Bokum Resources Corp. v. N.L.R.B.

• Decision Date: 29 July 1981
• Docket Number: No. 79-2140,79-2140
• Parties: 107 L.R.R.M. (BNA) 3230, 92 Lab.Cas. P 12,927 BOKUM RESOURCES CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1021

655 F.2d 1021

107 L.R.R.M. (BNA) 3230, 92 Lab.Cas. P 12,927

BOKUM RESOURCES CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 79-2140.

United States Court of Appeals, Tenth Circuit.

Submitted May 11, 1981.

Decided July 29, 1981.

Wayne E. Bingham and Douglas G. Voegler of Pickering & Bingham, Albuquerque, N. M., for petitioner.

Richard B. Bader and Lynne E. Deitch, Attys. and William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., for respondent.

Before McWILLIAMS and LOGAN, Circuit Judges, and BOHANON, District Judge. ^*

McWILLIAMS, Circuit Judge.

Bokum Resources Corp. filed a petition to review, and set aside, a decision and order of the National Labor Relations Board which found that Bokum committed unfair labor practices in violation of section 8(a) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1976). ¹ Specifically, the NLRB found that Bokum refused to bargain with the International Union of Operating Engineers, Local 953, AFL-CIO, and the Laborers International Union of North America, Local 16, AFL-CIO, which had been certified by the Board as the employees' bargaining representatives following a representation election. By cross-application the Board seeks enforcement of its order.

Bokum is a mining company incorporated in Delaware and engaged in uranium mining in New Mexico. The bargaining unit here involved is composed of all construction and shaft sinking employees working at Bokum's mine at Marquez, New Mexico, excluding office clerical employees, guards, watchmen and supervisors.

In a consent election in which thirty-four employees were eligible to vote, seventeen voted for the Union and ten voted against the Union. Four votes were challenged, and three eligible employees did not vote. Bokum filed timely objections, claiming that there was Union misconduct which adversely affected the election. Thereafter, the Regional Director of the NLRB conducted an administrative investigation of Bokum's objections in which the parties were allowed to submit evidence. The Regional Director then issued his report, in which he held that Bokum's objections were without merit, and he recommended that the Union be certified. Bokum filed timely objections to the Regional Director's report. On review, the Board adopted the Director's report and certified the Union.

Thereafter, Bokum refused to bargain with the Union, which then filed charges of unfair labor practices. Based on the Union's charges, the Regional Director issued a complaint. By answer, Bokum admitted that it had refused to bargain with the Union, and again denied the validity of the Board's certification of the Union. It was in this setting that the General Counsel for the NLRB filed motions to transfer the case to the Board and for summary judgment. The Board ordered the proceeding transferred, and then ordered Bokum to show cause why summary judgment should not be entered. Bokum, by response, reiterated its previously stated objections to the representation election and requested an evidentiary hearing.

The Board granted summary judgment, noting that all of the issues raised by Bokum in the unfair labor practices proceeding had been raised, or could have been raised, in the underlying representation proceeding. The NLRB further found that Bokum, in response to the motion for summary judgment, made no claim that it had newly discovered or previously unavailable evidence, nor did it allege any special circumstances which required a hearing into the fairness of the representation election. Accordingly, Bokum was ordered by the Board to bargain with the Union. The Board's decision and order appear at 245 N.L.R.B. 84 (1979). It is this order which Bokum seeks to have set aside, and which the Board by cross-application asks to have enforced.

In our view, Bokum, under the circumstances, was not entitled to an evidentiary hearing on its claim of election irregularities, and the unfair labor practice proceeding was ripe for summary judgment. In NLRB v. Moran Oil Producing & Drilling Corp., 432 F.2d 746 (10th Cir. 1970), cert. denied, 401 U.S. 941, 91 S.Ct. 941, 28 L.Ed.2d 221 (1976), appears the following pertinent comment:

The Company argues that summary disposition was improper because, in the unfair labor practice proceedings, it was entitled to an evidentiary hearing on the correctness of the Director's representation determinations. The same contention has been presented to us in the cases of Meyer Dairy, Inc. v. National Labor Relations Board, 10 Cir., 429 F.2d 697, National Labor Relations Board v. Gold Spot Dairy, Inc., 10 Cir., 432 F.2d 125, and National Labor Relations Board v. Jackson Farmers, Inc., 10 Cir., 432 F.2d 1042 (cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971)). We have held that under § 3(b) the Board can delegate its unit determination functions to the regional director; that the decisions of the latter, if not set aside by the Board, are entitled to the same weight as Board determination; and that the limited review provided by 29 CFR § 102.67 applied to Board review of any delegated action of a regional director. The Company does not claim that it has any newly discovered or previously unavailable evidence or that it was foreclosed from presenting any substantial and material evidence at the representation proceedings. Under the authorities cited, the matter was ripe for determination on the motion for...