N.L.R.B. v. Spring Arbor Distribution Co., 94-5260
| Decision Date | 17 July 1995 |
| Docket Number | No. 94-5260,94-5260 |
| Citation | 59 F.3d 600 |
| Parties | 149 L.R.R.M. (BNA) 2848, 130 Lab.Cas. P 11,364 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPRING ARBOR DISTRIBUTION COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joan Hoyte-Hayes, Office of Gen. Counsel, Aileen A. Armstrong, Deputy Ass'n Gen. Counsel (briefed), Paul J. Spielberg, Vincent J. Falvo, Jr. (argued), N.L.R.B., Washington, DC, for petitioner.
David B. Gunsberg, Gunsberg & Breskin, Bloomfield Hills, MI (argued and briefed), for respondent.
Before: MARTIN, RYAN, and GIBSON, * Circuit Judges.
The National Labor Relations Board petitions this court to enforce the Board's order against the Spring Arbor Distribution Company. The Board found that Spring Arbor had committed an unfair labor practice, in violation of sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq., when Spring Arbor refused to bargain with the UAW, whom the Board had certified as the collective bargaining representative of warehouse workers in Spring Arbor's Belleville, Michigan, facility. Spring Arbor's response raises one dispositive issue: Whether the NLRB erred when it refused to dismiss the Union's petition supporting the rerun election of May 28, 1992.
We conclude that it did, and therefore we decline to enforce the Board's order.
Spring Arbor is a distributor of religious books and publications. Since the company's founding, its national distribution warehouse had been at Belleville, Michigan. The company also has regional distribution centers in other states.
On April 9, 1991, the UAW petitioned the NLRB to represent the workers at the Belleville warehouse. An election was ordered: On April 30, 1991, the Union and Spring Arbor reached a stipulated agreement regarding the appropriate unit and the procedures for conducting the election. On June 7, 1991, the election was held. The results were 76 votes against the Union, 71 votes for the Union, and 21 challenged ballots. The Union filed objections to the election, complaining of Spring Arbor's pre-election misconduct.
On September 10, 1991, a hearing officer dismissed seven of the Union's eight objections, but sustained the eighth objection. He recommended setting the election aside. The sustained objection related to comments by Spring Arbor's management relating to the employer's "open door policy" and inviting worker complaints. Spring Arbor filed objections to the hearing officer's recommendation with the NLRB.
In January 1992, while the Board was reviewing Spring Arbor's objections to the hearing officer's recommendation, Spring Arbor announced in its monthly newsletter that it would be converting its Belleville warehouse into a regional distribution warehouse and buying a new facility in Tennessee to act as its new national distribution warehouse. The newsletter discussed problems with the Belleville facility relating to its inadequate size, and estimated that 40 jobs would remain at the Belleville warehouse after the main operation was transferred to Tennessee.
At about the same time, Spring Arbor circulated booklets entitled "Facing the Challenges of the Future," in which the company discussed the conversion and the resulting layoffs. The booklet begins by stating:
The Michigan warehouse will change from a central warehouse facility to a regional warehouse. We expect this change to take place during or around May, 1992. We will require 40 employees working full time in the Michigan warehouse. In late May, all part-time employees' status will change to an on-call basis.
....
We will provide everyone employed full time in good standing as of January 3, 1992 at Spring Arbor, the opportunity to perform a job somewhere in the company at a wage appropriate to the new position. Although relocated jobs may not be acceptable to some of you, an ongoing employment opportunity is available with Spring Arbor.
On April 2, 1992, the company mailed layoff notices to 122 employees. The notices were intended to comply with the requirements of the Worker Adjustment and Retraining Notification Act (WARN Act), 29 U.S.C. Secs. 2101-2109. Each worker was sent one of two different letters, which we will refer to as Letter A and Letter B. Letter A indicated that the employee would be laid off in the two-week period between June 5 and June 19, 1992. Letter B indicated that the employee would be laid off in the two-week period between June 12 and June 26, 1992. All layoffs were expected to take place in the three-week period between June 5 and June 26, 1992. By using a two-week period of time for each employee, Spring Arbor sought to satisfy the federal regulations that grew out of the WARN Act, which state that the "date" of an employee's expected layoff can be a specific date or a two-week period. 20 C.F.R. Sec. 639.7(b).
On April 8, 1992, the Board, in a 2-1 decision, upheld the hearing officer's recommendation that the June 7, 1991, election be set aside and ordered a new election. The acting regional director scheduled the new election for May 28, 1992. On April 30, 1992, Spring Arbor supplied the acting regional director with the list of employees eligible to vote at the election: the list contained only the names of the employees who were not targeted for layoff.
On May 1, 1992, Spring Arbor filed a motion with the acting regional director asking that the Union's petition supporting the rerun election be dismissed on the grounds that the unit was no longer appropriate in that the vast majority of the employees were imminently to be laid off. In the alternative, Spring Arbor asked for a hearing to demonstrate that the employees' layoffs were imminent. On May 7, the acting regional director denied the motion without a hearing. Spring Arbor sought review of this decision with the Board, but the Board denied review.
On May 28, 1992, the second election was conducted. The initial tally of the votes was 25 against the Union, 8 for the Union, and 90 challenged ballots. Four of the challenged ballots are of no interest to this petition for enforcement. The other 86 challenged ballots were challenged by the Board agent conducting the election on the ground that those ballots were cast by employees whose names did not appear on the list of eligible voters supplied by Spring Arbor. Spring Arbor objected to the challenged ballots, again claiming that the employees to be laid off should not be counted as members of the bargaining unit.
Spring Arbor asserts on appeal that all of the 122 employees were laid off as planned. The NLRB does not deny that the layoffs occurred as planned, but argues that whether the layoffs occurred or not is irrelevant under the law. We assume the employees were indeed laid off.
On July 1, 1992, the acting regional director recommended that Spring Arbor's objections be overruled and the 86 challenged ballots be counted. On September 25, well after the layoffs, the Board affirmed that recommendation and ordered the ballots to be counted. Among the 86 ballots from the laid off employees, the votes were 22 against the Union and 64 for the Union, which made a new total of 72 for the Union and 47 against. On October 14, the Board certified the Union as the collective bargaining representative for the employees.
On October 28, the Union sent a letter to Spring Arbor requesting information such as employee names and addresses. Spring Arbor did not respond. The Union complained to the Board agents and on February 11, 1993, the General Counsel issued an unfair labor practice complaint against Spring Arbor, accusing it of refusing to bargain with the certified bargaining representative. On June 2, 1993, a hearing took place before an ALJ, who found that Spring Arbor had committed an unfair labor practice and ordered it to bargain with the Union. On September 30, 1993, the Board summarily adopted the recommendation and order of the ALJ. On March 1, 1994, the Board filed a petition with this court seeking enforcement of its order.
Spring Arbor contends that the Board erred when it decided not to cancel the rerun election when it was advised of the imminent layoff of a substantial number, indeed a majority, of the Belleville warehouse employees. We have no doubt that the matter is within the Board's considerable discretion, but that discretion is not limitless. We have held that "[t]he Board's determinations regarding whether and when an election should be held are reviewed for abuse of discretion." NLRB v. Engineers Constructors, Inc., 756 F.2d 464, 467 (6th Cir.1985). The discretionary judgment involved here is broader than merely whether to order an election at a particular time; it is really concerned with the proper definition of the bargaining unit.
"Because of its experience and expertise, and in light of the need to shape a bargaining unit to the facts of a particular case, the Board is given broad authority to determine a unit appropriate for the purposes of collective bargaining." NLRB v. Catherine McAuley Health Ctr., 885 F.2d 341, 344 (6th Cir.1989) (quoting 29 U.S.C. Sec. 159(a)) (internal quotation omitted).
However, the Board's discretion in unit determinations is not without constraints, and if the Board's bargaining unit determination "oversteps the law," it must be reversed.... In addition to explicit statutory limitations, a bargaining unit determination by the Board must effectuate the Act's policy of efficient collective bargaining. In this regard, the scope of judicial review of a unit determination is limited to ensuring that the Board's exercise of its authority is not so arbitrary or capricious, or so unsupported by evidence, as to amount to an abuse of discretion.
Id. (citations omitted).
When this court reviews the Board's findings of fact,
[w]e may not disturb those factual findings by the Board or its administrative law judge that are supported by substantial...
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