Assoc. Milk Producers v. Nat'l Labor Relations Bd.
| Decision Date | 22 October 1999 |
| Docket Number | No. 98-1481,98-1481 |
| Citation | 193 F.3d 539 |
| Parties | (D.C. Cir. 1999) Associated Milk Producers, 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 for Enforcement of an Order of the National Labor Relations Board
Patrick W. Jordan argued the cause for petitioner. With him on the briefs was Bradford K. Newman.
Jill A. Griffin, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief was Frederick C. Havard, Supervisory Attorney, Linda Sher, Associate General Counsel, John D. Burgoyne, Acting Deputy Associate General Counsel.
Before: Edwards, Chief Judge, Wald and Williams, Circuit Judges.
Opinion for the Court Filed by Chief Judge Edwards.
The National Labor Relations Board ("Board") seeks to enforce an order directing Associated Milk Producers, Inc. ("Associated Milk") to bargain in good faith with the Chauffeurs, Teamsters and Helpers, Local Union No. 238 ("Union"). The Board found Associated Milk in violation of 8(a)(1) and (5) of the National Labor Relations Act ("NLRA") because Associated Milk refused to bargain with the Union after it had been certified. See 29 U.S.C. 158(a)(1) and (5) (1994). The Union had been certified after an election in which 23 votes were cast for the Union, 20 against, and challenges to 4 ballots were sustained. Associated Milk argues that the certification of the election was invalid, because challenges to three of the ballots should have been rejected. Associated Milk seeks to have this court accept the votes of the challenged employees, reverse the Board's certification of the election, and vacate the Board's order that Associated Milk bargain in good faith.
The Union challenged the votes of three employees who, it argued, were not a part of the stipulated bargaining unit. Prior to the election, the Union and Associated Milk agreed to a stipulated bargaining unit consisting of "employees ... employed by the Employer at its Arlington, Iowa facility."The Board's Regional Director determined that the stipulation is unambiguous, but he then went on to treat it as if it were ambiguous by conducting an ex parte "investigation" which led him to conclude that the three employees did not work at the Arlington facility. For the most part, the Regional Director's decision, affirmed by the Board, has no basis in a record. This is because his so-called investigation fell short of a hearing pursuant to which a record could have been established. In the absence of such a record, there is no basis upon which to uphold the judgment of the Board. Accordingly, we remand the case to the Board for a hearing to determine whether the challenged employees are part of the stipulated bargaining unit.
It is clear from the briefs and arguments in this case that the parties, and possibly the Board as well, are terribly confused over the meaning of this court's decision in Avecor, Inc. v. NLRB, 931 F.2d 924 (D.C. Cir. 1991), which we herein clarify. The point of confusion is over the Board's responsibility when it is faced with a stipulated bargaining unit that is ambiguous. As we explain below, in such a situation, the Board must seek to determine the parties' intent through normal methods of contract interpretation, including the examination of extrinsic evidence. Only when the stipulation is a nullity from which no intent can be discerned should the Board ignore the stipulated agreement and determine the bargaining unit on the basis of its community of interest test.
The facts surrounding the election and the stipulated bargaining agreement are un-controverted. After the Union petitioned to represent Associated Milk's employees, the Union and Associated Milk stipulated to a bargaining unit. The stipulation provides that the Union would represent
[a]ll full-time and regular part-time production and maintenance employees, including lead persons, operators,baggers, sanitation workers, truck mechanics, milk quality technicians, maintenance workers, local drivers, bulktruck drivers and waste water operator employed by the Employer at its Arlington, Iowa facility; excluding allover-the-road drivers, milk quality lab clerical employees, other clerical employees, salespersons, professional employees, guards and supervisors, as defined by the Na-tional Labor Relations Act, as amended.
Decision and Direction of Election, reprinted in Petitioner's Appendix ("P.A.") 18 (emphasis added). The Regional Director approved the stipulation, noting that it constitutes an appropriate unit for the purposes of collective bargaining within the meaning of 9(b) of the NLRA. See id.
During the representation election, the Union challenged the votes of three bulk truck drivers on the basis that those drivers were employed not at Associated Milk's Arlington, Iowa facility, but, instead, at Associated Milk's Fredericksburg facility. Associated Milk disagreed. The stipulation is clear that the bargaining unit includes only employees who work at the Arlington facility; it is unclear whether the three challenged drivers fit that description.
Bulk truck drivers are responsible for delivering whole milk from neighboring farms to Associated Milk's processing facilities. Associated Milk employs a number of bulk drivers, most of whom deliver all of their loads to the Arlington facility. The three challenged drivers, however, deliver three out of every four loads to Associated Milk's Fredericksburg facility. Only the fourth load is delivered to Associated Milk's Arlington facility. The Fredericksburg facility is, however, a part of the Arlington Division, which is based at the Arlington facility. As a result, in addition to making one out of four deliveries to Arlington, there are other factors to suggest the drivers are employed at the Arlington facility. For instance, the challenged drivers wash and maintain their trucks at the Arlington facility, they are supervised by someone at Arlington, and all of their personnel records are kept at Arlington.
Despite this ambiguity, the Regional Director found that the stipulation is unambiguous. He did not, however, treat it that way: He treated it like an ambiguous stipulation by conducting an ex parte investigation to determine whether, in fact, the challenged bulk drivers worked at the Arlington facility. Based on the evidence he gathered through the investigation, the Regional Director upheld the Union's challenges. See Supplemental Decision and Certification of Representative, reprinted in P.A. 26. Most of the evidence he gathered, however, is not in the record.
Associated Milk appealed the Regional Director's decision asking the Board either to reverse the Regional Director's findings on the challenged ballots or to remand for a hearing according to the Board's community of interest standard. Associated Milk's position was muddled. On the one hand, it argued that the drivers fall within the terms of the stipulation; on the other, it argued that the parties' intent was not clear and that the Board should determine the bargaining unit on the basis of the community of interest standard. In any case, Associated Milk disputed many of the Regional Director's findings.
Despite these factual disputes, and without much of a record to review, the Board denied Associated Milk's appeal. Soon thereafter, the Union attempted to bargain with Associated Milk. Associated Milk refused to bargain, choosing instead to precipitate an unfair labor practice charge so that it could seek review of the Board's decision. See Family Serv. Agency San Francisco v. NLRB, 163 F.3d 1369, 1373 n.2 (D.C. Cir. 1999) (). The Union then filed a charge against Associated Milk and, based on that charge, the Regional Director filed a complaint alleging that Associated Milk's refusal to bargain with the Union was an unfair labor practice. The Board, on a motion for summary judgment, upheld the complaint and ordered Associated Milk to bargain in good faith with the Union. This appeal followed.
Under 10(e) and (f) of the NLRA, 29 U.S.C. 160(e), (f) (1994), this court will "reverse the Board if, upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence." Micro Pacific Dev. Inc. v. NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999) (citation and internal quotation marks omitted). Substantial evidence Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Associated Milk argues that the Board's order should be overturned because the stipulation unambiguously includes the three challenged drivers. In the alternative, Associated Milk argues that if the stipulation is ambiguous, the Board was required to ignore the stipulation and determine the status of the three drivers by employing its normal community of interest standard. As petitioners put it, "either the stipulation is unambiguous, and the...
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