Beloit Corp., Castings Div., Subsidiary of Harnischfeger Industries, Inc. v. N.L.R.B.
| Decision Date | 20 September 1988 |
| Docket Number | Nos. 87-2230,87-2409,s. 87-2230 |
| Citation | 857 F.2d 1154 |
| Parties | 129 L.R.R.M. (BNA) 2437, 57 USLW 2247, 110 Lab.Cas. P 10,859 BELOIT CORPORATION, CASTINGS DIVISION, a SUBSIDIARY OF HARNISCHFEGER INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Intervening Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
R. Clay Bennett, Keck Mahin & Cate, Chicago, Ill., for petitioner.
Frederick Havard, N.L.R.B., Washington, D.C., for respondent.
Before WOOD, Jr., CUDAHY, and RIPPLE, Circuit Judges.
This case is before the court pursuant to an NLRB order finding petitioner (the Company) in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (5) (the Act). The Board found that the Company had refused to bargain with and supply information to the intervening respondent (the Union), which the respondent (the Board) had recently certified as the exclusive bargaining representative of the employees. The Company admits that it has declined to bargain with the Union on the basis that it has no duty to bargain because the NLRB certification was improper. Under section 10 of the Act, the company can obtain judicial review of the NLRB certification and the underlying representation proceedings only through declining to bargain and after a Board determination that declining to bargain was an unfair labor practice in violation of section 8(a)(5). 29 U.S.C. Secs. 158(a)(5), 160. We decline to enforce the Board's decision and order.
On November 19, 1986, the Union filed a petition with the NLRB seeking to represent certain employees at the Company's South Beloit, Illinois, location. The Board's Regional Director conducted a hearing on the petition December 5. At the hearing the Company argued, among other things, that none of thirty-four laid-off employees were eligible to vote in the representation election, because they did not have a reasonable expectation of recall. After the hearing, on December 17, the Company announced that it planned to shut down its facility for an eleven-day period due to a downturn in business. The Company sent a letter the same day to the Regional Director to reopen the representation hearing record and receive into evidence the written notice that the Company planned to post notifying its employees of the shutdown.
The Regional Director issued his Decision and Direction of Election on December 19, and summarily denied the Company's motion to reopen the record, stating that "[w]hile this additional evidence appears relevant to the expectation of recall issue, I find that it is not material." The Director also concluded in his decision that ten of the thirty-four laid-off employees had a reasonable expectation of recall, and were therefore eligible to vote in the election.
On December 24, the Company requested that the Regional Director postpone the representation election because of the Company's eleven-day shutdown from December 25, 1986 to January 4, 1987. The Company cited section 11284 of the NLRB Casehandling Manual, which includes "[e]mployer's slack or closedown period" as an appropriate reason for extending the election date. The Regional Director denied the motion on December 29, finding "no sufficient reason for postponement." The Director set the election for January 16, 1987.
Via telegram dated December 30, the Company requested the Board to overrule the Regional Director and postpone the election. The Company followed up this request on January 6, 1987, with a request that the Board review the Regional Director's Decision and Direction of Election. The Company stated as grounds for review that the Director had (1) improperly concluded that ten laid-off employees had a reasonable expectation of recall and were therefore eligible to vote, and (2) improperly refused to reopen the record to accept previously unavailable evidence relating to the layoff issue.
The Board summarily denied the Company's request to overrule the Regional Director's decision not to postpone the election on January 8. On January 15, the Board issued an order denying the Company's request for review of the Director's decision, finding that it "raise[d] no substantial issues warranting review." The Board also found that there was no reason to reopen the record.
The election took place as scheduled on January 16, 1987. Of the valid ballots cast fifty-two were in favor of representation by the Union and fifty were against. The Board agent did not permit the Company's observer to challenge ballots cast by any of the laid-off employees the Board had earlier found to be eligible to vote.
