Birmingham Ornamental Iron Co. v. N.L.R.B.

• Decision Date: 17 April 1980
• Docket Number: No. 79-1915,79-1915
• Citation: 615 F.2d 661
• Parties: 104 L.R.R.M. (BNA) 2132, 88 Lab.Cas. P 12,008 BIRMINGHAM ORNAMENTAL IRON COMPANY, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 661

615 F.2d 661

104 L.R.R.M. (BNA) 2132, 88 Lab.Cas. P 12,008

BIRMINGHAM ORNAMENTAL IRON COMPANY, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.

No. 79-1915.

United States Court of Appeals Fifth Circuit.

April 17, 1980.

Bradley, Arant, Rose & White, Allen Poppleton, Birmingham, Ala., for petitioner cross-respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, Michael F. Messite, Atty., NLRB, Washington, D.C., for respondent cross-petitioner.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal tests the correctness of an NLRB certification of a bargaining agent. The issue was drawn by the union's filing an unfair labor practice complaint, charging Birmingham Ornamental with violation of §§ 8(a)(5) and (1) of the National Labor Relations Act for refusing to bargain. Two other subsidiary issues are also to be decided: (1) Whether evidence supports the board's determination that a request to bargain was actually sent to the employer; and (2) the validity of a published rule against "any solicitation" on the company's premises.

In July 1977, by stipulation, a valid election was held to determine whether the bargaining unit wished to be represented by the union. The talley showed 134 votes for, 138 against, and seven votes not counted, because they were challenged. The challenge as to six of them was based upon the fact that their names were not on the employer's eligibility list. The challenge as to the seventh was subsequently resolved and is not at issue here. The regional director concluded that these six persons, who had been involved in a reduction in force on June 3, 1977, had a reasonable expectancy at the time of the election of being reemployed with the company in the near future and that they were therefore eligible to vote. Accordingly, the regional director concluded that the seven were eligible voters, and recommended to the board that the challenges to their ballots be overruled.

On August 29, the company filed timely exceptions to the regional director's report on challenged ballots and order. On November 30, 1977, the board having "reviewed the record in the light of the exceptions" adopted the regional director's findings and recommendations, and remanded to the regional director for the purpose of opening and counting the seven challenged ballots. On December 12, 1977, the company filed with the board its motion for reconsideration and other relief requesting the board to direct a hearing to determine whether the six individuals were "terminated" or "laid off" on June 3, 1977, and whether they had a reasonable expectancy of being reemployed. On January 12, 1978, the board denied the company's motion for reconsideration, noting that it contained nothing not previously considered by the board. The challenged ballots were opened and counted and a revised talley showed 140 votes for the union and 139 votes against it. Thereupon, the board certified the union as the exclusive bargaining representative of the company's employees.

The company's principal contention, in defending its actions in refusing to bargain when called to account by the union's unfair labor practice charge is that the regional director resolved two factual issues: (1) whether the employees were "permanently terminated" or were merely "laid off"; (2) whether there was a reasonable likelihood that they would be reemployed within a reasonable time, regardless of whether they were permanently terminated or were merely laid off. The company made the contention that if they were permanently terminated then they could not be considered employees of the company for voting purposes in August 1977, but contended The regional director's report stated that the evidence before him was to the effect that the six employees had been "terminated" or "laid off" ¹ as a part of an economic reduction in force; that none of the employees remember being told anything concerning the duration of the layoff; the company personnel manager stated that employees on layoff are considered for vacancies; that the company had in the past recalled a number of employees from layoff; that the past year's rate of attrition in the particular division averages slightly over two employees per month; that following the June 3 reduction in force, four bargaining unit employees resigned in June and four more in July; and that two of the openings were filled by the recall of Pendleton and Chapple, two of the six persons with whose status we are now concerned. Both of these men were working for the company on the day of the July 13 election.

also that if this contention was not correct, then there was no basis for the regional director's determination that there was a reasonable likelihood that the six would be rehired.

