F.W. Woolworth Co. v. N.L.R.B.
| Decision Date | 06 March 1989 |
| Docket Number | No. 88-3150,88-3150 |
| Citation | 892 F.2d 1041 |
| Parties | 133 L.R.R.M. (BNA) 2120 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. F.W. WOOLWORTH CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Francis X. Dee (Linda B. Celauro, I. Michael Kesser, on brief), for petitioner.
John H. Fawley (Rosemary M. Collyer, General Counsel; Robert E. Allen, Associate General Counsel; Aileen A. Armstrong, Deputy Associate General Counsel; William R. Stewart, Deputy Assistant General Counsel, National Labor Relations Board, on brief), for respondent.
Before WIDENER and WILKINSON, Circuit Judges, and ROBERT G. DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.
This case is before us on F.W. Woolworth Company's (the Company) petition for review of the National Labor Relations Board's orders of September 17, 1987, and July 11, 1988, pursuant to 29 U.S.C. §§ 151 and 160(f), and on the Board's cross-application for enforcement of its order of September 17, 1987, pursuant to 29 U.S.C. § 160(e). The National Labor Relations Board's cross-application for enforcement of its order of September 17, 1987, is granted. The September 17, 1987, and July 11, 1988, orders of the National Labor Relations Board are enforced.
On April 21, 1980, the Retail Clerks International Union, Local 552 (affiliated with the United Food and Commercial Workers International Union, AFL-CIO) filed with the Board a representation petition seeking an election among employees of the Woolworth store in Bayamon, Puerto Rico. The election was conducted on July 11, 1980, at the direction of the Board's Regional Director, and Local 552 won. Local 552 received fourteen votes, consisting of thirteen unchallenged ballots and one challenged ballot which was later opened by a Board agent and counted for Local 552. Twelve votes in unchallenged ballots were cast against representation by Local 552. On Friday, July 18, 1980, the Company filed timely objections to the election.
On Monday, July 21, a field examiner for the Board sent to the Company a telegram that provided a deadline of Monday, July 28, for submission of evidence and legal memoranda and the scheduling of witnesses' interviews by Woolworth. This telegram was sent to the post office box (not to the street address) for the Company's administrative offices in Puerto Rico, and was received at those administrative offices on Tuesday, July 22. Neither the telegram nor copies of the telegram were sent to local counsel of record for the Company nor to New York counsel of record for the Company, although the telegram came to the attention of local counsel for the Company by Tuesday, July 22.
In response to the telegram, local counsel for the Company attempted to contact the field examiner by telephone on Tuesday, July 22, Wednesday, July 23, and Thursday, July 24, but was unsuccessful. Friday, July 25, and Monday, July 28, were legal holidays in Puerto Rico, and the Company's local administrative offices were closed on those days as well as on that weekend but the NLRB offices were not closed on July 28, 1980. Later that day, local counsel for Woolworth submitted to the field examiner preliminary material including a legal memorandum, a statement of evidence, a list of witnesses, and affidavits.
On Monday, July 28, at 4:15 p.m., New York counsel for Woolworth received a telephone call from the field examiner in Puerto Rico. The field examiner advised New York counsel that "unless [counsel] had all of [Woolworth's] affidavits, documents, memoranda, etc. in the Regional Office by 5:00 p.m. that night the Objections [counsel] had filed on behalf of Woolworth would be dismissed." New York counsel objected to this proposition, and informed the field examiner and her supervisor that New York counsel would fly to Puerto Rico the next day, and that three witnesses would also be flying from the mainland United States to Puerto Rico and would be available for interviewing by Wednesday, July 30. New York counsel asserted that neither the field examiner nor her supervisor indicated to him that he should do otherwise, and that he understood that the investigation would begin on Wednesday, July 30. On Tuesday, July 29, New York counsel flew to Puerto Rico. Three witnesses also flew there from the mainland United States. On Wednesday, July 30, the field examiner did not call these witnesses for interviewing.