The Company, on January 22, filed various objections to the conduct of the election. The Regional Director issued a supplemental decision on the Company's objections and its certification of representation on February 6, finding several of the Company's objections to be attempts to relitigate issues previously decided, and the others to be insufficient to warrant setting aside the election. He thus overruled the objections and certified the Union as the representative of the unit employees. The Company requested the Board to review the Regional Director's decision.
Shortly after certification, the Union requested that the Company bargain with it. The Company refused, and the Union filed an unfair labor practice charge. On March 26, the Board issued a complaint alleging that the Company had violated sections 8(a)(1) and (5) of the Act. The Company filed an answer on April 1, admitting its refusal to bargain and to furnish requested information to the Union, but denying that this conduct violated the Act, claiming that the Union was improperly certified. The Union's general counsel moved for summary judgment.
On May 27, the Board summarily denied the Company's request for review of the Director's decision, finding "no substantial issues warranting review." On May 28, the Board issued a notice to show cause why the general counsel's motion for summary judgment should not be granted. The Company filed its response June 10.
On July 30, the Board found that the Company had unlawfully refused to bargain with the Union in violation of the Act and granted the general counsel's motion for summary judgment. The Board ordered the Company to bargain with the Union and furnish it with its requested information. The Company appealed the Board's decision and order on August 4, 1987.
Because the Company concedes that it has refused to bargain and provide the Union with information, it is in violation of sections 8(a)(1) and (5) of the Act, unless, as the Company contends, the Union was not properly certified.
The Board enjoys broad discretion in establishing the rules for election campaigns, Mosey Mfg. Co. v. NLRB, 701 F.2d 610, 615 (7th Cir.1983) (en banc), and "[w]e will defer to the Board's selection of rules and policies to govern a particular election so long as those rules are reasonable." NLRB v. Browning-Ferris Indus. of Louisville, 803 F.2d 345, 347 (7th Cir.1986). Where factual issues are contested, the Board's factual determinations will be sustained if they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); NLRB v. Burkart Foam, Inc., 848 F.2d 825, at 832 (7th Cir.1988); Mosey Mfg., 701 F.2d at 614. As we stated in NLRB v. Indianapolis Mack Sales & Serv., Inc., however, "[a]lthough this standard of review accords the Board considerable discretion, it does not mean that we will simply rubber-stamp its decisions, thereby substituting judicial abdication for judicial review." 802 F.2d 280, 283 (7th Cir.1986). Moreover, unlike district court decisions, administrative agency decisions
cannot be sustained on a ground appearing in the record to which the agency made no reference; to the contrary, the Board's decision stands or falls on its express findings and reasoning.... The Board's appellate counsel cannot fill in the holes in the agency's decision; stated in another manner, it is the Board's order, not its petition for enforcement, that is the subject of our review. Thus, the post hoc arguments come too late.
Id. at 285. In analyzing the Board's decision and order, we must also examine the underlying opinion of the Regional Director, who directed the election and certified the Union as the representative of the employees.
The primary issue that the Company raises on this appeal is the propriety of the Regional Director's ruling that ten laid-off employees were eligible to vote in the representation election. The Company argues that the Director's action was improper for three reasons: (1) the record demonstrates that the ten employees had no reasonable expectation of recall, (2) the Director improperly refused to reopen the record to admit relevant evidence confirming that the employees had no reasonable expectation of recall, and (3) the NLRB improperly permitted laid-off employees to vote without allowing the Company to challenge their ballots. The Company also challenges the Director's refusal to postpone the election and certain of the Union's campaign practices. Because we agree with the Company that the Regional Director's finding that ten of the thirty-four laid-off employees had a reasonable expectation of recall was unsupported by the evidence, we need not discuss the Company's other arguments.
The Regional Director found that ten of the Company's thirty-four laid-off employees had a reasonable expectation of recall in the foreseeable future based on the following subsidiary findings.
The record shows that in 1985 the Employer laid off 17 production and maintenance...
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