National Posters, Inc. v. N.L.R.B., 61-

• Decision Date: 13 September 1989
• Docket Number: No. 61-,I,No. 88-2602,61-,88-2602
• Citation: 885 F.2d 175
• Parties: 132 L.R.R.M. (BNA) 2502, 112 Lab.Cas. P 11,438 NATIONAL POSTERS, INC.; National Litho, a Division of National Posters, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Baltimore Graphic Communications Union, Localntervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 175

885 F.2d 175

132 L.R.R.M. (BNA) 2502, 112 Lab.Cas. P 11,438

NATIONAL POSTERS, INC.; National Litho, a Division of National Posters, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent Baltimore Graphic Communications Union, Local No. 61-C, Intervenor.

No. 88-2602.

United States Court of Appeals Fourth Circuit.

Argued April 11, 1989.

Decided Sept. 13, 1989.

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

Marsha S. Berzon (Jeffrey B. Demain, Altshuler & Berzon, San Francisco, Cal., Laurence Gold, Sandra Hughes, O'Donnell, Schwartz & Anderson, Washington, D.C., on brief), for intervenor.

Joseph Henry Bornong (Rosemary M. Collyer, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Washington, D.C., Deputy Associate Gen. Counsel, Paul J. Speilberg, Deputy Asst. Gen. Counsel, on brief), for respondent.

Before ERVIN, Chief Judge, and PHILLIPS and SPROUSE, Circuit Judges.

ERVIN, Chief Judge:

National Posters Inc. ("NPI"), petitions for review of a bargaining order issued by the National Labor Relations Board ("NLRB"). NPI presses several arguments in support of a claim that it should not be required to recognize the Baltimore Graphic Communications Union, Local 61-C ("Local 61-C") as the collective bargaining agent for its employees. Finding no merit in any of these arguments, we grant enforcement of the NLRB's order.

I.

NPI is a commercial poster printer that employed over fifty people at two Baltimore plants during 1981. During that year, the predecessor to the Local 61-C, the Baltimore Printing Pressmen and Assistants Union, Local 61 ("Local 61"), conducted a bitter organizing campaign. On December 15, 1981, a representation election was held for the stipulated bargaining unit which included NPI's production and maintenance workers. The initial vote tally revealed 24 votes in favor of Local 61 and 21 votes opposed, with three ballots challenged by Local 61 and one ballot challenged by NPI. Without holding a hearing, the NLRB's Regional Director rejected NPI's challenge to the ballot cast by Samuel John. John's ballot was subsequently opened and counted. Since it was cast in favor of the union, his ballot gave the union a decisive 25 to 21 majority and the three remaining ballot challenges became moot. Local 61 was thereafter certified and on December 10, 1982, the NLRB issued an order requiring NPI to bargain collectively with Local 61.

This is the second time the parties' disputes over the results of that election have been before us. In National Posters Inc. v. N.L.R.B., 720 F.2d 1358 (4th Cir.1983) ("National Posters I "), we vacated the NLRB's December 10th bargaining order because the NLRB's Regional Director rejected NPI's challenge to John's ballot without affording NPI the opportunity for a hearing on the underlying factual issues. ¹ On remand, Administrative Law Judge Bernard Ries conducted a hearing on NPI's and Local 61's ballot challenges. After hearing three days of testimony in June of 1984, Ries issued a lengthy opinion in which he found that John was eligible to vote. He also found that among the ballots challenged by Local 61, Wesley Souders was eligible to vote and Albert Amend was not. After an unexplained two year delay, the NLRB adopted ALJ Ries' decision. On NPI's motion, though, the NLRB reopened the hearings in light of the intervening merger of the International Printing and Graphic Communications Union (Local 61's former national affiliate) with the Graphic Arts International Union. As a result of this merger, Local 61 adopted its current name as the Baltimore Graphic Communications Union, Local 61-C. NPI charged that this merger substantially changed the local union and therefore raised a question concerning the local union's continued majority status among bargaining unit employees.

ALJ Ries conducted a second hearing in July of 1987. In an opinion issued in February of 1988, he concluded that the merger did not so substantially change the local union as to require its decertification as the bargaining representative for NPI's employees. On June 30, 1988, the NLRB adopted ALJ Ries' findings and declined NPI's invitation to reopen the case yet again to consider whether turnover among employees in the bargaining unit during the seven years since the election required a new election. Continuing its all out efforts to avoid the bargaining table, NPI now petitions for review of each and every decision by the NLRB recounted above.

II.

