Heritage Broadcasting Co. of Michigan v. N.L.R.B.
| Decision Date | 18 October 2002 |
| Docket Number | No. 01-1003.,No. 01-1209.,01-1003.,01-1209. |
| Citation | 308 F.3d 656 |
| Parties | HERITAGE BROADCASTING COMPANY OF MICHIGAN, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Dennis M. Devaney (argued), Wayne State University Law School, Gayle L. Landrum, Robert E. Day, Edward V. Keelean (briefed), Williams, Mullen, Clark & Dobbins, Detroit, MI, for Petitioner.
Christopher Young (argued and briefed), Aileen A. Armstrong, Margaret Ann Gaines (briefed), National Labor Relations Board, Washington, DC, for Respondent.
Before KENNEDY and MOORE, Circuit Judges; DOWD, District Judge.*
Petitioner/Cross-Respondent Heritage Broadcasting Company of Michigan (Heritage Broadcasting) seeks review of an order of the National Labor Relations Board (NLRB or Board) directing it to bargain in good faith with the National Association of Broadcast Employees and Technicians Communication Workers of America, AFL CIO (NABET). The NLRB found that Heritage Broadcasting violated sections 8(a)(1) and (a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (a)(5), when Heritage Broadcasting refused to bargain with NABET after the union had been certified as the representative of bargaining unit employees. Heritage Broadcasting challenges NABET's certification on the grounds that the NLRB should have rejected NABET's challenge to four news producer ballots cast in the decertification election.1 Respondent/Cross Petitioner NLRB seeks enforcement of its order. For the reasons set forth below, we grant the NLRB's cross-application for enforcement of its order.
Heritage Broadcasting is a television broadcasting company that operates several television stations in Michigan. NABET has represented a bargaining unit comprised of Heritage Broadcasting employees who are "full-time and regular part-time news persons, engineers, technicians, director switchers, camera persons, artists, production employees, film employees, film editors, film photographers, and all persons who regularly appear on camera and on microphone" since 1989. The most recent collective bargaining agreement between Heritage Broadcasting and NABET covered the period from October 5, 1998 through December 31, 1999.
On January 3, 2000, a Heritage Broadcasting employee filed a petition to decertify NABET as the representative of bargaining unit employees. On February 10, 2000, the NLRB conducted a secret ballot election. The ballot tally indicated twenty-six votes in favor of continued NABET representation and twenty-three votes against continued representation. The ballots cast by Allison Mendoza, Ryan Delaney, Mike Nitzky, and Emily Henrikson were challenged by NABET on the grounds that these employees, who are employed as news producers, were not part of the bargaining unit and, therefore, ineligible to vote in the decertification election. Because the four challenged ballots were sufficient to determine the outcome of the election, the NLRB Regional Director conducted an investigation and, after determinating that the ballot challenges raised substantial and material factual issues, ordered a hearing.
NLRB Hearing Officer Good held a hearing on March 6, 2000 to take evidence concerning the four challenged ballots. After the hearing, Hearing Officer Good issued a report that recommended that the challenges be sustained and that the ballots remain uncounted. In brief, Hearing Officer Good concluded that the bargaining unit definition was ambiguous as to whether the news producers were included in the bargaining unit and then determined that the news producers were not included in the bargaining unit for purposes of a decertification election based on evidence of the parties' past practices. Heritage Broadcasting filed exceptions to the Hearing Officer's report. On June 21, 2000, the Board denied Heritage Broadcasting's exceptions and certified NABET as the unit employees' exclusive collective bargaining representative.
Heritage Broadcasting has since refused to bargain with NABET. On July 18, 2000, in response to an unfair labor practices claim filed by NABET, the NLRB General Counsel issued a complaint alleging that Heritage Broadcasting's refusal to bargain violated sections 8(a)(1) and (a)(5) of the NLRA. Heritage Broadcasting's answer alleged in turn that the NLRB had erred in certifying the union. On August 18, 2000, the General Counsel filed a motion for summary judgment, which the NLRB granted on September 20, 2000. The Board's order requires Heritage Broadcasting to bargain with NABET upon request.
As an initial matter, the parties contest the standard of review that applies in this case. Petitioner argues that this Court should review the collective bargaining agreement (CBA) de novo because the issue of whether the bargaining unit definition is ambiguous presents a question of law. The Respondent argues that unless the NLRB's interpretation of the CBA was arbitrary, unreasonable, or an abuse of discretion, this Court should defer to that interpretation because it was reached in the context of determining voter eligibility in a representation proceeding. We agree with the Respondent. Because the NLRA vests authority in the NLRB to determine the appropriate bargaining unit for decertification elections, NLRB v. Hollaender Mfg. Co., 942 F.2d 321, 326 (6th Cir.1991) (citing 29 U.S.C. § 159(b)), this Court will defer to the Board's determination unless it is arbitrary, unreasonable, or an abuse of discretion, Armco, Inc. v. NLRB, 832 F.2d 357, 362 (6th Cir.1987); Saints Mary & Elizabeth Hosp. v. NLRB, 808 F.2d 1211, 1212 (6th Cir.1987); NLRB v. Hardy-Herpolsheimer Div. of Allied Stores of Mich., Inc., 453 F.2d 877, 878 (6th Cir.1972). Further, we treat the NLRB's findings of fact as conclusive if supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e), (f) (1998). In reviewing the NLRB's fact-finding, we examine whether the Board considered "such relevant evidence as a reasonable mind might accept as adequate to support the conclusion reached," NLRB v. Seawin, Inc., 248 F.3d 551, 554-55 (6th Cir.2001) (quoting R.P. Carbone Constr. Co. v. Occupational Safety & Health Review Comm'n, 166 F.3d 815, 818 (6th Cir.1998)), taking into account contradictory evidence and evidence that suggests conflicting inferences, TNS, Inc. v. NLRB, 296 F.3d 384, 394-95 (6th Cir.2002).
Contrary to Petitioner's contention, the NLRB's conclusion that the bargaining unit definition is ambiguous is reasonable. As discussed in Hearing Officer Good's report, the bargaining unit definition and its relationship to other CBA provisions supports arguments "both in favor and opposed to the inclusion of news producers in the bargaining unit." First, the definition does not expressly mention "news producers"; rather, the definition includes "production employees" while it excludes, among others, "producer-directors" and "supervisors as defined by the Act." Consequently, news producers could be included in the bargaining unit if they are classified as production employees, or news producers could be excluded from the unit if they are classified either as producer-directors or as supervisors. Second, the news producer job description included in the CBA does not define the specific job duties that dictate the inclusion of news producers in the bargaining unit; rather the job description focuses on what duties result in a news producer "evolv[ing] out of the unit." Specifically, the job description provides that if a news producer ceases to perform anything more than de minimis technical editing duties and the news producer performs some, but not all, of the duties delineated in the job description, or the news producer functions in a supervisory capacity, then the news producer is excluded from the bargaining unit. Again, a news producer may be included in the unit if the producer performs more than de minimis technical editing duties or a news producer may be excluded from the unit if the producer performs certain other duties and performs only de minimis technical editing duties. And third, Schedule A, which lists bargaining unit employee wage scales by job description title, does not...
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