Boston Insulated Wire & Cable Systems v. N.L.R.B., 82-4420
| Citation | 703 F.2d 876 |
| Decision Date | 25 April 1983 |
| Docket Number | No. 82-4420,82-4420 |
| Parties | 113 L.R.R.M. (BNA) 2241, 97 Lab.Cas. P 10,067 BOSTON INSULATED WIRE & CABLE SYSTEMS, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. Summary Calendar. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Robert G. Hulteng and Joseph A. Schwachter, San Francisco, Cal., for petitioner-cross-respondent.
Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D.C., for respondent-cross-petitioner.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before GEE, RANDALL and TATE, Circuit Judges.
The petitioner, Boston Insulated Wire and Cable Systems, Inc. ("Boston Insulated"), seeks review of a National Labor Relations Board order that it bargain with the General Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 653. The petitioner refused to bargain with the union, in order to secure review of the Board's denial of a hearing on the petitioner's claim that the representation election should have been set aside because of improper electioneering by the union. The Board has cross-appealed, seeking enforcement of its order. For the reasons set forth below, we deny review and grant the Board's request for enforcement.
The petitioner is engaged in the manufacture, sale, and distribution of insulated wire and related products at its facility located in Plymouth, Massachusetts. In addition, the company operates a warehouse in Conroe, Texas. We have jurisdiction over the petition for review under section 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. Sec. 160(e), (f) (1976). 1
On February 26, 1981, the Board conducted a representation election at Boston Insulated's Plymouth facility. Of the 135 production and maintenance employees who participated in the election, sixty-nine voted for the union and sixty-six voted against it. On March 5, the company filed timely objections to the election. 2
In support of its objections, Boston Insulated submitted seven affidavits from company employees describing the events surrounding the election. The balloting took place in a room that was located on the ground floor of the company's Building # 2. Directly in front of the polling place was a stairway leading to the main entrance of the building; the stairway was at one end of a corridor. Ten feet down this corridor was a set of wooden doors that had two glass panels at eye level; the doors opened onto the company parking lot. Through these doors, a person standing in the parking lot could view the corridor, the entrance to the polling place, and parts of the polling place itself.
Boston Insulated submitted affidavits that stated that, during the balloting, union agents passed out a campaign leaflet and spoke to employees as the employees entered the building through either the main entrance or the glass-paneled doors on their way to vote or to work. As the line of employees waiting to vote backed up to the doors, which were closed, the union agents observed the voters through the doors and continued to pass out literature and talk to entering employees.
The acting regional director conducted an administrative investigation. On April 10, 1981, he issued a report recommending that the Board overrule the company's objections. The company filed exceptions to this report. On January 20, 1982, the Board adopted the acting regional director's findings and recommendations and certified the union as the employees' exclusive bargaining representative.
In a motion for reconsideration, filed on February 18, 1982, the company for the first time requested a hearing on its objections. Accompanying this motion, the company submitted additional affidavits. In its denial of the motion for reconsideration, the Board refused to consider the additional affidavits; it noted that the company had not alleged any unusual circumstances which would have justified the company's failure to submit these affidavits during the original investigation. The Board also noted that the company had not previously requested a hearing.
The company was subsequently charged with an unfair labor practice because of its refusal to bargain with the union. See 29 U.S.C. Secs. 158(a)(5) and (1) (1976). The company admitted its refusal to bargain but denied the validity of the Board's certification. The Board granted the general counsel's motion for summary judgment, finding that the company had committed an unfair labor practice, requiring the company to cease and desist from interfering with the employees' organizational rights, and directing the company to bargain with the union.
Boston Insulated contends that it should not be required to bargain with the union because the union election should have been set aside, or at least, that the company was entitled to a full evidentiary hearing on its objections to the election. As a preliminary matter, the Board notes that Boston Insulated did not request a hearing until it filed its motion for reconsideration of the Board's decision. Boston Insulated responds that such a request was not necessary; it maintains that it was entitled to a hearing once it had presented "prima facie evidence raising substantial material issues that would warrant setting the election aside." NLRB v. Claxton Manufacturing Co., 613 F.2d 1364, 1365 (5th Cir.), modified, 618 F.2d 396 (5th Cir.1980).
The National Labor Relations Act does not specifically require the Board to conduct post-election hearings on objections to the conduct of elections. NLRB v. South Mississippi Electric Power Association, 616 F.2d 837, 839 (5th Cir.1980); NLRB v. O.K. Van Storage, Inc., 297 F.2d 74, 76 (5th Cir.1961). The Board, however, has promulgated regulations authorizing a hearing on a party's objections to a representation election at the regional director's discretion:
The action of the regional director in issuing a report on objections ... may be on the basis of an administrative investigation or, if it appears to the regional director that substantial and material factual issues exist which, in the exercise of his reasonable discretion, he determines may more appropriately be resolved after a hearing, he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer.
29 C.F.R. Sec. 102.69(d) (1981). 3 Neither the cases nor the regulations say whether an election challenger must specifically request a hearing in addition to presenting evidence of a prima facie case. See, e.g., Claxton, supra. Since we conclude that the Board's decision not to hold a full evidentiary hearing with respect to the company's objections was not an abuse of discretion regardless of the company's failure to request a hearing, we need not determine today whether a request for such a hearing would normally be necessary.
Secondly, we hold that the Board properly determined whether the election should have been set aside solely on the basis of the affidavits submitted during the original investigation. The regulations governing the procedure for objections to an election provide that objections shall be filed within five days after the tally of the ballots has been furnished to the parties. "The party filing objections shall, upon request, promptly furnish to the regional director the evidence available to it to support the objections." 29 C.F.R. Sec. 102.69(a) (1981) (emphasis added). 4 The submission of affidavits almost one year after the filing of the objections can hardly be considered "prompt." The record in this case does not contain any request by Boston Insulated to the acting regional director for an extension of time in which to submit additional evidence. Had the company made such a request, the regional director's decision whether to grant an extension would have been governed by an abuse of discretion standard. Burns International Security Services, Inc., 256 N.L.R.B. 959 (1981); Sambo's North Division Store No. 144, 223 N.L.R.B. 565 (1976).
The administrative regulations further provide that "in a proceeding in which no hearing is held, a party ... may append to its submission to the Board copies of documents timely submitted to the regional director and which were not included in the report and decision." 29 C.F.R. Sec. 102.69(g) (1981) (emphasis added). 5 While a party may move for a reopening of the record under "extraordinary circumstances," 29 C.F.R. Sec. 102.65(e)(1) (1981), Id.; see also Claxton, supra, 613 F.2d at 1368 n. 5. Boston Insulated has never offered any reason for its failure to submit the additional affidavits during the original investigation. There is no indication that the evidence was initially unavailable, as all of the affiants were employees of the company and indeed some had already signed earlier affidavits.
In light of the company's failure to explain why it had not timely submitted the affidavits, and the policy embodied in the National Labor Relations Act of expeditiously resolving questions of union certification, see NLRB v. O.K. Van Storage, Inc., 297 F.2d 74, 76 (5th Cir.1961), we conclude that the Board's refusal to consider the additional affidavits was well within its discretion.
Congress has entrusted the Board with wide discretion in determining whether an election has been conducted fairly, and the Board's decision is accorded special respect on review....
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