N.L.R.B. v. L.D. McFarland Co.

• Decision Date: 27 March 1978
• Docket Number: No. 75-3364,75-3364
• Citation: 98 L.R.R.M. 2037,572 F.2d 256
• Parties: 98 L.R.R.M. (BNA) 2037, 83 Lab.Cas. P 10,522 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. D. McFARLAND COMPANY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 256

572 F.2d 256

98 L.R.R.M. (BNA) 2037, 83 Lab.Cas. P 10,522

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. D. McFARLAND COMPANY, Respondent.

No. 75-3364.

United States Court of Appeals Ninth Circuit.

March 27, 1978.

Rehearing Denied May 4, 1978.

William Stewart (argued), Portland, Or., for petitioner.

George J. Tichy (argued), Spokane, Wash., for respondent.

On Application for Enforcement of an Order of The National Labor Relations Board.

Before ELY and CHOY, Circuit Judges, and HALL, ^* District Judge.

ELY, Circuit Judge:

The National Labor Relations Board (Board), pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (the Act), petitions for enforcement of its Order, issued on July 28, 1975. The Board's Decision and Order is reported at 219 NLRB 575 (1975) and holds that the respondent L. D. McFarland Company (Company) violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. ¹ We are convinced that the Board's Petition should be granted and that its Order must be enforced.

FACTS

Pursuant to an agreement between the Company and Union, a consent election was held at the Company's Eugene, Oregon, facility on April 25, 1973. The employees voted 16 to 13 in favor of the Union, with two challenged ballots. ² The Company thereafter filed two timely objections to the election, alleging that the election was invalid because (1) the Union had improperly induced employees to vote for the Union by offering to waive dues and initiation fees, and (2) the Board agent conducting the election had closed the polls early, thereby denying a potentially eligible employee the opportunity to vote. After an administrative investigation, the Regional Director rejected the Company's claims and recommended that the Union be certified, finding no impropriety in the Union's waiver of fees and dues and finding also that the putative voter was ineligible because he had been previously laid off permanently without any prospect of being recalled. The investigation revealed that on about April 12, 1973, the potential "voter" had, in fact, become employed elsewhere on a full-time basis.

The Company filed two timely exceptions to the Regional Director's findings and recommendation, reasserting its original objections and claiming that factual questions had been raised which required an evidentiary hearing. Additionally, the Company also added for the first time an objection founded upon alleged conversations taking place in or near the polling area. The Board certified the Union without an evidentiary hearing, rejecting the Company's original two exceptions as raising no substantial or material issues of fact or law warranting reversal of the Regional Director's findings and recommendation and refusing to entertain the added objection on the grounds that it was conclusionary and untimely.

Subsequently, the Company refused to bargain after being requested to do so by the Union. After the filing of an unfair labor practice charge by the Union, the General Counsel issued a complaint based on the Company's failure to bargain. The Company conceded its refusal to bargain. It argued, however, that such action was nonetheless lawful, again reasserting its objections that the election was invalid and that the consequent certification of representative was void. On cross motions for summary judgment, the Board rejected the Company's objections and held that the respondent Company had violated the Act. The Board again rejected the Company's request for an evidentiary hearing, finding that all the issues were litigated, or could have been litigated, in the previous representation proceeding and that the Company had not shown any special circumstances warranting a reexamination of the decision reached in the representation proceeding. The Board now seeks enforcement of its Order requiring that the Company bargain in good faith.

I

The Company here resists the Board's Petition for Enforcement on the ground that the election was invalid and the consequent certification of representative erroneous, reasserting all of its previous objections.

A

First, the Company contends that the Union improperly offered to waive initiation fees and dues in exchange for the votes of the employees. The foundation for this assertion derives from a letter sent to the employees by the Union four days before the election. The letter stated, inter alia :

THERE WILL BE NO INITIATION FEE FOR ANY MEMBER PRESENTLY WORKING IN THE PLANT.

THERE WILL BE NO MONTHLY DUES UNTIL A CONTRACT IS NEGOTIATED.

