Bituma Corp. v. N.L.R.B., Nos. 93-1901

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN, FAGG, and BOWMAN; FAGG
Citation23 F.3d 1432
Parties146 L.R.R.M. (BNA) 2281, 128 Lab.Cas. P 11,089 BITUMA CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. BITUMA CORPORATION, Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner.
Decision Date11 May 1994
Docket Number93-2268,Nos. 93-1901

Page 1432

23 F.3d 1432
146 L.R.R.M. (BNA) 2281, 128 Lab.Cas. P 11,089
BITUMA CORPORATION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
BITUMA CORPORATION, Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Petitioner.
Nos. 93-1901, 93-2268.
United States Court of Appeals,
Eighth Circuit.
Submitted Dec. 15, 1993.
Decided May 11, 1994.

Page 1434

Robert W. Rasch, Orlando, FL, argued (Thomas P. Moran and Kelly T. Blystone, on the brief), for petitioner.

Margaret Luke, Washington, DC, argued, for respondent.

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.

FAGG, Circuit Judge.

This labor law case arises from the certification of a union following a representation election victory at Bituma Corporation's asphalt production equipment plant in Marquette, Iowa. The issues raised involve the timing of the representation election, the voting eligibility of laid-off employees, and a pro-union employee's statements about Bituma to co-employees. After the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union) won the election, the National Labor Relations Board (NLRB) certified the Union as the collective bargaining agent for Bituma's production and maintenance employees. To challenge the certification, Bituma refused to bargain with the Union, and the Union filed an unfair labor practice charge with the NLRB. The NLRB found Bituma violated 29 U.S.C. Sec. 158(a)(1) and (5), and ordered Bituma to bargain with the Union. Bituma filed this appeal seeking review of its refusal to bargain. See 29 U.S.C. Secs. 160(f), 159(d) (1988). In its cross appeal, the NLRB seeks enforcement of its bargaining order. We deny the petition for review and grant enforcement of the NLRB's order.

Page 1435

Bituma manufactures and distributes asphalt plants and other types of asphalt production equipment to build and repair roads. Road builders place almost all of Bituma's production orders. Because roads are built primarily in the summer, the contractors place their orders in the autumn. Bituma begins producing asphalt plants in October, November, and December for delivery beginning in February and March. Bituma's orders for asphalt plants substantially decrease in the spring.

Bituma's work force fluctuates annually in conjunction with this production cycle. Bituma generally starts hiring extra workers in the autumn and reaches its peak employment of production and maintenance employees in January or February. According to an exhibit that Bituma introduced at the pre-election hearing, entitled "History of Terminations Due to Lack of Work," 209 was the average peak number of production and maintenance employees for the years 1985 to 1992. Throughout the summer months, Bituma lays off its excess work force (according to the exhibit, an average of 86 employees each year) due to lack of work. Bituma maintains a core staff of about 70 permanent employees during the slack period to produce parts for stock, provide spare parts, and service warranty items. When production increases again in the autumn, Bituma tries to recall laid-off employees and can usually recall 30 to 40%. Bituma employed 212 production and maintenance employees during its peak production season in the first part of 1992. In May 1992, Bituma laid off 89 (about 42%) of its production and maintenance employees. Unlike Bituma's earlier layoffs, Bituma gave the employees a written layoff notice that stated the layoff was not short-term and the possibility of recall was remote. In addition, the manager in charge of recalling employees told the laid-off employees he did not know when or if they would be recalled.

The Union filed a representation petition in May 1992, and in June the NLRB held a pre-election hearing. Bituma asked the NLRB to postpone the election until Bituma's next projected seasonal peak in February 1993, and also requested a decision on the voting eligibility of the 89 laid-off employees. The NLRB denied Bituma's requests and conducted a representation election in July 1992. In addition to Bituma's working employees, 35 of the 89 laid-off employees cast ballots. The NLRB challenged the ballots cast by the laid-off employees, and the 35 votes were not counted. The Union won the election by a vote of 61 to 59. Bituma objected to the election and the failure to count the challenged ballots. After conducting a postelection hearing, a hearing officer recommended upholding the NLRB's challenges to the 35 ballots and overruling Bituma's objections. The NLRB adopted the hearing officer's recommendations, and certified the Union.

On appeal, Bituma first argues the NLRB should not have directed an immediate election because Bituma did not have a substantial and representative complement of production and maintenance employees at its Marquette plant in June 1992. We disagree.

