Alois Box Co. v. Nat'l Labor Bd.
| Decision Date | 27 June 2000 |
| Docket Number | No. 99-1340,99-1340 |
| Citation | 216 F.3d 69 |
| Parties | (D.C. Cir. 2000) Alois Box Co., Inc.,Petitioner v. National Labor Relations Board, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application forEnforcement of an Order of the National Labor Relations Board
Edward B. Miller argued the cause and filed the briefs for petitioner.
David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Leonard R. Page, General Counsel, Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong,
Deputy Associate General Counsel. Frederick Havard, Supervisory Attorney, entered an appearance.
Before: Ginsburg, Henderson and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
The Alois Box Company petitions the court for review of a National Labor Relations Board order finding that the company violated 8(a)(1) and (5) of the National Labor Relations Act, see 29 U.S.C. 158(a)(1), (5) (1994), for refusing to bargain with Graphic Communications Union Local 415-S, AFL-CIO at the company's factory in Illinois. The company does not deny that it refused to bargain but contends that the union was never properly certified because three ballots were improperly excluded from the election tally. In addition, the company contends that the Board's grant of summary judgment was inappropriate, and contrary to Board Rule 102.24, because the company's response to the rule to show cause indicated that a genuine issue for hearing may exist. Because there is substantial evidence to support the Board's finding with regard to one of the three invalidated ballots and the company forfeited its right to challenge the Board's disposition of a second ballot, even if the Board's finding with regard to the third ballot is unsupported by substantial evidence, the result of the election would not change. Accordingly, because there are no legally significant factual issues as would preclude summary judgment, we deny the petition and grant the Board's cross application for enforcement.
On November 12, 1997, a representation election was conducted by the Board in which ballots were to be cast by members of the bargaining unit, defined as "[a]ll full-time and regular part-time production, maintenance and shipping employees employed by the Employer at its facility ... but excluding all other employees, office clericals, guards and supervisors as defined by the Act." The initial tally of the 33 opened ballots was 19 in favor of the union, 14 opposed to the union. Aside from the 33 opened ballots, seven unopened ballots were challenged by the union on the ground that they were cast by employees who were ineligible to vote in the representation election.
A hearing officer, considering six of the seven challenged ballots,1 found in favor of the union with respect to four of the six ballots--those cast by Jeff Miller, Manuel Garcia, Julius Rimdzuis, and Mato Brasic--on the grounds that Miller and Garcia are supervisors, that Rimdzuis lacks a community of interest with the bargaining unit, and that Brasic receives special privileges as the brother of the plant manager. The company filed exceptions to the hearing officer's recommendations, and the Board reversed as to Garcia, but otherwise affirmed the hearing officer's recommendations. As a result, four of the seven challenged ballots were determined to be ineligible. With the four ineligible ballots, the total number of valid ballots was reduced from 40 to 36, with 19 valid and counted for the union, 14 valid and counted against the union, and three--Garcia and the two employees the union challenged unsuccessfully before the hearing officer--uncounted. Because the three unopened ballots would not be determinative of the result of the election, the Board declined to order them opened and counted, and issued a certification of representation to the union. See Alois Box Co., Inc., 326 N.L.R.B. No. 110 (1998) ().
Seven months later, the union filed an unfair labor practice charge alleging that the company had refused to bargain collectively with the union. In its answer, the company admitted its refusal to bargain in order to challenge the certification, alleging that the union was not the representative of a majority of employees in the bargaining unit. The company asserted that facts would be introduced at a hearing to show that Miller was not a supervisor because in making
work assignments he did not exercise independent judgment, as clarified by recent Board and court precedent, and that Rimdzuis was a regular part-time employee who shared a community of interest with the unit employees. The Board's General Counsel moved for summary judgment on the grounds that the company sought to relitigate eligibility determinations that were "exhaustively" examined in the representation case, and that the company's "technical refusal to bargain" was sufficient to find that the company had violated 8(a)(1) and (5) of the Act, under Skandia Foods, Inc., 301 N.L.R.B. No. 35 (1991).
In response to the notice to show cause why summary judgment should not be granted, the company argued that the Board had erroneously adopted the hearing officer's barebones conclusion that Miller was a supervisor based on work assignments that were never identified and independent judgment that was never described, and that more recent cases demonstrated the findings were insufficient to show supervisory status.2 With regard to Rimdzuis, the company argued the Board's error was clear from Time Warner Cable v. NLRB, 160 F.3d 1 (D.C. Cir. 1998). The company also argued that Board Rule 102.24 did not require it to set forth precise facts through affidavits or exhibits in order to defeat a motion for summary judgment, as long as it was clear from the face of the answer that a genuine issue of fact exists. The Board granted summary judgment, ruling that all representation issues were or could have been litigated in the prior representation proceeding, and noting that the company neither offered to present at a hearing any newly discovered and previously unavailable evidence nor alleged any special circumstances requiring the Board to reexamine its earlier decision. See Alois Box Co., 328 N.L.R.B. No. 134 (1999).
In petitioning for review of the Board's certification of the union as the exclusive bargaining representative of all "full time and regular part-time production, maintenance and shipping employees," the company's contentions that the Board erred in disqualifying three ballots hinge largely on its interpretation of the evidence in the light most favorable to it, and with regard to Miller, on its reading of Board and court precedent regarding supervisors. If the Board is affirmed with regard to at least two of the three unopened ballots at issue here (Miller, Rindzuis, and Brasic), the outcome of the election remains unchanged regardless of whether the remaining unopened ballots were voted against the union. The Board's factual findings are entitled to be affirmed if supported by substantial evidence on the record as a whole, see Passaic Daily News v. NLRB, 736 F.2d 1543, 1550 (D.C. Cir. 1984), and with regard to the determination of supervisory status, given the large measure of informed discretion involved and the Board's corresponding expertise in this area, the substantial evidence test "takes on special significance."Oil, Chemical & Atomic Workers Int'l Union v. NLRB, 445 F.2d 237, 241 (D.C. Cir. 1977).
We address first, the company's challenge to the Board's determination that Miller was a supervisor; second, the company's challenge to the Board's finding that Rimdzuis lacked community of interest with members of the bargaining unit;and third, the company's attempt to challenge the Board's determination that Brasic received special work-related benefits as a result of being the brother of the plant manager.
The company maintains that there is not substantial evidence to support the Board's determination that Jeff Miller was a supervisor and, thus, was ineligible to vote in the representation election. Describing Miller as a "maintenance man," the company maintains that he is nothing more than a non-supervisory employee of the unit. The company points to the evidence that Miller was stripped of his supervisory
status in 1995 due to unsatisfactory performance, that he accepted a non-supervisory position instead, that he eats his lunch in the maintenance area, that he punches a time clock, and that his main area of operation is in the maintenance shop and out on the floor fixing machines. Although acknowledging that Miller "has been assigned the job of reporting early in the morning and handing out some work orders which Brasic, the Plant Manager, has assigned for that day," the company contends that Miller exercised no independent judgment in carrying out such tasks and that absent such evidence he cannot be a supervisor. Yet there was evidence that Miller independently assigns work to employees, changes the plant manager's assignments, instructs employees to cease work, and has been held out by the company as a supervisor even after he was officially stripped of supervisory authority in 1995, causing some employees to regard Miller as having supervisory authority. Moreover, the company's failure to call Miller as a witness, and its failure to explain its decision, warrants the inference that his testimony would have been unfavorable to the company. See Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 29 (D.C. Cir. 1998); UAW v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972). Given the evidence to support the...
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