination of the prior rulings; and that, therefore, there were no material issues which were properly litigable in the unfair practice proceeding. Accordingly, the Board found the companies in violation of §§ 8(a)(5) and (1) and ordered them to bargain with the union.

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The respondents have filed the instant appeal from that order.

        On this appeal, the respondents once again raise the issues addressed in their petitions for review in connection with the representation proceedings. 3 If the Board's certification of the union was proper, then the respondents' refusal to bargain violates the Act, and the Board's order must be enforced. The validity of the certification depends, in turn, upon the correctness of the Board's rulings regarding the four challenged ballots of Beltran, Garcia, Polanco and King.

        The standard of review under which we must judge the propriety of the Board's decisions is a limited one. As stated recently by this court:

"(T)he Board is presumed to have a certain expertise in conducting and evaluating elections; its decisions should be deferred to unless it has committed an abuse of discretion. Findings of fact should be conclusive if supported by substantial evidence." Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

        Hecla Min. Co. v. N.L.R.B., 564 F.2d 309, 313 (9th Cir. 1977). Accordingly, we must consider each of the relevant rulings and determine whether the findings and conclusions of the Board are fairly supported by the record.

  1. Yvonne King.

            The issue raised by the challenge to Yvonne King's ballot relates to her status as an employee at the time of the election. Under Board rules, eligibility to vote in a representation election is dependent upon employment in the designated bargaining unit during the eligibility period and on the date of the election. Westchester Plastics of Ohio, Inc. v. N.L.R.B., 401 F.2d 903, 907 (6th Cir. 1968); See N.L.R.B. v. Pacific Gamble Robinson Co., 438 F.2d 112 (9th Cir. 1971). Employees on layoff or leave of absence during the relevant period, who have not quit or been terminated and who have a reasonable expectation or recall, qualify as eligible voters because of their continued ties to the employee unit. American Motors Corporation, 206 NLRB 287, 291 (1973); Miami Rivet Company, 147 NLRB 470, 483 (1964). A worker on a leave of absence continues to be regarded as an employee unless it is established by overt action or clear communication that the employment relationship has been terminated. Trailmobile Division, Pullman, Inc. v. N.L.R.B., 379 F.2d 419 (5th Cir. 1967). Cf. N.L.R.B. v. Pacific Gamble Robinson Co., supra; Bio-Science Laboratories v. N.L.R.B., 542 F.2d 505 (9th Cir. 1976).

            The Board found that Yvonne King was an employee of respondent Harvey Goldberg Belt Company, Inc., on leave of absence status at the time of the election, and that she was therefore qualified to vote. The respondents challenge the Board's decision on the grounds that it is not supported by substantial evidence and that the Board erred in refusing to seek enforcement of a subpoena to obtain records regarding King's applications for unemployment benefits.

    1. Sufficiency of the Evidence.

              The transcript of the hearing conducted to resolve the question of King's eligibility consists of five hundred and thirteen pages. Evidence presented at the hearing established the following facts:

      (1) Yvonne King had worked as a floor girl for Harry Goldberg Belt Co. since 1970.

      (2) The rate of turnover at the company was very high, and King was one of

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      the most experienced employees in the shop.

      (3) Her employer's...

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