N.L.R.B. v. New Orleans Bus Travel, Inc., 89-4009

Decision Date15 September 1989
Docket NumberNo. 89-4009,89-4009
Citation883 F.2d 382
Parties132 L.R.R.M. (BNA) 2545, 112 Lab.Cas. P 11,436 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEW ORLEANS BUS TRAVEL, INC., Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Aileen Armstrong, Judith Dowd, Dep. Assoc. Counsel, NLRB, Washington, D.C., for appellant.

Clifford H. Nelson, Jr., Wimberly, Lawson & Cobb, Atlanta, Ga., for appellee.

Hugh Frank Malone, Director, Region 15, NLRB, New Orleans, La., other interested parties.

Application for Enforcement of an Order of the National Labor Relations Board.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

POLITZ, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order directing New Orleans Bus Travel, Inc. (the Company) to bargain with the union selected by its employees. The Company suggests that its refusal to bargain is motivated by a desire to secure judicial review of its objections to the certification election. Finding that the bargaining agent was certified properly, we grant enforcement.

Background

The Company operates a Greyhound bus terminal in New Orleans, Louisiana. In an election held July 23, 1987, its employees voted 17 to 6 for representation by the Amalgamated Transit Union, Local 1600. The balloting was conducted in two sessions, from 7:00 a.m. to 8:00 a.m., and from 2:30 p.m. to 3:30 p.m. All but two of the employees in the bargaining unit voted; seven challenged ballots were not counted because they would not change the election results.

The Company filed five objections to the certification, only two of which are before this court. The Company presently complains that the employee voting list used at the morning session, and the polling place signs were temporarily out of the control of the Board agent supervising the election, and that "chain voting" may have occurred.

The first objection before us is based on this scenario. After the morning session the Board's agent returned to her office with the election materials. She took the ballots and ballot bag into her office but left the employee voting list and polling place signs in her government car, which she parked in its customary place. The vehicle was taken out by unidentified persons so the agent conducted the afternoon voting session using a second employee voting list on which the Company and Union observers had noted the employees who had voted in the morning session. Later in the day the first list was retrieved. The election observers compared the two lists and verified that no one had voted twice.

The second objection before us involves an employee who marked his ballot and, mistakenly believing that he should leave it in the polling booth, pushed it into an opening below the writing surface. The agent could not recover the ballot and gave the employee a second ballot which was voted under challenge. That ballot was not counted. When the voting booth was returned to the agent's office her supervisor removed the marked ballot, sealed it in an envelope, and placed it in the file.

After an investigation the Regional Director recommended that the Board reject all five objections. The Company filed exceptions to the Regional Director's report and submitted evidentiary materials. The Board rejected three objections and ordered a hearing on two, one of which was later withdrawn by the Company. The hearing officer recommended rejection of the remaining objection; the Board agreed and certified the Union.

The National Labor Relations Act does not provide for direct judicial review of representation proceedings. NLRB v. Klingler Electric Corp., 656 F.2d 76, 80 n. 2 (5th Cir.1981). To secure review the Company declined to bargain. The general counsel responded by charging an unfair labor practice and obtaining a summary judgment and an order directing the Company to bargain. The Board petitions this court for enforcement of that order pursuant to 29 U.S.C. Sec. 160(e). The Company moved to supplement the record.

Analysis

As a threshold matter, we deny the Company's motion to supplement the record. The exceptions to the report of the Regional Director are in the record, as is the memorandum of the Board agent. We decline to direct the Regional Director to transmit his investigative file. Our review is based on the record before the Board.

The Board has wide discretion in the supervision of representation elections. Our review is limited to determining whether its decision was reasonable and supported by substantial evidence. NLRB v. Rolligon Corp., 702 F.2d 589 (5th Cir.1983). The Company bore the burden of demonstrating to the Board unlawful acts that "materially affected the results of the election." NLRB v. Claxton Poultry Co., Inc., 581 F.2d 1133, 1135 (5th Cir.1978).

The Company suggests three propositions in support of its first objection: (1) the Regional Director should have transmitted his investigative file to the Board; (2) the Board should have ordered a hearing; and (3) the temporary loss of the voting list raises an inference of coercive atmosphere. We find no merit in any of these suggestions.

The Company offers neither allegations nor proof of anything which would warrant factual review. There is no basis for the Board, or this court, to order the Regional Director to produce his investigative file on the election. See Birmingham Ornamental Iron Co. v. NLRB, 615 F.2d 661 (5th Cir.1980). The temporarily missing employee list was recovered. And as reflected by the...

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