National Posters, Inc. v. N.L.R.B.

• Decision Date: 03 November 1983
• Docket Number: No. 82-2140,82-2140
• Citation: 720 F.2d 1358
• Parties: 114 L.R.R.M. (BNA) 3240, 99 Lab.Cas. P 10,527 NATIONAL POSTERS, INC. and National Litho, a division of National Posters, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1358

720 F.2d 1358

114 L.R.R.M. (BNA) 3240, 99 Lab.Cas. P 10,527

NATIONAL POSTERS, INC. and National Litho, a division of National Posters, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 82-2140.

United States Court of Appeals Fourth Circuit.

Argued July 12, 1983.

Decided Nov. 3, 1983.

Maurice Baskin, Washington, D.C. (Venable, Baetjer, Howard & Civiletti, Washington, D.C., on brief), for petitioners.

Daniel R. Pollitt, N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Jolane A. Findley, Washington, D.C., on brief), for respondent.

Before PHILLIPS, SPROUSE and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

This is a petition by National Posters, Inc. ("Employer") for review of an order by the National Labor Relations Board ("Board"). That order, issued December 10, 1982, requires Employer to bargain collectively with the Baltimore Printing Pressmen and Assistants Union ("Union"). Employer had refused to bargain with the Union in order to obtain judicial review of the Board's certification of the Union as the bargaining representative of all production and maintenance employees at Employer's two Baltimore plants. Because we conclude that the Board improperly certified the Union, we vacate the order and remand to the Board for further proceedings.

I.

Employer is a commercial poster printer. It employs over 50 people at its two Baltimore plants. Earl Seth, Jr., is president and owner of Employer. In the fall of 1981, the Union conducted an organizing campaign among Employer's employees. A central issue in the campaign was the level of wages and benefits, which had been cut back as a result of Employer's financial problems. The campaign culminated in a representation election which was held on December 15, 1981. The initial election tally was 24 for the Union and 21 against, with 4 challenged ballots, three by the Union and 1 by Employer.

Employer challenged the vote of employee Samuel John. The challenge was supported by an affidavit submitted by Seth, who indicated that he intended John to be employed only on a peak seasonal basis. John was hired in June, 1981 as a seasonal employee who is "on call" to perform the job of "racking." ¹ When John worked, he did so "shoulder-to-shoulder" with Employer's two full-time rackers. John was paid the minimum wage, $3.35 per hour, while the two full-time rackers earned $3.47 and $4.37 per hour respectively. Unlike John, their salaries would increase with their length of service. John also did not receive any of the benefits enjoyed by full-time employees such as health and welfare insurance, vacation pay, sick pay, or holiday pay.

Employer's business experienced a seasonal surge of business during the Christmas rush season. Employer maintained a pool of seasonal employees who could work during that period of increased demand. Seasonal employees, including John, were free to work elsewhere when not working for Employer. These employees had no assurance of recall.

Employer maintains that John's hours during late September through December reflect the Christmas rush and that John did not work after the payroll period ending January 2, 1982, because the Christmas rush period ended.

Employer also objected to the election on grounds that the Union had engaged in campaign misconduct by making five material misrepresentations that affected the election results. In its Objection 1, Employer alleged that in the week prior to the election, Union President Gerald Brown, as well as other Union representatives, falsely told numerous employees that Employer had spent large sums of money on gifts for his children, including the purchase of a large farm for his daughter. In its Objection 2, Employer alleged that the Union had materially misrepresented the Union's pension plan by stating or implying that employees automatically would be entitled to participate in the Union's plan upon selecting the Union, and that employees' participation in the plan automatically would be paid for out of union dues. In its Objection 3, Employer alleged that the Union materially misrepresented the health and welfare benefits to which the employees would be entitled if the Union were selected by stating or implying that all of the Union's contracts contained all health and welfare benefits being promised by the Union and leading the employees to believe that they automatically would be entitled to optical coverage and other benefits upon mere payment of dues following the Union's certification. In its Objection 4, Employer alleged that Union representatives misrepresented to numerous employees the amount of dues employees would be required to pay to join the Union. Lastly, in its Objection 5, Employer generally alleged that "various other false and misleading statements" were made by Union representatives. These exceptions were supported by the affidavits of Seth and three supervisors.

