Sears, Roebuck & Co. v. N.L.R.B.
| Decision Date | 19 February 1992 |
| Docket Number | D,No. 546,546 |
| Parties | 139 L.R.R.M. (BNA) 2703, 121 Lab.Cas. P 10,010 SEARS, ROEBUCK & COMPANY, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. ockets 91-4117, 91-4145. |
| Court | U.S. Court of Appeals — Second Circuit |
S. Richard Pincus, Chicago, Ill. (Joshua D. Holleb, Fox and Grove, Chartered, Joseph M. Kehoe, Jr., Sears, Roebuck & Co., of counsel), for petitioner-cross-respondent.
Fred L. Cornnell, Washington, D.C. (Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Charles Donnelly, Supervisory Atty., N.L.R.B., of counsel), for respondent-cross-petitioner.
Before MINER and ALTIMARI, Circuit Judges. *
Petitioner-cross-respondent Sears Roebuck & Company seeks review of a National Labor Relations Board ("NLRB") order directing Sears to bargain with the union certified as the representative of Sears' automotive employees at its Maplewood, Minnesota store, after a certification election. The NLRB found that Sears had committed an unfair labor practice in violation of section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1), by refusing to bargain with the union. The NLRB cross-petitions for enforcement of its order. Sears contends that its refusal to bargain was justified because the NLRB Regional Director conducted an invalid certification election. Specifically, Sears claims that the election occurred without a prior determination of the size and composition of the bargaining units, thereby denying voters an opportunity to make an informed choice. In addition, Sears contends that the notice sent by the Regional Director to explain the situation regarding the undefined units failed to provide the necessary information. We hold that postponement until after the election of a determination as to the unit's configuration was within the scope of the NLRB's authority to prescribe election procedures, and did not violate the employees' right to informed voting. Accordingly, we grant the Board's application for enforcement.
On January 29, 1990, the United Steelworkers of America, AFL-CIO, CLC (the "union") petitioned for certification as the exclusive bargaining representative of the employees at the Sears store located in the Maplewood Mall in Maplewood, Minnesota. The store consists of two distinct areas. The first, the main sales floor, is attached directly to the shopping mall and houses most of the merchandise and about 320 employees. The second area employs approximately fifty workers and is known as the automotive "backshop," where customer cars are serviced. The backshop is connected to the main Sears facility but not directly to the rest of the mall. The backshop employs several different types of workers, including mechanics, service advisors, parts attendants, and cashiers. Each of these groups of employees performs specific functions when a customer brings a car in for service.
Another group of five automotive-oriented employees is employed in the mall portion of the store. These "automotive floor sales employees" sell the company's automotive products from the main sales floor. They do not service customer vehicles, but merely sell parts and accessories and advise customers on the proper usage of these products. As such, the automotive floor employees perform duties similar to those performed by members of the backshop staff, particularly the service advisors and parts attendants.
The union proposed the certification election for several different bargaining units comprised of various groups of employees at the store. One proposed unit consisted of the backshop staff in combination with the automotive floor sales employees. Sears supported this position. The Regional Director initially rejected this idea and split the store into two units, one composed solely of backshop employees and the other composed of all remaining employees. The company moved to reopen the proceeding for inclusion of the automotive floor sales employees in the backshop unit. The Regional Director denied the motion to reopen, but was unable to conclude which unit should embrace the automotive floor In preparation for the elections, the Regional Director sent a notice for Sears to post in the workplace explaining how the election would be conducted. The notice consisted of three panels, with an attachment folded up behind the middle panel for mailing purposes. The attachment detailed the special voting posture of the automotive floor sales employees and the circumstances for including their votes. Sears posted the notices several weeks before the election, but failed to fold down the attachment. Approximately twenty minutes before voting commenced, the monitoring officer from the Regional Director's office realized that the attachment had not been exposed and corrected the mistake. Thus, not all the voters were notified as to how the automotive floor staff votes would be counted.
staff. As a consequence, the Director ordered those employees to vote challenged ballots in both elections. Under this procedure, the automotive floor staff votes would not be counted with either unit immediately. If, after the final tabulation, their ballots were determinative of the outcome in either unit, appropriate unit placement for the automotive floor employees would be decided at a post-election proceeding. Sears sought review of this ruling. In the interim, elections were scheduled for June 1, 1990. On May 31, the NLRB denied Sears' request for review
The union lost the certification election by a large margin in the unit that included all but the backshop employees. In the unit composed solely of backshop employees, however, the union prevailed by a five vote margin, twenty-four votes to nineteen, causing the as yet uncounted ballots of the five automotive floor sales employees to be determinative. The Regional Director's subsequent investigation led to a decision to place the automotive floor staff in the unit with the backshop personnel. The additional ballots of the floor staff then were counted, and the union thereupon prevailed by a margin of twenty-five votes to twenty-three. The NLRB certified the union as the unit's exclusive bargaining representative, but Sears refused to bargain with it. The union filed an unfair labor practice charge, and the Regional Director issued a complaint. The company answered by denying the validity of the election and hence the NLRB's certification of the union. The NLRB granted the General Counsel's request for summary judgment and directed Sears to bargain with the union. Sears then petitioned this Court for review of the Board's decision and order, and the NLRB cross-petitioned for enforcement.
Courts afford the NLRB broad latitude to develop and implement the procedures for certification elections. NLRB v. Parsons School of Design, 793 F.2d 503, 507 (2d Cir.1986) (citation omitted); NLRB v. Lorimar Productions, Inc., 771 F.2d 1294, 1300 (9th Cir.1985). The Board's discretion in this area stems from its function to expedite labor elections and to eliminate meritless appeals designed to delay those elections. Hamilton Test Systems, New York, Inc. v. NLRB, 743 F.2d 136, 140 (2d Cir.1984). Thus, the filing of a request for review of a regional director's decision does not stay an election authorized by the regional director unless the NLRB orders otherwise. 29 C.F.R. § 102.67(b); see Hamilton, 743 F.2d at 140. In addition, the determination of a unit's composition need not be made before the election so long as the regional director develops " 'a balloting process under which the election c[an] be held, whatever the eventual decision might be on the appropriate unit.' " Hamilton, 743 F.2d at 141 (). The procedure devised must permit the employees to make an informed choice of a collective bargaining representative. Parsons, 793 F.2d at 507; Hamilton, 743 F.2d at 141 (). In Parsons and Hamilton, the election notice from the NLRB to the employees described a bargaining unit different from the one ultimately established and did not alert employees to the possibility of change. Parsons In the instant case, the Regional Director exercised the prerogative of withholding a determination on the unit placement of the automotive floor sales employees until after the election. This decision required the Director to devise a voting procedure to ensure that future placement of those employees would not adversely effect the conduct of the election, regardless of the eventual unit composition. Parsons, 793 F.2d at 506; Hamilton, 743 F.2d at 140. Under the procedure constructed, the automotive floor employees cast ballots in the elections held for both units within the store. If those ballots could change the result of either unit's balloting, a proceeding would follow to decide on proper unit placement for those five employees. After placement, those votes would be added to the tally from the workers already included in the unit to decide the outcome.
93 F.2d at 504-05; Hamilton, 743 F.2d at 138.
The union's margin of victory in the backshop election triggered this proceeding, and resulted in the inclusion of the automotive floor employees in the backshop unit. With the ballots of these employees, the union still prevailed. It becomes our task to determine whether the procedure "informed the voters of the possible alternatives in the selection of the bargaining unit and ... permitted them to vote accordingly." Hamilton, 743 F.2d at 141; see Parsons, 793 F.2d at 507; Lorimar, 771 F.2d at 1302. In doing so, w...
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