N.L.R.B. v. Arthur Sarnow Candy Co., Inc.

• Decision Date: 10 November 1994
• Docket Number: D,No. 1922,1922
• Parties: 147 L.R.R.M. (BNA) 2853, 63 USLW 2368, 129 Lab.Cas. P 11,224 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARTHUR SARNOW CANDY CO., INC. and Lily Popcorn, Inc., Respondents. ocket 94-4030.
• Court: U.S. Court of Appeals — Second Circuit

Page 552

40 F.3d 552

147 L.R.R.M. (BNA) 2853, 63 USLW 2368,

129 Lab.Cas. P 11,224

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARTHUR SARNOW CANDY CO., INC. and Lily Popcorn, Inc., Respondents.

No. 1922, Docket 94-4030.

United States Court of Appeals Second Circuit.

Argued June 28, 1994.

Decided Nov. 10, 1994.

Margaret Luke, N.L.R.B., Washington, DC (Frederick L. Feinstein, Gen. Counsel, Linda Sher, Acting Associate Gen. Counsel Jeffrey Pollack, New York City (Horowitz & Pollack, P.C., of counsel), for respondents.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, Peter Winkler, Supervisory Atty., N.L.R.B., of counsel), for petitioner.

Before: KEARSE and ALTIMARI, Circuit Judges, and SEYBERT, District Judge. ^*

SEYBERT, District Judge:

OVERVIEW

On August 21, 1992, Local 719, International Brotherhood of Teamsters, AFL-CIO ("the Union") was elected as the representative of certain employees of Arthur Sarnow Candy Co., Inc. and Lily Popcorn, Inc. (together, "the Company"), ¹ despite attempts by the Company to block the election. On September 25, 1992, the National Labor Relations Board ("NLRB" or "Board") certified the Union as the employees' representative over the Company's objections. The Company then refused to bargain with the Union. On September 30, 1993, the Board found that the refusal to bargain constituted an unfair labor practice and ordered the Company, inter alia, to bargain with the Union.

The Board petitions the Court under Sec. 10(e) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 160(e) (1988), for enforcement of its order dated September 30, 1993. The Company argues that the order should not be enforced because the Union's election was barred by an existing collective bargaining agreement and the Board had failed to supply appropriate foreign language interpreters during the election.

For the reasons below, we grant enforcement of the Board's order.

BACKGROUND

On March 26, 1992, the Union filed a representation petition with the Board, seeking an election by the Company's full-time and regular part-time warehouse and production employees and drivers at its location in West Hempstead, New York ("the Employees") to determine whether the Union should be certified as the Employees' collective bargaining representative. The Company and the United Crafts and Industrial Workers Union, Local 91 ("Local 91"), sought to block the election, contending that it was barred by an existing collective bargaining agreement between Local 91 and the Company (the "Local 91 Agreement"). In support of their claim, the Company and Local 91 submitted various versions of the Local 91 Agreement to the Board's regional director.

After reviewing testimony from and documents submitted in a hearing before an NLRB hearing officer held on April 14, 1992, the NLRB's regional director concluded on July 2, 1992, inter alia, that the versions of the Local 91 Agreement he reviewed failed to set forth the terms of a collective bargaining agreement with sufficient clarity to bar an election. The regional director also found that the election could not be barred because the Local 91 Agreement contained illegal "union security" ² and "members-only" ³ clauses. The regional director then directed that the election take place. On August 20, 1992, the NLRB declined to review the regional director's decision.

In preparing for the election, the parties agreed that election notices and ballots would The Union won a majority of the votes in a secret-ballot election held on August 21, 1992. A Spanish interpreter, a Portuguese interpreter and a Board official were present at the election. The tally of ballots showed 10 votes cast for the Union, 7 votes cast for Local 91 and 1 vote cast against representation. One additional ballot was challenged, and one ballot was found void because the voter had checked off all three boxes on the ballot and written "yes" at the top thereof. As a majority of votes cast was necessary for the election of the Union, 29 U.S.C. Sec. 159(c)(3) (1988), the voided ballot would have been determinative of the election had the ballot been cast for Local 91 or against representation.

be printed in English, Spanish, Portuguese and Haitian-Creole. The Company and Local 91 requested that Spanish, Portuguese and Haitian-Creole interpreters be made available during the election. The Company supplied a list of the eligible voters on its payroll from which the regional office determined, by examination of last names, that four or five voters appeared to be of French origin and nine of Hispanic origin. On July 28, 1992, the regional office indicated that it would provide Spanish and Portuguese interpreters but not one that spoke Haitian-Creole. On August 6, the Company protested in writing the decision not to provide an Haitian-Creole interpreter. On August 13, the regional office informed the Company that it would only be able to furnish a Spanish interpreter. In a letter sent by facsimile to the regional office on the same day, the Company protested this decision not to supply the Portuguese interpreter and continued to request that an Haitian-Creole interpreter be made available. The Company's letter specifically noted that some members of the voter population were not bilingual but said nothing about any Employees being unable to read or write in their native language.

The Company objected to the election, arguing that the NLRB failed to supply an interpreter in the Haitian-Creole language and to notify the Company on a timely basis that a Portuguese interpreter would be present. The Company claimed that its employees had the impression that no Portuguese interpreter would be present. On September 25, 1992, the NLRB's regional director overruled these objections, noting that the Board did supply a Portuguese interpreter and that the Company had failed to provide any evidence either before or after the election, other than its August 6 and August 13, 1992 letters to the regional office, that an Haitian-Creole interpreter was necessary. The regional director then certified the Union as the Employees' exclusive collective bargaining representative.

On July 8, 1993, the NLRB denied the Company's request for further review of the regional director's certification. The NLRB adopted the regional director's rationale for not invalidating the election. It also found that no evidence had been presented indicating "that the electorate was confused by the voting procedures or unable to make an informed choice in the election." Arthur Sarnow Candy Co., 311 NLRB 1137, 1137 n. 1, 1993 WL 257402 (1993).

The Company subsequently refused to respond to a letter from the Union dated October 1, 1992 requesting bargaining and information in the Company's possession relating to the bargaining unit that the Union represented. In response, the Union filed an unfair labor practice charge. The NLRB's General Counsel then issued a complaint alleging that the Company's refusal to bargain constituted a violation of the Act. On September 30, 1993, the NLRB granted a summary judgment motion made by the General Counsel, finding that the issues raised by the Company "were or could have been litigated in the prior representation proceeding" and that the Company had not offered "any newly discovered and previously unavailable evidence." ⁴ The NLRB found that the Company's conduct was wrongful and ordered the Company to cease and desist from refusing to bargain with the Union and from "interfering with, restraining, or coercing employees"

                in the exercise of their statutory rights.  Arthur Sarnow Candy Co., 312 NLRB No. 126 at 2.   The order also directed the Company, inter alia, to bargain with the Union upon request and to post a remedial notice.  Id.  The NLRB now applies for enforcement of its order.  The Company requests that the Court set aside the election or, alternatively, order a new election. 5
                

DISCUSSION

In its petition, the Board claims that its certification of the Union as the Employees' collective bargaining representative was reasonable and should be upheld. The Company challenges the certification, asserting that the election was barred by the existing Local 91 Agreement. The Company also argues that the election was unfair because no Haitian-Creole interpreter was provided and the Company was not notified in advance that a Portuguese interpreter would be present. For the reasons discussed below, the Court finds that the Board acted within the scope of its discretion in certifying the Union as the Employees' collective bargaining representative.

In reviewing representation elections, this Court has stated that "[t]he conduct of representation elections is the very archetype of a purely administrative function, with no quasi about it, concerning which courts should not interfere save for the most glaring discrimination or abuse." NLRB v. Olson Bodies, Inc., 420 F.2d 1187, 1189 (2d Cir.1970), cert. denied, 401 U.S. 954, 91 S.Ct. 966, 28 L.Ed.2d 237 (1971); see also Bridgeport Fittings, Inc. v. NLRB, 877 F.2d 180, 183 (2d Cir.1989) ("[I]n reviewing such a [representation] proceeding we ordinarily defer to the expertise and discretion of the Board."); Amalgamated Serv. & Allied Indus. Joint Bd. v. NLRB, 815 F.2d 225, 227 (2d Cir.1987) (quoting Olson Bodies, 420 F.2d at 1189, for the same proposition); NLRB v. Newton-New Haven Co., 506 F.2d 1035, 1037 (2d Cir.1974) (acknowledging the "broad latitude" entrusted to the Board in the conduct of representation elections); Local 1545, United Bhd. of Carpenters & Joiners of America v. Vincent ex rel. NLRB, 286 F.2d 127, 130-31 (2d Cir.1960) (indicating that the NLRB's discretion with respect to representation elections includes determining whether an election may proceed irrespective of an existing collective bargaining agreement). Accordingly, "when reviewing a request to overturn a Board decision refusing to set aside an election, we are limited to the...