Bio-Science Laboratories v. N.L.R.B.
| Decision Date | 18 August 1976 |
| Docket Number | BIO-SCIENCE,No. 74-2800,74-2800 |
| Parties | 93 L.R.R.M. (BNA) 2154, 44 A.L.R.Fed. 509, 79 Lab.Cas. P 11,580 LABORATORIES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert E. Williams (argued), Washington, D. C., for petitioner.
Joseph A. Oertel (argued), NLRB, Washington, D. C., for respondent.
Before CHAMBERS and GOODWIN, Circuit Judges, and SCHNACKE, * District Judge.
In late 1966, the laboratory and related employees of Bio-Science, a medical reference laboratory, designated the International Chemical Workers Union, Local 805, as their bargaining agent.
While still covered by the 1970 basic contract, the Union and Bio-Science reached an impasse over a wage reopener, and on March 15, 1972, the employees went on strike. During the strike, Bio-Science eliminated some of the positions held by the strikers and hired permanent replacements for some others. On April 9, 1972, the strike ended. Those employees whose positions were vacant returned to work. The other strikers were put on a preferential reinstatement list. Several persons on the preferential reinstatement list were offered reinstatement between April and December of 1972. Some accepted while others declined and were eliminated from the list.
On December 29, 1972, Bio-Science filed a petition for an election to determine if the bargaining unit wished to retain the Union as its representative. A secret ballot election was held on February 22, 1973. Thirty-seven persons on the preferential reinstatement list were allowed to cast challenged ballots after Bio-Science challenged their right to vote. The challenged ballots were sufficient in number to affect the outcome of the election. The Regional Director issued a report recommending that all challenged votes be counted. Bio-Science appealed to the Board, which remanded the matter to the Director for a hearing on whether the voters in fact retained an interest in returning to work with Bio-Science.
After the hearing, the hearing officer held that the evidence presented by Bio-Science was insufficient, in all but three cases to rebut the presumption that the employees remaining on the list would wish to return to their jobs. Further, the hearing officer relied on former strikers' affirmative responses to letters sent out by Bio-Science to those on the preferential reinstatement list inquiring whether they were still interested in returning to their jobs. The Board affirmed the hearing officer's determination except to disqualify one additional voter.
After the Board's review of the challenges, the thirty-three votes were counted and, when added to the other votes, made a majority in favor of Union representation. The Regional Director certified the Union as the bargaining agent for the employees, but Bio-Science refused to bargain. The Board granted summary judgment against Bio-Science on the resultant unfair labor practice complaint.
Bio-Science contends that its refusal to bargain was proper since the certification of the Union by the Board was contrary to law because the Board incorrectly rejected petitioner's challenges to the thirty-three ballots. First, it is argued that the former strikers on the reinstatement list were not, as a class, eligible to vote. Second, petitioner argues that the evidence does not support a determination that the thirty-three voters were still interested in returning to work with petitioner and that the presumption employed in this regard was unwarranted.
Generally, the right to vote in a representation election has been limited to employees both hired and working on the eligibility date. NLRB v. Family Heritage Home-Beaver Dam, Inc., 491 F.2d 347 (7th Cir. 1974). Section 9(c)(3) of the National Labor Relations Act (29 U.S.C. § 159(c)(3)), provides in relevant part:
Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this Act in an election conducted within twelve months after the commencement of the strike.
The strikers, while on strike and while on the list, remained employees of the petitioner. Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969). See also NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967). The question of their right to vote under 9(c)(3) revolves around the meaning of the term "(e)mployees engaged in an economic strike." Bio-Science argues that this phrase limits the right to vote granted by 9(c)(3) to employees currently actively engaged in a strike. The Board argues that the phrase refers to employees actively on strike and those on a preferential reinstatement list following a strike, so long as the election occurs within twelve months of the...
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