The respondent Company argues that this Union action violated the standards pronounced in N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). There, the Court held that union promises to waive initiation fees are improper and require an election to be set aside if the promise is conditioned upon a showing of pre-election support for the union. Savair, however, made equally clear that unconditional offers to waive initiation fees for all employees, including those who become members after the election, are proper. Id. at 274, 94 S.Ct. 495, 38 L.Ed.2d 495, n.4; N.L.R.B. v. Aaron Bros. Corp., 563 F.2d 409, 412 (9th Cir. 1977); Warner Press Inc. v. N.L.R.B., 525 F.2d 190, 196-97 (7th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976).

The Board here found that the term "member" was a shorthand form for "incoming member" and, consequently, that there was no requirement to join the Union before the election or otherwise support the Union prior to the election as a condition for the waiver of initiation fees. Accordingly, the Board found that "the waiver of dues and initiation fees here was unconnected with support for the Union before the election, unrelated to a vote in the election, and was without distinction between joining the Union before or after the election." 219 NLRB 575, 576 (1975).

We note at the outset that "Congress has entrusted the Board with a wide discretion in conducting and supervising elections." N.L.R.B. v. W. S. Hatch Co., 474 F.2d 558, 561 (9th Cir. 1973); N.L.R.B. v. Southern Health Corp., 514 F.2d 1121, 1123 (7th Cir. 1975). Accordingly, we are not empowered to overturn findings and conclusions of the Board unless, viewing the record as a whole, we can say with conviction that they are not supported by substantial evidence. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-91, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Here, we are satisfied that the Board did not abuse the discretion entrusted to it. The full record contains ample support for the Board's conclusion that the nexus between pre-election support and waiver of initiation fees forbidden by Savair was absent. Similarly, the waiver of dues until an anticipated contract is negotiated is likewise permissible under Savair. N.L.R.B. v. Con-Pac, Inc., 509 F.2d 270, 272-73 (5th Cir. 1975); N.L.R.B. v. Wabash Transformer Corp., 509 F.2d 647, 649-50 (8th Cir. 1975).

We are also unpersuaded by the Company's argument that the election should be set aside because the term "member" was impermissibly ambiguous. The Board rejected this contention and we do also. The Company's reliance upon Inland Shoe Mfg. Co., 211 NLRB 724 (1974), is misplaced. There, the Board set aside an election in which the union distributed literature stating that there would be "no initiation fees for charter members of a new local." Id. Further, this representation was accompanied by efforts of the union to obtain authorization cards prior to the election. As the Board stated, the "(e) mployees could well have been induced to become early card signers on the reasonable belief that only thereby could they become 'charter members' eligible for a waiver of initiation fees." Id. at 725. Moreover, in other decisions in which the Board set aside an election because of ambiguous offers to waive initiation fees, the term "charter members" or "charter membership" was used in conjunction with active and concurrent efforts to obtain union authorization cards or pledges. See D.A.B. Indus., Inc., 215 NLRB 527 (1974); Calif. State Automobile Assn., 214 NLRB 223 (1974); Coleman Co., 212 NLRB 927 (1974). Neither of these factors are present in this case. Accordingly, the Union offer to waive initiation fees was neither improper nor impermissibly ambiguous.

B

The Company next argues that the early closing of the polls invalidated the election by destroying the required laboratory conditions. The polls were, by agreement to remain open from 4 to 5 p. m. on election day. The Board agent conducting the election closed the polls, however, at about 4:20 p. m. after all the voters on the eligibility list had cast ballots. Thereafter, about 4:45 p. m., a potential voter, later determined by the Regional Director's investigation to have been ineligible, arrived at the polling place to vote, but was unable to do so inasmuch as the polls were already closed. The Regional Director rejected this objection because the potential voter was, in fact, ineligible. The Board, in certifying the Union as the bargaining representative, rejected the objection as well, finding no reason to reconsider the Regional Director's findings. The Board refused to alter its position in the unfair labor practice proceeding.

The Company's argument on the point has no merit. The Regional Director plainly found that the putative voter had been a temporary employee of the Company, had been laid off permanently with no expectation of recall, and had, in fact, become employed elsewhere by the time of the election. This former employee clearly was not eligible to vote. If an election is to be set aside because of a deviation from the scheduled voting times, it must be affirmatively shown that eligible voters, sufficient in number to affect the result of the election, were disenfranchised as a result of the change. N.L.R.B. v. Smith, 438 F.2d 17, 20 (5th...