Nightingale Oil Co. v. N.L.R.B.

• Decision Date: 08 March 1990
• Docket Number: No. 89-1886,89-1886
• Parties: 134 L.R.R.M. (BNA) 2517, 59 USLW 2040, 115 Lab.Cas. P 10,120 NIGHTINGALE OIL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 528

905 F.2d 528

134 L.R.R.M. (BNA) 2517, 59 USLW 2040,

115 Lab.Cas. P 10,120

NIGHTINGALE OIL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 89-1886.

United States Court of Appeals, First Circuit.

Heard March 8, 1990.

Decided June 6, 1990.

Christopher J. Perry with whom Neil Jacobs, Lynne McCarthy, and Hale & Dorr, Boston, Mass., were on brief, for petitioner.

Julie B. Broido, Atty., with whom William R. Stewart, Deputy Asst. Gen. Counsel, Jerry M. Hunter, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, for respondent.

Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

COFFIN, Senior Circuit Judge.

Nightingale Oil Company ("Nightingale" or "the company") has petitioned for review of an order of the National Labor Relations Board requiring it to cease and desist violating Sections 8(a)(1) and (5) of the National Labor Relations Act (29 U.S.C. Secs. 158(a)(1) and (5)) by refusing to bargain with Teamsters Local Union 25 ("the union"). The Board has cross-applied for enforcement of the order. The company challenges the balloting conducted under the Board's vote-and-impound procedure and the appropriateness of the unit certified. We deny the petition for review and grant the Board's application for enforcement.

I. FACTS

Nightingale Oil, located in Braintree, Massachusetts, installs and services oil burner equipment and sells heating oil. Nightingale employs seven oil burner servicemen, two oil delivery drivers, four clerical workers and a dispatcher. The union petitioned in April 1987 for an election to certify it as the exclusive bargaining representative of a unit composed of the oil burner servicemen.

After a hearing, the Regional Director found that the oil burner servicemen comprised an appropriate unit and scheduled an election to be held on July 1 from 4:30 to 5:30 p.m. On June 17, 1987, the company filed a request for review with the Board, arguing that all three classifications--servicemen, drivers and clericals--should have been included in the bargaining unit. In the alternative, Nightingale argued that the appropriate unit was composed of servicemen and drivers.

The next day, the Board confirmed that the election would be held as scheduled. The notice of election was posted at Nightingale for at least three days before the election and stated that "[t]hose eligible to vote are all full-time and regular part-time oil burner servicemen employed by the Employer at ... Braintree, ... excluding all other employees." Appendix at 279.

On the morning of July 1, the Board granted the company's request for review of the unit determination. Joseph Kane, at the regional office, telephoned the company's attorney, Christopher Perry. According to Perry, Kane told him that the election was to proceed as scheduled, and Kane instructed management to inform the clericals and drivers that they were eligible to vote, but to keep comments brief, to the extent possible. Perry was given the phone number of an individual in the office of the Board's Executive Secretary. Perry indicates that in his conversation with that individual, whose name Perry cannot recall, there was no discussion of what explanation should be given to voters. He claims, however, that the individual admitted that the situation could be confusing yet insisted that the election nevertheless proceed in the manner directed. Perry never discussed in either conversation the possibility of alternative balloting procedures, whereby separate ballots would be taken for each of the three possible units that the Board might certify. ¹

Nightingale, through its attorney, sent a hand-delivered letter to the Board before the election took place, objecting to an election being conducted that day that would allow employees other than servicemen to vote. ² As in the telephone conversations, the letter did not suggest alternative balloting procedures.

The company duly informed the clericals and drivers that they were eligible to vote. George Nightingale testified that he did not speak to any serviceman before the election. He stated, however, that following the election, serviceman Ronald Walker told him that he had not voted because, since everyone was now voting, his vote would be insignificant.