The district director also determined that the company's history revealed a policy of recalling former employees. In February 1975, during a reduction in force, 39 employees were "terminated." The company's records disclose that 24 of then 39 were rehired by the company. The company's records disclose that these rehires occurred: three within 25 days, eight more within six months, eight more within a year, three more between one and two years, and two more after two years. Sixteen of these rehires returned to their original jobs with the company. Based on these facts, which the director found undisputed on the record before him, he concluded that the separated employees had a reasonable expectation of reemployment and were eligible to vote in the election.

The only substantial issue on this appeal is whether the board could accept the director's recommendation as final and binding without conducting a hearing as provided for under the rules and regulations of the board. 29 C.F.R. § 102.69(c), (e). This raises one of the most difficult questions this and other courts have had to decide in representation cases. This is a difficulty which we recognize, because such an important step in the management of labor relations could be equated with other procedural steps as to which the parties may reasonably claim to have the right to a full due process type hearing. For cases of this Court dealing with this problem, see NLRB v. Golden Age Beverage Co., 415 F.2d 26 (1969), where at page 33 we stated the prevailing rule, and where, in footnote 6, we cited a number of cases in which this Court had concluded that a hearing was required. We repeat the analysis made by this Court in Golden Age Beverage as establishing the rule of this Circuit:

It is well established that a hearing is not required in every case to determine the validity of objections to a Board-conducted election, N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889, 894 (5th Cir. 1968), and especially not "where if all the facts contended for by the objecting party 'were credited no ground is shown which would warrant setting aside the election.' " N. L. R. B. v. Bata Shoe Company, 377 F.2d 821, 826 (4th Cir. 1967), quoted approvingly in N. L. R. B. v. Smith Industries, Inc. supra, 403 F.2d at 892; accord, N. L. R. B. v. Capitan Drilling Company, 408 F.2d 676 (5th Cir. 1969); N. L. R. B. v. Douglas County Electric Membership Corp., supra, 358 F.2d at 131; cf., Neuhoff Brothers Packers, Inc. v. N. L. R. B., 362 F.2d 611, 615 (5th Cir. 1966); Anchor Manufacturing Company v. N. L. R. B., 300 F.2d 301, 304 (5th Cir. 1962). The Board, having made such a finding in the light of the insubstantial allegations submitted by the In order to determine whether the standard established by this Court as controlling the right of the employer to have a hearing before final board action was met here, we look first at the exceptions filed to the regional director's report. These exceptions were brief and sketchy and were not accompanied by any tender of proof by affidavit or otherwise. They were as follows:

Company, cannot therefore be said to have acted outside its discretion when it refused to grant an evidentiary hearing. And this is so notwithstanding the fact that the Board's ultimate conclusion rests upon the "elusive concept of the subjective effect of objective union conduct on 'the minds of voters.' " N. L. R. B. v. Smith Industries, Inc., supra, 403 F.2d at 895. An opportunity to observe and examine witnesses, while helpful in determining the effect of union conduct on the voters' exercise of free choice, is nevertheless not ipso facto required; the need for a hearing in such cases is still left to the Board to determine in its discretion. See Southwestern Portland Cement Company v. N. L. R. B., 407 F.2d 131 (5th Cir. 1969); Anchor Manufacturing Company v. N. L. R. B., supra. We conclude that this discretion was properly exercised. (Footnote omitted.)

The General Counsel

The National Labor Relations Board

Washington, D.C. 20570

Attn: Mr. R. Allen

Re: Case 10-RC-11040

Dear Sirs:

A Report on Challenged Ballots and Order was issued by Region 10 in the above-referenced case on August 19, 1977. This letter is to state Employer's exceptions to such report per Section 102.69 of the Board's Rules and Regulations.

1. The conclusion drawn in the Report on Challenged Ballots is inconsistent with the Dismissal Letter in Case 10-CA-12863, issued August 12, 1977, in that the letter states the Employer "terminated" these same men.

2. The investigating Agent has knowledge that several of the terminated men were employed elsewhere, a fact which indicates they were not awaiting or anticipating reemployment.

3. The Report ignores the Employer's totally consistent practice of using the latter date of hire for rehires and does not have any incident of layoff or recall. Yet the report states, "The Employer has in the past recalled a number of employees from layoff."

For these and other reasons the Employer...