N.L.R.B. v. Best Products Co., Inc., 84-7645
| Citation | 119 L.R.R.M. 3265,765 F.2d 903 |
| Decision Date | 10 July 1985 |
| Docket Number | No. 84-7645,84-7645 |
| Parties | 119 L.R.R.M. (BNA) 3265, 54 USLW 2075, 103 Lab.Cas. P 11,533 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BEST PRODUCTS CO., INC., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Helen Morgan, N.L.R.B., Washington, D.C., for petitioner.
Sidney L. Wolchok, New York City, for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before HALL and WIGGINS, Circuit Judges, and SMITH, District Judge *.
The National Labor Relations Board (Board or NLRB) seeks enforcement of its order that Best Products Company, Inc. (Best) cease violating Sections 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. 158(a)(1) and (5), 1 and bargain with United Food and Commercial Workers Local 428, AFL-CIO (Local 428) as the representative of the bargaining unit employees at Best's Campbell, California catalog showroom and warehouse. Best resists the order on the grounds that the election that gave rise to the bargaining order was flawed by an unequal number of employer and union observers and by pre-election union misrepresentations. It also contends that the unit has changed in content since the election. We grant the petition to enforce the order.
The Union petitioned the NLRB on March 24, 1982 for a representation election among Best's sixty-nine sales and warehouse workers. Employer, union and Board representatives executed a form "Stipulation for Certification Upon Consent Election" in April, 1982. It stated that "each party ... will be allowed to station an equal number of authorized observers ... at the polling places during the election to assist in its conduct, to challenge the eligibility of voters and to verify the tally.".
An election was held on June 3, 1982. The polling was in a small room in two sessions, the first between one and three p.m. and the other between five and seven p.m.
The Board Agent designated to supervise the election arrived at about noon that day to hold a pre-election conference with union and employer representatives. Some fifteen to thirty minutes before voting was to begin, the union asked to use two observers at each session in order to identify employees from both the showroom and warehouse. Best's representatives objected that they had but one observer ready. They stated that they could not remove another employee from work and quickly train that employee as an observer. The Best conferees also objected that the room used for balloting was too small to accommodate two observers for each side.
The Board Agent suggested that the employer use two observers, noted the objection, and proceeded with the vote. The employer had one observer at both sessions, while the union had two. The union received a majority of the votes cast.
Best filed objections to the conduct of the election concerning not only the unequal number of observers, but also alleged misstatements by the union during the campaign. The NLRB Regional Director investigated the objections and issued a "Report and Recommendations on Objections" of June 26, 1982 in which he ordered a hearing on the objections.
On August 4, 1982, the Board handed down its decision in Midland National Life Insurance Company, 263 NLRB 127, 110 LRRM 1489 (1982). The Board held that it would no longer set aside an election solely because of misleading campaign statements or misrepresentations of fact, but would only intervene where a party had used forged documents to disable voters from recognizing propaganda or had indicated Board endorsement of a party.
The Regional Director issued a "Supplemental Report and Recommendations on Objections", noting that after Midland National, Best's objections alleging nothing more than misrepresentations must be overruled. A hearing would be held only on the objection concerning the imbalance in observers.
A hearing was held on March 2, 1983 and a "Report on Objections" issued on September 7, 1983. The hearing officer found that the Board Agent requested, but the employer declined to use, an additional observer during the election. He recommended that Best's objection be overruled and Local 428 certified as the bargaining representative.
The employer filed exceptions to the hearing officer's report. On March 28, 1984, the Board, per Chairman Dotson and Members Hunter and Dennis, issued a Decision and Certification of Representative, which had the effect of overruling the objections and establishing the Union as bargaining representative. When Best refused to bargain with Local 428, the latter filed an unfair labor practice (u.l.p.) charge with the NLRB. The General Counsel issued a Notice to Show Cause and a complaint against the employer and moved for summary judgment.