We turn first to NPI's claim that the NLRB erroneously found that John was eligible to vote in the representation election. John worked at NPI off and on for roughly six months prior to the representation election as an on-call "racker" in the silk screen department. Unlike NPI's regular "rackers", John was only paid the minimum wage and received no fringe benefits. His time cards show that some weeks he worked over forty hours while during other weeks he did not work at all. ² For purposes of determining voter eligibility, the NLRB distinguishes between part-time employees and seasonal or casual workers. Seasonal workers are generally not eligible members of the relevant bargaining unit, while part-time employees may be included in the bargaining unit if they share a sufficient "community of interests" with full time employees. Where part-time employees are included in the bargaining unit, such employees are eligible to vote if they average four hours of work per week in the quarter preceding the election. V.I.P. Movers, Inc., 232 NLRB 14, 97 LRRM 1498 (1977). Applying this objective hours per week test, ALJ Ries found that John was an eligible part-time employee.

NPI does not contest the propriety of including part-time workers in the bargaining unit. Instead, it contends that John was a casual or seasonal employee hired solely to work for the 1981 Christmas peak season. According to NPI, John was not a part-time worker and therefore the objective hours test was erroneously applied. Further, NPI argues that this conclusion is compelled by the law of the case. In our previous decision, we noted that NPI had made out a prima facie case that John was a seasonal employee by alleging:

(1) [NPI] experienced a Christmas peak season; (2) [NPI] maintains a pool of peak season employees; (3) John was hired to work only on a peak season basis; (4) John was paid less than and received none of the benefits available to full-time employees and had no assurance of recall; and (5) John, in fact, worked primarily during the Christmas peak season and stopped work thereafter.

National Posters I, 720 F.2d at 1363. NPI now claims that evidence produced at the June 1984 hearing before ALJ Ries proved each of these allegations and thus, according to the law of the case, the ALJ was required to find that John was ineligible.

This argument is unpersuasive for two reasons. First, as discussed more fully below, ALJ Ries did not find that NPI had proved all of its allegations. Second, by expressly noting NPI's allegations, we in no way intended to alter the legal standard for determining whether John was a seasonal or part-time employee. Instead, we merely noted NPI's allegations were sufficient to raise a prima facie case and entitle NPI to a hearing. We explicitly stated that "other facts might tend to support the Regional Director's conclusion [that John was a part-time employee and], whether that conclusion is supported by substantial evidence is a question apart from whether [NPI] was entitled to a hearing on the underlying factual issue." National Posters I, 720 F.2d at 1363. Thus even if NPI had proved each of its allegations, ALJ Ries was not bound by the law of the case to conclude that John was a seasonal worker so long as other evidence supported a contrary conclusion. The "law of the case" here is of no particular assistance to NPI's cause for it merely requires us to review the NLRB's decision according to the general principles of labor law.

Distinguishing between seasonal and part-time employees is no easy task. See N.L.R.B. v. Western Temporary Services, 821 F.2d 1258 (7th Cir.1987). Addressing issues regarding the eligibility of non-permanent individual employees, courts have commonly looked to the language defining the bargaining unit and, where that language was ambiguous, allowed the NLRB to resolve the issues according to the "community of interests" standard. See, e.g., N.L.R.B. v. Boston Beef, 652 F.2d 223 (1st Cir.1981); and N.L.R.B. v. Speedway Petroleum, 768 F.2d 151 (7th Cir.1985). See also I.T.O. Corp. of Baltimore v. N.L.R.B., 818 F.2d 1108, 1112-13 (4th Cir.1987) (discussing "community of interests" standard generally). Applying this standard, "[t]he Fourth Circuit has upheld [NLRB] decisions which permitted unemployed seasonal employees to vote where they 'had at the time of the election a reasonable expectation of reemployment within a reasonable time in the future.' " N.L.R.B. v. Atkinson Dredging, 329 F.2d 158, 162 (4th Cir.1964), quoting N.L.R.B. v. Jesse Jones Sausage Co., 309 F.2d 664, 665 (4th Cir.1962). The NLRB's policy is that on-call employees share the requisite "community of interests" if their work history satisfies the objective hours test. See V.I.P. Movers, 232 NLRB 14, 97 LRRM 1498 (1977).

The ALJ's determination of John's employment status at NPI is a conclusion of law. National Posters I, 720 F.2d at 1362-63. The correctness of that conclusion turns, however, upon factual findings regarding NPI's intention in hiring John. See Id. As suggested in National Posters I, if NPI hired John "based on the periodic availability of work rather than on peak season demand," John was eligible to vote. Id., at 1363. NLRB determinations of fact are to be upheld if supported by substantial evidence on the record as a whole, "even though we might have decided the case differently de novo." ARA Leisure Services,...