We review for abuse of discretion an NLRB decision to hold an election at a particular time. NLRB v. Broyhill Co., 528 F.2d 719, 721 (8th Cir.1976); NLRB v. Engineers Constructors, Inc., 756 F.2d 464, 467 (6th Cir.1985). To decide the appropriate time for an initial representation election when an employer has a fluctuating work force, the NLRB must balance two often-conflicting goals: insuring maximum employee participation in selecting a bargaining agent, and permitting current employees representation as quickly as possible. NLRB v. AAA Alternator Rebuilders, Inc., 980 F.2d 1395, 1397 (11th Cir.1993); NLRB v. Asbury Graphite Mills, Inc., 832 F.2d 40, 42 (3d Cir.1987); Engineers Constructors, 756 F.2d at 467; see Broyhill, 528 F.2d at 722. To strike a balance, the NLRB decides on a case-by-case basis whether the employer's present work force is "substantial and representative" of the projected future work force. AAA Alternator Rebuilders, 980 F.2d at 1397; Asbury Graphite Mills, 832 F.2d at 43. If so, the NLRB will direct a prompt election. AAA Alternator Rebuilders, 980 F.2d at 1397. The NLRB considers several factors in deciding whether the present work force is substantial and representative: the

Page 1436

size of the work force at the time of the representation hearing, the time expected to elapse before a full work force is present, the certainty of the projected increase, the job...

To continue reading

Request your trial
4 practice notes
  • Opportunity Homes, Inc. v. N.L.R.B., Nos. 95-5605
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 5, 1997
    ...the respondents' continuing refusal to recognize the union as their representative bargaining agent. See, e.g., Bituma Corp. v. N.L.R.B., 23 F.3d 1432, 1435 (8th Cir.1994)(representation petition filed in May 1992, pre-election hearing conducted in June 1992, election conducted in July An N......
  • Caldwell v. City of Selma, Case No. 1:13-cv-00465-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 29, 2014
    ...totality of the circumstances giving rise to the consent, this was a consensual search that did not violate the Fourth Amendment. Kim, 23 F.3d at 1432. Considering the totality of the circumstances, the Court finds that Defendant Burgamy's initial stop and search of Plaintiff was not an unr......
  • Durham School Services, LP, 15-RC-096096
    • United States
    • National Labor Relations Board
    • May 9, 2014
    ...Inc. v. NLRB, 490 F.3d 957, 963 (D.C. Cir. 2007); NLRB v. Queensboro Steel Corp., 217 F.3d 839 (4th Cir. 2000); Bituma Corp. v. NLRB, 23 F.3d 1432, 1438 (8th Cir. 1994); St. Margaret Memorial Hospital v. NLRB, 991 F.2d 1146, 1158 (3d Cir. 1993); NLRB v. Best Products Co., Inc., 765 F.2d 903......
  • New World Communications v. National Labor Relations Board, No. 99-2913
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 13, 2000
    ...999 F.2d 1268, 1271 (8th Cir. 1993). We review an election eligibility decision for abuse of discretion. See Bituma Corp. v. N.L.R.B., 23 F.3d 1432, 1436 (8th Cir. New World contends that Jahn's ballot should not have been counted. It argues that she was ineligible to vote in the election b......
4 cases
  • Opportunity Homes, Inc. v. N.L.R.B., Nos. 95-5605
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 5, 1997
    ...the respondents' continuing refusal to recognize the union as their representative bargaining agent. See, e.g., Bituma Corp. v. N.L.R.B., 23 F.3d 1432, 1435 (8th Cir.1994)(representation petition filed in May 1992, pre-election hearing conducted in June 1992, election conducted in July An N......
  • Caldwell v. City of Selma, Case No. 1:13-cv-00465-SAB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 29, 2014
    ...totality of the circumstances giving rise to the consent, this was a consensual search that did not violate the Fourth Amendment. Kim, 23 F.3d at 1432. Considering the totality of the circumstances, the Court finds that Defendant Burgamy's initial stop and search of Plaintiff was not an unr......
  • Durham School Services, LP, 15-RC-096096
    • United States
    • National Labor Relations Board
    • May 9, 2014
    ...Inc. v. NLRB, 490 F.3d 957, 963 (D.C. Cir. 2007); NLRB v. Queensboro Steel Corp., 217 F.3d 839 (4th Cir. 2000); Bituma Corp. v. NLRB, 23 F.3d 1432, 1438 (8th Cir. 1994); St. Margaret Memorial Hospital v. NLRB, 991 F.2d 1146, 1158 (3d Cir. 1993); NLRB v. Best Products Co., Inc., 765 F.2d 903......
  • New World Communications v. National Labor Relations Board, No. 99-2913
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 13, 2000
    ...999 F.2d 1268, 1271 (8th Cir. 1993). We review an election eligibility decision for abuse of discretion. See Bituma Corp. v. N.L.R.B., 23 F.3d 1432, 1436 (8th Cir. New World contends that Jahn's ballot should not have been counted. It argues that she was ineligible to vote in the election b......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT