N.L.R.B. v. Hudson Oxygen Therapy Sales Co., 84-7218

• Decision Date: 28 June 1985
• Docket Number: No. 84-7218,84-7218
• Citation: 764 F.2d 729
• Parties: 119 L.R.R.M. (BNA) 3181, 103 Lab.Cas. P 11,539 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUDSON OXYGEN THERAPY SALES COMPANY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 729

764 F.2d 729

119 L.R.R.M. (BNA) 3181, 103 Lab.Cas. P 11,539

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUDSON OXYGEN THERAPY SALES COMPANY, Respondent.

No. 84-7218.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1985.

Decided June 28, 1985.

Lynn Deitch, Judith Dowd, Washington, D.C., for petitioner.

Nancy L. Ober, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for respondent.

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

Before FLETCHER, BOOCHEVER, and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

The National Labor Relations Board ("Board") petitions for enforcement of its bargaining order issued on February 29, 1984 against Hudson Oxygen Therapy Sales Company ("Hudson Oxygen"). 268 N.L.R.B. No. 210. The bargaining order was predicated on an election conducted on October 3, 1980, in which out of a total of 593 eligible voters, 361 ballots were cast for the Sales Drivers and Dairy Employees, Local 166, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union"); 173 were cast against the Union; and 5 ballots were challenged. Hudson Oxygen filed timely objections to the election, and after an administrative investigation, the Regional Director recommended that the objections be overruled and that the Union be certified as the bargaining agent. Hudson Oxygen filed objections to the Regional Director's report. On March 18, 1981, the Board adopted the Regional Director's recommendations and certified the Union. Hudson Oxygen then refused to bargain with the Union, and the Union responded with an unfair labor practice charge, asserting that the failure to bargain violated sections 8(a)(5) and (1) of the National Labor Relations Act. 29 U.S.C. Sec. 158(a)(5) & (1) (1982). The Board found that Hudson Oxygen had violated the Act and issued an order requiring Hudson Oxygen to bargain with the Union. Hudson Oxygen Therapy Sales Co., 257 N.L.R.B. 1193 (1981). We denied enforcement and remanded to the Board for a hearing on Hudson Oxygen's objections. NLRB v. Hudson Oxygen Therapy Sales Co., 698 F.2d 1231 (9th Cir.1983) (table) (unpublished memorandum disposition). Pursuant to our remand, an Administrative Law Judge conducted a hearing on Hudson Oxygen's objections to the election.

On the basis of the hearing, the Administrative Law Judge recommended that the Board reaffirm its bargaining order. The Administrative Law Judge concluded that the company's objection based on supervisory taint was not properly before him and conducted an evidentiary hearing on the remaining three objections. Hudson Oxygen submitted no evidence with respect to two of the remaining objections. As to the final objection--that the Union engaged in electioneering near the polling place--the Administrative Law Judge found that if electioneering occurred, "it ended before the polls opened. Accordingly, as a matter of law it cannot constitute objectionable conduct." The Board adopted the Administrative Law Judge's recommendations, conclusions, and findings. 268 N.L.R.B. No. 210.

In this enforcement proceeding, Hudson Oxygen continues to advance only two of its four objections to the election. ¹ The first objection urged before us is that the Union engaged in electioneering in the polling area. The second objection is a renewal of the claim that supervisory taint invalidated the election. We consider each objection in turn.

I

Hudson Oxygen's first objection to the election relates to an incident that occurred on the day of the election, October 3, 1980. Before the commencement of the afternoon voting period, employees lined up outside the polling place, a lunchroom, waiting to vote. The crowd chanted "Vote Yes, Vote Yes," for a period of two or three minutes, but the chanting ceased several minutes before the opening of the polls. The evidence presented to the Administrative Law Judge was in conflict, but his decision assumed that a Union official participated in the chanting.

Hudson Oxygen argues that the chanting violated a Board rule against electioneering at the polling place. The Supreme Court has clearly enunciated the standard for reviewing the Board's application of its rules: "The judicial role is narrow: The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board's application of the rule, if supported by substantial evidence on the record as a whole, must be enforced." Beth Israel Hospital v. NLRB, 437 U.S 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978) (citations omitted)

Milchem, Inc., 170 N.L.R.B. 362 (1968), the case relied upon by Hudson Oxygen, is but one of a series of Board decisions establishing rules governing representation elections. Milchem announced a per se rule prohibiting electioneering in the form of sustained conversations between union or company representatives and employees standing in line and waiting to vote. 170 N.L.R.B. at 362-63. The chanting which is the focus of Hudson Oxygen's objection does not fall within the holding of Milchem.

