Jamesway Corp. v. N.L.R.B., s. 80-2245

• Decision Date: 31 March 1982
• Docket Number: Nos. 80-2245,81-1319,s. 80-2245
• Citation: 676 F.2d 63
• Parties: 110 L.R.R.M. (BNA) 2156, 93 Lab.Cas. P 13,444 JAMESWAY CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. DISTRICT 65, INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Jamesway Corporation, Intervenor.
• Court: U.S. Court of Appeals — Third Circuit

Page 63

676 F.2d 63

110 L.R.R.M. (BNA) 2156, 93 Lab.Cas. P 13,444

JAMESWAY CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

DISTRICT 65, INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF

AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Jamesway Corporation, Intervenor.

Nos. 80-2245, 81-1319.

United States Court of Appeals Third Circuit.

Argued Oct. 30, 1981.

Decided March 31, 1982.

Franklin H. Goldberger, Novak & Goldberger, Schenectady, N.Y., Peter G. Nash (argued), Michael J. Bartlett, Ogletree, Deakins, Nash, Smoak & Stewart, Washington, D.C., for Jamesway Corp.

William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Richard B. Bader, Judith A. Dowd, Carol De Deo (argued), Attys., N.L.R.B., Washington, D.C., for respondent.

Ira Jay Katz, Philadelphia, Pa., Jonathan H. Siegel, Washington, D.C., for District 65.

Before ADAMS, ROSENN and SLOVITER, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

These cases present two petitions for review and cross-applications for enforcement of an order of the National Labor Relations Board (Board) finding Jamesway Corporation (Jamesway or Store) to have violated section 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1) & (5) (1976), by refusing to bargain with District 65, UAW (Union). In No. 80-2245, Jamesway filed a petition under 29 U.S.C. § 160(f) (1976) for review of the Board's order that Jamesway cease and desist in its violations and recognize and bargain with the Union upon request. Jamesway challenges the validity of the representation election and the legality of the Union's certification. Because Congress has not provided for direct review of Board representation proceedings, Jamesway was compelled to expose itself to the unfair labor practice charges in order to obtain judicial review of the representation proceedings, review which this court appropriately should now provide. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed 1251 (1941); Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir. 1981); NLRB v. Sun Drug Co., 359 F.2d 408 (3d Cir. 1966). The Board has cross-applied for enforcement of its order under 29 U.S.C. § 160(e) (1976). In No. 81-1319, the Union has petitioned this court to set aside that part of the Board's order denying the special relief sought by the Union. The Board has also cross-applied for enforcement of its order in this action. Jamesway's petition for review will be granted; the Board's application for enforcement and the Union's petition to modify the Board's order will be denied.

I.

Jamesway, a New York corporation, operates a department store in Hammonton, New Jersey. On April 2, 1979, the Union filed a representation petition seeking certification as the bargaining representative of the Store's employees. ¹ The Regional Director (RD) determined that the appropriate bargaining unit included:

All full-time and regular part-time employees, including leased department employees, office clerical employees, department heads, stockroom employees, head cashier, C.I.E. employees and TWX operator at the Employer's store # 32 Hammonton, New Jersey facility, but excluding management trainees, casual and seasonal employees, security employees, leased department managers, head receiver, guards and supervisors within the meaning of the Act and First Federal Savings and Loan Association employees.

Jamesway contested the inclusion in the unit of three employees: the store's head cashier and two students employed under the auspices of New Jersey's Cooperative Industrial Education Program. ² The Board refused to review Jamesway's pre-election objections to the RD's unit determination, concluding that no substantial issues warranting review had been raised.

The election was held on June 22. The initial tally of ballots revealed 28 votes for the Union, 29 against, and 6 challenged ballots. Jamesway filed timely objections to the election and to conduct of the Union which the Store maintained improperly affected the election's outcome. Jamesway raised several grounds to have the election set aside. ³ Consideration of one of these, namely Jamesway's claim that campaign literature circulated by the Union on the eve of the election was so deceptive as to impermissibly interfere with the election, is sufficient to determine the disposition of this case.

