New England Lumber, Div. of Diamond Intern. Corp. v. N.L.R.B., 80-1619

• Decision Date: 02 March 1981
• Docket Number: No. 80-1619,80-1619
• Citation: 646 F.2d 1
• Parties: 107 L.R.R.M. (BNA) 2165, 91 Lab.Cas. P 12,711 NEW ENGLAND LUMBER DIVISION OF DIAMOND INTERNATIONAL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

646 F.2d 1

107 L.R.R.M. (BNA) 2165, 91 Lab.Cas. P 12,711

NEW ENGLAND LUMBER DIVISION OF DIAMOND INTERNATIONAL

CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-1619.

United States Court of Appeals, First Circuit.

Heard March 2, 1981.

Decided April 21, 1981.

Rehearing and Rehearing En Banc Denied May 18, 1981.

Malcolm E. Morrell, Jr., Bangor, Maine, with whom Clare Hudson Payne, and Eaton, Peabody, Bradford & Veague, Bangor, Maine, were on brief, for petitioner.

Susan T. Papadopoulos, Atty., with whom William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Acting Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, William Wachter and Sandra Shands Elligers, Washington, D. C., Attys., were on brief, for respondent.

BREYER, Circuit Judge.

This case came before the court upon the petition of the New England Lumber Division of Diamond International Corporation ("Diamond") for review of an order of the National Labor Relations Board and the Board's cross-application for enforcement. The order requires Diamond to bargain collectively with the United Paper Workers International Union and its Local No. 80, AFL-CIO (the "Union"). Diamond based its refusal to bargain upon its claim that the Union was not validly chosen to represent its employees because the Union had an improper observer present at the representation election. We reject Diamond's claim and enforce the Board's order.

The dispute in the case concerns an observer designated by the Union at a representation election held in accordance with an agreement or stipulation between the Union and the company. The election was held on October 25, 1979, at the stud mill operated by Diamond's New England Lumber Division. From the morning of the election, Diamond has consistently urged that the designation of the Union's president, Phillip Veilleux, an employee of Diamond's Penobscot Division, to act as the Union observer at the election, violated the specific provisions of the "Stipulation for Certification Upon Consent Election". It adds that a rerun of the election (which the Union won) must be ordered. In response to petitioner's objections, the Regional Director of the NLRB conducted an administrative investigation, and recommended that the objections be overruled. The Board adopted the Regional Director's Report.

Diamond's argument is based on paragraph 4 of the printed form stipulation, ¹ prepared by the NLRB, entitled "United States of America, National Labor Relations Board, Stipulation for Certification Upon Consent Election". It states:

"4. OBSERVERS. Each party hereto will be allowed to station an equal number of authorized observers, selected from among the non-supervisory employees of the Employer, at the polling places during the election to assist in its conduct, to challenge the eligibility of voters, and to verify the tally." (Emphasis added.)

Diamond argues that Veilleux is not a nonsupervisory employee of the "employer" within the meaning of the stipulation because Veilleux is a nonsupervisory employee of the Penobscot Division of Diamond, not its New England Lumber Division. Diamond argues that the Penobscot Division and the New England Lumber Division are autonomous entities operating within a large multinational corporation, and that it is the Lumber Division, not Diamond as a whole, which is the "employer" within the terms of the stipulation.

The facts related to the stipulation's meaning are as follows: First, the stipulation does not explicitly state whether the New England Lumber Division or the larger company is the "employer" within the terms of paragraph 4. However, the words "Diamond International Corporation, New England Lumber Division" were typed above the printed word "(Employer)" at the place on the form which calls for a signature.

Second, paragraph 8 of the form stipulation calls for the parties, presumably the employer, to "insert commerce facts" establishing that the employer is engaged in commerce within the meaning of Sections 2(6) and (7) of the National Labor Relations Act; and, the typewritten words inserted appeared to name Diamond International Corporation as the corporation. The remainder of the typed response in paragraph 8, however, limited the facts establishing effect on commerce to facts concerning the New England Lumber Division, not Diamond as a whole. ²

Third, a letter from the NLRB to Diamond's New England Lumber Division and the Union enclosed the completed stipulation for signature. It stated in part:

"Enclosed in accordance with our telephone discussions is the Stipulation for Certification upon Consent Election Each party may designate an election observer. These observers must be non-supervisory employees."

The letter is not specific about whether nonsupervisory employees of any division of Diamond or only of its New England Lumber Division were intended to be qualified observers. But the letter is captioned "RE: DIAMOND INTERNATIONAL CORP., NEW ENGLAND LUMBER DIV."

It is clear that the Board has discretion to interpret ambiguity in a Stipulation for Certification Upon Consent Election. NLRB v. Detective Intelligence Service, Inc., 448 F.2d 1022, 1025 (9th Cir. 1971). In that case, the Ninth Circuit stated, "where a Stipulation is ambiguous, the Board has authority to interpret the agreement according to what it finds to have been the intent of the parties." Id. Whether the stipulation is sufficiently ambiguous here to warrant the Board's interpretation is uncertain, given the instances in the relevant papers where the "employer" is referred to as Diamond International Corporation, New England Lumber Division. But, we need not decide that question, for even if use of Veilleux as an observer was inconsistent with the terms of the stipulation, the NLRB's decision to accept the election results is still valid.

The NLRB has broad discretion in the conduct of...