On March 16, 1982, the Board's Regional Director issued, without a hearing, a report recommending that Employer's challenges be overruled. The Regional Director found that John was an eligible voter, rejecting Employer's claim that John was a seasonal employee. Instead, the Regional Director characterized John as a part-time employee, finding that "Employer's need for John's services is more dependent upon the availability of jobs requiring extra racking, than upon particular peak periods of the business year." The Regional Director considered the ruling supported by (1) John working in each of the six months prior to the December election, (2) John performing, when he did work, the same tasks as full-time workers and working shoulder-to-shoulder with those workers and (3) John being supervised by the supervisor of the full-time employees. The Regional Director then applied the Board's objective number of hours test for determining if part-time employees are eligible voters: part-time employees are eligible voters if they average four hours of work per week in the quarter preceding the election. See V.I.P. Movers, Inc., 232 NLRB 14 (1977); Davison-Paxon Co., 185 NLRB 21 (1970). Since John averaged more than four hours per week, he was found to be eligible.

The Regional Director also overruled one of the Union's voter challenges and after counting the two challenged ballots, the new tally became 25-22 in favor of the Union. Thus, the two remaining challenged votes could not affect the election, assuming the challenges to the other two votes were properly overruled.

The Regional Director rejected all of the objections concerning Union misrepresentations. The Regional Director found that even if the allegations in Objection 1 were true, the misrepresentations did not accuse Seth of corporate malfeasance and, thus, under the standard set out in Hollywood Ceramics/General Knit did not affect election results. See General Knit of California, Inc., 239 NLRB 619 (1978); Hollywood Ceramics Co., 140 NLRB 221 (1962). Objections 2 through 5 were overruled because they were supported by only the hearsay affidavits of three supervisors, and not by the statements of witnesses to the alleged misrepresentations.

Employer filed timely objections to the Regional Director's decision, but on June 29, 1982, the Board affirmed that decision. The Board did so without a hearing and without review of the affidavits submitted by Employer to the Regional Director in support of its challenges. The Regional Director did not transmit the affidavits to the Board as part of the record. In its opinion, the Board did not specifically address Employer's challenge to John's eligibility or the alleged misrepresentation in Objection 1. With respect to Objections 2-5, the Board affirmed the Regional Director on the grounds that the alleged misrepresentations did not violate the Hollywood Ceramics/General Knit standard:

Assuming the veracity of the Employer's claims regarding Employer's Objections 2-5, we find that the Employer failed to establish a prima facie case that the Petitioner made representations which would warrant setting aside the results of the election.

On July 14, 1982, the Regional Director certified the Union. Employer refused to bargain with the Union, and on December 10, 1982, the Board issued a cease and desist order requiring Employer to bargain collectively with the Union. Employer then petitioned this court for review of the Board's order.

II.

Employer first claims that under NLRB v. Cambridge Wire Cloth Co., Inc., 622 F.2d 1195 (4th Cir.1980), this case should be remanded to the Board with direction to the Regional Director to transmit all material included in his decision, including the various affidavits submitted by Employer, to the Board for its consideration. Cambridge Wire involved facts identical in material respects with those here. In that case, as here, the employer contended for the first time on appeal to this court that the Regional Director failed to transmit to the Board certain affidavits submitted by the employer. The Regional Director had issued his decision without a hearing and the employer had assumed that upon filing its request for review by the Board, the Regional Director would transmit to the Board all the material that had been presented to or considered by him.

This court, relying on 29 C.F.R. Sec. 102.69(g) and Prestolite Wire Division v. NLRB, 592 F.2d 302 (6th Cir.1979), held that it was the Regional Director's responsibility to transmit the record, including the affidavits, to the Board and that his failure to do so required a denial of enforcement. In Prestolite, the Sixth Circuit had held that "[w]ithout expressly ruling that the Regional Director is invariably required under Section 102.69(g) to transmit to the Board all of the materials considered by him (although the language says 'shall'), we think that the better...