Milchem was adopted in the context of the more general rule that coercive conduct, including the use of threats, intimidation, and violence, is evaluated under the Board's "laboratory conditions" standard. General Shoe Corporation, 77 N.L.R.B. 124, 127 (1948). ² In contrast to the prohibition of coercive conduct, the Board permits legitimate "electioneering" subject to specific regulations. Early decisions of the Board enunciated a rule prohibiting even noncoercive electioneering at the polling place while voting is in progress. Detroit Creamery Co., 60 N.L.R.B. 178, 180 (1945); Kilgore Manufacturing Co., 45 N.L.R.B. 468, 470 (1942). The Board has also adopted a rule prohibiting one specific form of electioneering--"captive audience" speeches on company time--within the twenty-four hour period immediately preceding an election. Peerless Plywood Co. 107 N.L.R.B. 427, 429 (1953). ³

The Board has consistently held, however, that the general rule against electioneering at the polling place is limited to electioneering that occurs while the polls are open. Electioneering that occurs before the polls are open is simply not in violation of the rule. See, e.g., Nestle Co., 248 N.L.R.B. 732, 742 (1980); Cumberland Nursing & Convalescent Center, 248 N.L.R.B. 322, 323 (1980); Pastoor Brothers Co., 223 N.L.R.B. 451 (1976); Doughboy Plastic Production, Inc., 122 N.L.R.B. 338, 341 (1958); General Steel Tank Co., 111 N.L.R.B. 222, 224 (1955); Mutual Distributing Co., 83 N.L.R.B. 463, 464 (1949). In particular, the Milchem rule has been limited to conversations that take place while the polls are open. Lincoln Land Moving & Storage, Inc., 197 N.L.R.B. 1238, 1239 (1972). Since Hudson Oxygen does not contest the fact that the electioneering occurred before the polls opened, there can be no doubt that "substantial evidence" supported the Board's application of its election rules.

Given that there was no violation of the Board's election rules, Hudson Oxygen's objection to the election is somewhat difficult to fathom. We have long held that the Board has wide discretion in establishing election procedures and in interpreting its rules governing elections. See Department & Specialty Store Employees Union Local 1265 v. Brown, 284 F.2d 619, 627 (9th Cir.), cert. denied, 366 U.S. 934, 81 S.Ct. 1659, 6 L.Ed.2d 846 (1961). The only argument open to Hudson Oxygen would appear to be a challenge to the rule itself, based upon the contention that the rule is either irrational or inconsistent with the purposes of the Labor Act. See NLRB v. Nevis Industries, 647 F.2d 905, 909 (9th Cir.1981).

Hudson Oxygen contends electioneering before the polls open can have the same influence on voters as electioneering while voting is taking place. Therefore, Hudson Oxygen argues, a rule prohibiting electioneering only after the polls open is irrational. We reject this argument. The Board's responsibility to make rules governing representation elections requires the Board to draw some "bright lines" between permitted and prohibited conduct. Such per se rules necessarily approximate the result that would be reached if electioneering were regulated only on a case-by-case basis. The failure of per se rules to achieve their goals with mathematical precision does not, however, render them "irrational." To the contrary, by announcing per se rules which establish categories of permitted and prohibited conduct, the Board provides predictability and stability for the participants in a representation election. Announcing such general rules is at the very least a rational method for the Board to carry out its mandate to ensure fair elections. The authority of the Board to establish election rules in adjudicatory proceedings is now unquestioned. NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 1771, 40 L.Ed.2d 134 (1974).

The particular rule adopted by the Board--distinguishing between prohibited electioneering at the polling place while the polls are open and permitted electioneering before the polls open--is neither irrational nor inconsistent with the purposes of the Labor Act. One indication of the rule's consonance with the purposes of the Act is the fact that many jurisdictions make a similar distinction in their regulation of political elections. The analogy to the political arena is especially persuasive because Congress intended representation elections to follow the model of elections for political office. See Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 504, 88 S.Ct. 1743, 1750, 20 L.Ed.2d 763 (1968). Moreover, the purpose of the rule against electioneering at the polling place while voting is in progress is to permit voting to take place in an atmosphere permitting sober reflection and calm deliberation. See Robert's Tours, Inc. v. NLRB, 578...