On Thursday, July 31, local counsel for Woolworth called the field examiner to inquire as to why the witnesses had not been called the previous day. The field examiner "explained to him she had not read the submission of July 28; that there was some question as to whether she would be assigned the matter; that she was busy on another matter which had priority; and that she would not be able to see the witnesses we had assembled...." Local counsel told the field examiner that he was permitting the witnesses to return to the mainland, and that he would "await her further call." The field examiner did not again contact counsel for Woolworth before the issuance of the Regional Director's order of August 27, 1980.
The materials (including affidavits) submitted on Thursday, July 24, by local counsel for Woolworth were considered, an investigation was made, and, by order of August 27, 1980, in Case No. 24-RC-6466, the Board's Regional Director overruled the objections to the election. The Board, in its order of March 2, 1981, denied the Company's request for review of the Regional Director's decision, and the Company's motion for reconsideration of the denial was denied by the Board on March 30, 1981. A certification was issued by the Board to Local 552 on April 15, 1981.
On May 19, 1981, the United Food and Commercial Workers International Union, AFL-CIO, Local 568 filed a charge against the Company with the Board, upon which a complaint against the Company for unfair labor practices was issued by the Regional Director in Case No. 24-CA-4514. The complaint alleged that Local 568 was the successor to Local 552 as the result of a merger, and that the Company unlawfully refused to bargain with Local 568. The Company admitted that it refused to bargain with Local 568, but claimed several affirmative defenses. The General Counsel for the Board filed a motion for summary judgment, arguing that all the affirmative defenses raised by the Company had been previously litigated in Case No. 24-RC-6466. On September 30, 1981, a three-member panel of the Board ruled that the issues of merger and successorship had not been previously litigated in Case No. 24-RC-6466, that material issues of fact remained as to these issues, and consequently denied the motion and remanded Case No. 24-CA-4514 to the Regional Director.
The Company then filed in Case No. 24-RC-6466 a motion to reopen that case, to rescind the certification of Local 552, and to consolidate Case No. 24-RC-6466 (the representation case) with Case No. 24-CA-4514 (). This motion was denied by the Regional Director on January 29, 1982, and this denial was upheld by the Board on February 11, 1982.
On February 17 and 18, 1982, a hearing before an administrative law judge was held in Case No. 24-CA-4514. The hearing was limited to the issues of successorship and merger. The administrative law judge ruled in her June 15, 1982, order that there had been a valid merger of Local 552 and Local 568; that Local 568 was the lawful successor organization to Local 552's rights pursuant to the certification; and that the Company's refusal to bargain with Local 568 was in violation of 29 U.S.C. § 185(a)(5) and (1). The Company filed exceptions to this order with the Board. The Board considered the exceptions, and on February 10, 1984, entered an order in Case No. 24-CA-4514 dismissing the complaint. The Board in that order held that the merger was invalid and that consequently the Company had not violated 29 U.S.C. § 185(a)(5) and (1).
Local 568 then filed in the United States Court of Appeals for the District of Columbia Circuit a petition for review of the February 10, 1984, decision. While the Court of Appeals was considering the case, the Supreme Court issued a decision affecting the applicable law. The Court of Appeals therefore on April 21, 1986, remanded the case to the Board for reconsideration. On September 17, 1987, a three-member panel of the Board ruled upon reconsideration to adopt the administrative law judge's decision of June 15, 1982, which found unfair labor practices on the part of the Company and ordered bargaining with Local 568.
On October 29, 1987, a bargaining demand was made upon the Company by the Federacion Americana de Empleados de Puerto Rico (American Federation of Public Employees of Puerto Rico), Local 481. Because of this demand by Local 481 instead of Local 568, on January 11, 1988, the Company moved to reopen this case and filed a motion for reconsideration of the Board's order of September 17, 1987. This motion was denied by the Board on July 11, 1988. On August 15, 1988, the Company filed the instant petition for review of the Board's orders of September 17, 1987, and July 11, 1988. On September 16, 1988, the Board filed the instant cross-application for enforcement of its order of September 17, 1987.
The Board's September 17, 1987, order found the certification of Local 568 valid. In relation to the appropriateness of the initial election held on July 11, 1980, the Company charges that the Regional Director's decision conduct was improper because: he established an arbitrary deadline for the submission of evidence; he refused to extend the deadline; he failed to...
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