In its response, Best incorporated and reaffirmed it post-election objections. On August 14, 1984, the same Board panel concluded that Best had violated the Act, ordered it to bargain and construed the initial period of Local 428's certification as beginning on the date that Best begins to bargain in good faith.
An order of the NLRB is to be enforced if the Board correctly applied the law and if the Board's findings of fact are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-488, 71 S.Ct. 456, 463-465, 95 L.Ed. 456 (1951); Whisper Soft Mills, Inc. v. N.L.R.B., 754 F.2d 1381, 1384 (9th Cir.1984). Substantial evidence is Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).
The inquiry into whether the Board order has a "reasonable basis in law" for its order, see Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979), consists of two elements; firstly, whether the Board acted within an area of regulation committed to it by Congress, NLRB v. Insurance Agents' International Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960) and secondly, whether the Board properly applied the correct legal standard, Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166, 92 S.Ct. 383, 391, 30 L.Ed.2d 341 (1971).
Best recounts that it received a letter from the Regional Director on May 25, 1982 stating that "Each of the parties may select an observer to represent him at the polling place" and adding "Please ask your observer to be available one-half hour before the opening of the polls." The employer avers that it relied on this letter in concluding that each side would be permitted to station a single observer at the polling place. The Board counters that the missive in question was merely a cover-letter for the transmission of the Notice of Election 2 and instructions to observers and did not represent an agreement between the parties as to the number of observers.
There was no pre-existing agreement concerning the absolute number of observers on each side, but only an agreement that each side would have an equal number of observers. Best focused upon the Regional Director's cover letter--which spoke in the singular concerning the number of observers--and not on the Stipulation or the Notice of Election that spoke of observers in the plural.
The Stipulation and not the cover letter embodies the agreement that the parties made concerning observers. Moreover, the regulatory guides to the Board's procedures are quite clear that parties may have more than a single observer each. See NLRB, "Rules and Regulations", 29 C.F.R. Sec. 102.69(a) (1984); NLRB, Outline of Law and Procedure in Representation Cases at 277 (1974); NLRB, Casehandling Manual, Part II, p 11,310 (1984). 3 It is evident from these guides and the leading treatises that it is both allowable and commonplace that more than one observer per party be used, even in a "small election." Observers have uncomplicated tasks and are therefore fungible and rapidly trained. The Board expects that some or all of the observers will be taught their tasks by a Board agent within minutes of the opening of the election and that the agent will be a guiding presence during the tenure of the observers. The principal task of the observer is one of identifying voters and the presence of more than one observer per side is an obvious aid in that regard. See Casehandling Manual at section 11318; C. Morris, The Developing Labor Law at 393-395 (1983); 2 T. Kheel Labor Law Sec. 7A.05 at 7A-80 (1984); J. Feerick, H. Baer, J. Arfa, NLRB Representation Elections Sec. 7.6.4 at 240 (1980).
The "control of the election proceeding, and the determination of the steps necessary to conduct that election fairly (are) matters which Congress entrusted to the Board alone." N.L.R.B. v. Waterman S.S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 1036 (1940). The NLRB has wide discretion to determine representation matters and questions arising during election proceedings. N.L.R.B. v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); N.L.R.B. v. Berryfast, Inc., 741 F.2d 1161, 1163 (9th Cir.1984). Reasoned interpretations of an act by the agency charged with administering it are entitled to deference, Worthington v. Icicle Seafoods, Inc., 749 F.2d 1409, 1412 (9th Cir.1984) and we give considerable deference to the NLRB's expertise in construing and applying the labor laws. Mingtree Restaurant, Inc. v. N.L.R.B., 736 F.2d 1295, 1297 (9th Cir.1984).
Where the Board's determination is within its area of expertise, it will not be overturned unless the Board has abused its discretion. Scintilla Power Corp. v. N.L.R.B., 707 F.2d 419, 421 (9th Cir.1983). The Board agent here followed...
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