589 F.2d 29 (1st Cir. 1978), 78-1122, N.L.R.B. v. New England Lithographic Co., Inc.

Docket Nº:78-1122.
Citation:589 F.2d 29
Case Date:December 14, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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589 F.2d 29 (1st Cir. 1978)




No. 78-1122.

United States Court of Appeals, First Circuit

December 14, 1978

Argued Sept. 12, 1978.

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Corina Metcalf, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John H. Ferguson and Elizabeth Bunn, Attys., Washington, D. C., were on brief, for petitioner.

Carol Chandler, Boston, Mass., with whom Robert Chandler, and Stoneman, Chandler & Miller, Boston, Mass., were on brief, for respondent.

Before KUNZIG, Judge, Court of Claims, [*] BOWNES, Circuit Judge, DUMBAULD, District Judge. [**]

BOWNES, Circuit Judge.

The National Labor Relations Board (Board or NLRB) seeks enforcement of its order that New England Lithographic Co., Inc. (Company) cease and desist from engaging in the unfair labor practice found by the Board, that it bargain with the Graphic Arts International Union, Local No. 300, AFL-CIO (Union), and that it post appropriate notices. The Board found that, after a consent election, the Company refused to bargain collectively with the Union in violation of 29 U.S.C. § 158(a)(5) and (1). The Company maintains that it need not recognize the Union because two of the decisive votes were cast for the Union by ineligible temporary employees, Joseph Riley and Nicholas Costa. (Riley and Costa) This circuit is, therefore, faced for the first time with determining the standard of voting eligibility for temporary employees.

On March 30, 1976, the Union petitioned the Board for an election, which was held in the stipulated unit 1 on June 4, 1976. The results were nine votes against the Union and eight votes in favor, with four challenged ballots. Since the challenged ballots were sufficient to affect the result of the election, the Regional Director conducted an investigation of the challenges pursuant to the Board's Rules and Regulations, 29 C.F.R. § 102.69(c).

Two of the four challenges to the ballots were sustained and these ballots are not at issue here. This case involves the challenged ballots of Riley and Costa. Neither employee was included on the Company's voter eligibility list, since the Company was

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of the view that both were ineligible temporary employees. In addition, the Company maintained that Costa was discharged after the eligibility date and then rehired prior to the election so that he was not within the stipulated unit.

The Regional Director's investigation led him to conclude that Riley was not an ineligible temporary employee so he recommended that the challenge to his ballot be overruled. As to Costa's eligibility, the Regional Director suggested that a hearing be held because there were credibility issues involved.

The Company took exceptions to the Regional Director's report, arguing that a hearing should be held concerning Riley. The Board considered and rejected these exceptions, since they presented no substantial and material issues. The N.L.R.B. adopted the Regional Director's finding that Riley was an eligible voter. The Board ordered a hearing on the challenged ballot cast by Costa.

After conducting a hearing, the hearing officer recommended that the challenge to Costa's ballot be overruled. The Company filed exceptions and a supporting brief and the Union filed a Memorandum in Opposition in response. The Board adopted the hearing officer's findings with a slight modification and ordered that the ballots of Riley and Costa be opened and a revised tally prepared.

With the votes of Riley and Costa now included, the Union prevailed in the election, ten votes to nine, and was certified by the N.L.R.B. on July 7, 1977.

Because the Company refused to bargain with the Union, an unfair labor practice complaint was issued. Subsequently, General Counsel filed a Motion for Summary Judgment, which was granted by the Board on December 7, 1977. The Board found that, in its Response to Notice to Show Cause, the Company was attempting to relitigate the same issues concerning Riley and Costa which it raised in the earlier representation proceedings. The order which the Board seeks to enforce accompanied the decision.

On appeal, the Company argues that the N.L.R.B. abused its discretion in refusing to hold an evidentiary hearing regarding the voting eligibility of Riley and in finding that both Riley and Costa were not ineligible temporary employees. In addressing these issues, we are guided by the analytical framework recently set out in N. L. R. B. v. S. Prawer & Co., 584 F.2d 1099, at 1101 (1st Cir. 1978).

While many cases may be decided without detailed separate analysis of the issues to be reviewed, there is a two-tiered process involved: we review the fact findings of the Board in its petition for enforcement of its orders on the unfair labor practices complaint pursuant to the standard articulated in the statute, 29 U.S.C. § 160(e), and enunciated in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 487-488 (71 S.Ct. 456, 95 L.Ed. 456) (1951), as to whether the Board order finds substantial evidence in the record as a whole. Since Board rulings on the certification challenge are not reviewable directly, A. F. L. v. N. L. R. B., 308 U.S. 401, 406 (60 S.Ct. 300, 84 L.Ed. 347) (1940), but only to the extent that the unfair labor practices complaint rests upon them, Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 154 (61 S.Ct. 908, 85 L.Ed. 1251) (1941), our standard of review on that question is restricted to an analysis of whether the Board abused its discretion in certifying the election. N. L. R. B. v. O. S. Walker Co., Inc., 469 F.2d 813, 817 (1st Cir. 1972). We also determine whether the Company's assertion that it was denied due process has merit. Pittsburgh Plate Glass Co. v. N. L. R. B., supra, 313 U.S. at 154-155 (61 S.Ct. 908).

The National Labor Relations Act § 9(c), 29 U.S.C. § 159(c), vests in the Board the power to conduct and investigate union elections. This power is not of a specific, circumscribed nature, but is far ranging as the Court noted in N. L. R. B. v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946). "As we have noted before, Congress has entrusted the Board with a wide degree of discretion in

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establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees." (citations omitted). Pursuant to this grant of authority, the Board established guidelines to determine voter eligibility. As a general rule, an employee must work during the period, including the eligibility date and the election date, to vote in a representation election. N. L. R. B. v. Adrian Belt Co., No. 76-3422, 578 F.2d 1304, 1308 (9th Cir. 1978); Westchester Plastics of Ohio, Inc. v. N. L. R. B., 401 F.2d 903, 907 (6th Cir. 1968); Macy's Missouri-Kansas Division v. N. L. R. B., 389 F.2d 835, 842 (8th Cir. 1968); Trailmobile Division, Pullman, Inc. v. N. L. R. B., 379 F.2d 419, 423 (5th Cir. 1967).

The Board's standard is not a rigid one and there are exceptions to this general rule. As one exception, the Board's standard changes in situations where the employees did not work during the payroll period due to illness, 2 leave of absence, or temporary layoff. 3 In these cases, the Board looks at the employee's reasonable expectation of returning to work in determining whether that employee should be permitted to vote. As explained by the court in N. L. R. B. v. General Tube Co., 331 F.2d 751, 753 (6th Cir. 1964), "(t)he rationale for the standard used in these cases seems to be simply that no more objective standard was available." 4

The Board has fashioned a third test for determining voter eligibility of "temporary" employees, E. g., those workers hired either expressly or impliedly as less than permanent workers. In Personal Products Corp., 114 N.L.R.B. 959, 960 (1955), the Board enunciated this standard. "The Board has held that temporary employees who are employed on the eligibility date, and whose tenure of employment remains uncertain, are eligible to vote."

The Company stressed in its brief, and more particularly in oral argument, that the Board has not been consistent in applying a standard to these temporary employee cases. Cases in which the Board applied the reasonable expectation of permanent employment standard were cited, 5 along with

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cases in which the Board followed the date certain test. 6 A review of the applicable case law reveals that the Company's argument concerning Board inconsistency has some merit. However, as discussed above, the reasonable expectation test is most often applied to situations where the employee did not work on the election date. There is no question that both Riley and Costa were employed on the election...

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