The three employee classifications all voted in due course. Each voter was given only one ballot. In accordance with Board procedures, the agent challenged and segregated the ballots of the drivers and clericals, and all votes were impounded pending the outcome of the Board's review of the unit determination. The Board's election representative did not explain to employees why clericals and drivers were being allowed to vote. The agent also made no representations concerning the scope of the unit.

In October, 1987, the Board issued an order affirming the Regional Director's unit determination. The impounded ballots of the servicemen were opened and counted. Of the seven eligible voters in the unit, six had voted, five in favor of the union and one opposed. The employer filed objections to the manner of the election, contending that the election must be set aside because the last-minute decision to allow clericals and drivers to vote effectively changed the scope of the bargaining unit and misled the servicemen concerning the unit for which they were voting.

The Regional Director issued a report on objections finding that a new election was not warranted because the vote-and-impound procedure employed in the election was consistent with Section 102.67(b) of the Board's Rules and Regulations and did not prejudice the election. ³ The employer filed exceptions to the Regional Director's report. In July 1988, the Board adopted the Regional Director's findings and recommendations. The Board thereupon certified Teamsters Local Union 25 as the exclusive collective-bargaining representative of the unit of oil burner servicemen at Nightingale.

The union made numerous efforts to engage in collective bargaining with Nightingale; the company refused to meet. The union filed an unfair labor practice charge with the Board in December 1988. Nightingale defended the charge by challenging both the election procedures and the appropriateness of the unit certified. The Board found, on a motion for summary judgment, that Nightingale had violated the Act by refusing to bargain. The Board reiterated that it found Nightingale's objection to the manner of the election to be without merit. It ordered the company to bargain on request with the union.

Nightingale seeks review of this order, challenging both the manner of the election and the appropriateness of the unit of oil burner servicemen. We discuss each issue in turn.

II. MANNER OF ELECTION

Congress has conferred broad discretion on the Board to establish procedures and conduct representation elections. NLRB v. A.J. Tower Co., 329 U.S. 324, 333, 67 S.Ct. 324, 329, 91 L.Ed. 322 (1946). In formulating procedures for the conduct of an election, the Board is entitled to make "justifiable and reasonable adjustment[s] to the democratic process," id., to accommodate interests such as finality and minimizing delay. The Board's determination that the election was fairly conducted can be set aside only for an abuse of discretion. NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961); New England Lumber Division of Diamond v. NLRB, 646 F.2d 1, 3 (1st Cir.1981).

As the Supreme Court repeatedly has emphasized, "[t]he formulation of procedures was basically ... left within the discretion of the agencies to which Congress ... confided the responsibility for substantive judgments." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978).

Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by statute. But such circumstances, if they exist, are extremely rare.

Id. "[T]he test is not whether optimum practices were followed, but whether on all the facts the manner in which the election was held raises a reasonable doubt as to its validity." NLRB v. ARA Services, Inc., 717 F.2d 57, 68 (3d Cir.1983). The party opposing election results bears a heavy burden of demonstrating not only an impropriety, but also that it "was sufficiently prejudicial or sufficiently material to warrant setting the election aside." New England Lumber, 646 F.2d at 3. See also Fall River Savings Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.1981). An election will be set aside only where the defect "significantly impair[ed] the election process." 646 F.2d at 3. See also NLRB v. Lorimar Productions, Inc., 771 F.2d 1294, 1300 (9th Cir.1985).

Nightingale argues that the Board abused its discretion in finding that the election process was not significantly impaired when the clerical workers and drivers were allowed to vote and only one ballot was taken. The company claims that the procedure effectively changed the scope of the unit from that described in the notice of election. It argues that employees have an interest in the size of the collective bargaining unit seeking to represent them; it implies that the results of the election would likely have been different if the servicemen had known that only they were included in the unit. The Board, the company asserts, was required to avoid confusion by collecting ballots on each of three possible bargaining units: servicemen only; servicemen and drivers; and servicemen, drivers and clericals.

In making this argument, the company relies on three cases in...