The RD conducted an administrative investigation of the challenges to the ballots and the objections to the election-related conduct. See generally 29 C.F.R. § 102.69 (1981). On October 26, 1979, he issued a Supplemental Decision on Challenged Ballots and Objections to Election in which he overruled four of the six challenges and all of Jamesway's objections. Jamesway filed a request for review of that decision, contending that the RD erred in overruling the Store's objections, a request that the Board denied. On January 4, 1980, the RD issued a Revised Tally of Ballots which showed 32 votes for the Union and 29 against the Union, with 2 ballots challenged by the Union remaining uncounted, the challenges unresolved, because the votes were not determinative of the outcome of the election. The RD certified the Union as the exclusive bargaining agent of the Store's employees on January 10.

Jamesway refused to bargain in order to contest the certification, and on May 12, 1980, the RD issued a complaint charging Jamesway with engaging in unfair labor practices within the meaning of section 8(a)(1) and (5) of the Act. The Board ultimately issued its Decision and Order on August 27, 1981. It refused to consider Jamesway's challenges to the certification and ordered Jamesway to bargain with the Union.

II.

As an initial matter we must determine the appropriate standard of judicial review of the Board's opinion and order. Some confusion appears to have developed regarding selection of the appropriate standard for reviewing the Board's determinations regarding the effect of alleged misconduct on the fairness of an election. Generally, when the Board petitions for enforcement of a bargaining order or a party challenges a Board determination that he engaged in an unfair labor practice, a reviewing court is bound to accept the Board's factual findings "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e) & (f), see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); E. L. Wiegand Division, Emerson Electric Co. v. NLRB, 650 F.2d 463, 468 (3d Cir. 1981); Hedstrom Co. v. NLRB, 629 F.2d 305, 313-14 (3d Cir. 1980) (en banc), cert. denied, 450 U.S. 996, 101 S.Ct. 1699, 68 L.Ed.2d 196 (1981). The degree of review authorized under the substantial evidence test has been likened by the Supreme Court to the judgment that a trial judge exercises on whether or not there is sufficient evidence to submit the case to the jury:

(Substantial evidence) "must do more than create a suspicion of the existence of the fact to be established.... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusions sought to be drawn from it is one of fact for the jury."

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939). Thus, " '(s)ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Universal Camera Corp., supra, 340 U.S. at 477, 71 S.Ct. at 459 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). Although under the substantial evidence test a court is not free to substitute its view for that of the Board merely because it would have reached a different conclusion had it considered the question initially, Universal Camera Corp., supra, 340 U.S. at 488, 71 S.Ct. at 464, "a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Id.

The Board argues, however, that a more deferential standard of review governs when a court is called upon to review a decision of the Board regarding the conduct of an election. In such circumstance, the Board maintains, the proper standard addresses "whether the Board acted arbitrarily in the exercise of its discretion." NLRB v. Pinkerton's, Inc., 621 F.2d 1322, 1324 (6th Cir. 1980); see NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946). Accordingly, in the instant case the Board urges that the proper standard for reviewing its actions in conducting and certifying the election is whether the Board's actions were within its wide range of discretion. ⁴

The Board in its attempt to limit the power of review exercised by this court over the Board's determinations regarding the conduct of elections confuses the standard of review a court should use to examine the propriety of election procedures and policies established by the Board with the standard appropriate for review of the Board's application of those procedures and policies to specific elections. That confusion is understandable, since our decisions have not carefully articulated the distinction. Nonetheless, the substantial evidence standard remains the proper one under which Board determinations regarding the impact of alleged misconduct on the fairness of an election must be judged.

The source of the abuse of discretion standard which the Board would have us apply is NLRB v. A. J. Tower Co., 329 U.S. 324, 67 S.Ct. 324...