885 F.2d 175 (4th Cir. 1989), 88-2602, National Posters, Inc. v. N.L.R.B.

Docket Nº:88-2602.
Citation:885 F.2d 175
Party Name: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.
Case Date:September 13, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 175

885 F.2d 175 (4th Cir. 1989)

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

September 13, 1989

Argued April 11, 1989.

Page 176

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

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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...

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