N.L.R.B. v. Black Bull Carting Inc., Nos. 1890

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPER CURIAM
Citation29 F.3d 44
Parties146 L.R.R.M. (BNA) 2777, 63 USLW 2064, 128 Lab.Cas. P 11,139 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent, v. BLACK BULL CARTING INC., and Black Bull Transfer Station, Inc., Respondents-Cross-Petitioners. ockets 93-4273, 94-4007.
Decision Date05 July 1994
Docket NumberNos. 1890,D,2096

Page 44

29 F.3d 44
146 L.R.R.M. (BNA) 2777, 63 USLW 2064,
128 Lab.Cas. P 11,139
NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent,
v.
BLACK BULL CARTING INC., and Black Bull Transfer Station,
Inc., Respondents-Cross-Petitioners.
Nos. 1890, 2096, Dockets 93-4273, 94-4007.
United States Court of Appeals,
Second Circuit.
Argued June 30, 1994.
Decided July 5, 1994.

Page 45

Joseph J. Jablonski, Jr., N.L.R.B., Washington, DC (Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Howard E. Perlstein, Deputy Asst. Gen. Counsel, on the brief), for petitioner-cross-respondent.

Gary C. Cooke, New York City (Horowitz & Pollack, on the brief), for respondents-cross-petitioners.

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

PER CURIAM:

Petitioner National Labor Relations Board (the "Board") petitions for enforcement of its order dated April 22, 1993, requiring respondents Black Bull Carting Inc., et al. ("Black Bull"), to bargain with Private Sanitation Union, Local 813, International Brotherhood of Teamsters, AFL-CIO ("Local 813" or the "Union"), following the Board's determination that Local 813 won a representation election. Black Bull cross-petitions for review, seeking to set aside the election on the ground that Local 813 used an unauthorized person as an election observer. For the reasons below, we grant enforcement of the order and deny the cross-petition for review.

In a representation election to determine what union, if any, would represent certain Black Bull employees, Local 813 used as an observer a Union official who was an employee of a company other than Black Bull. It was eventually determined that Local 813 won the election, and the Board has

Page 46

ordered Black Bull to bargain with Local 813. Black Bull, relying in part on the Board's Casehandling Manual ("Manual"), which states that "[o]bservers must be non-supervisory employees of the employer, unless a written agreement" by the parties "provides otherwise" (Manual at Sec. 11310), contends that the election should be set aside. We reject Black Bull's contentions.

Black Bull's reliance on the Manual is flawed. The Manual itself provides that the guidelines it sets out are "not Board rulings or directives and although it is expected that they will be followed ..., it is also expected that there may be departures through exercise of professional judgment in varying circumstances. They are not intended to be and should not be viewed as binding...

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10 practice notes
  • Am. Council of Blind of N.Y. Inc. v. City of New York, 18 Civ. 5792 (PAE)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 27 December 2021
    ...compliance with their remedial orders is well established." Mickalis Pawn Shop, LLC, 645 F.3d at 145 (quoting Yonkers Bd. of Educ, 29 F.3d at 44). "This Court has broad discretion to appoint a compliance monitor as a form of equitable remedy, and may tailor the appointment order to 'the spe......
  • N.L.R.B. v. Arthur Sarnow Candy Co., Inc., No. 1922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 10 November 1994
    ...NLRB v. Mattison Mach. Works, 365 U.S. 123, 123-24, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961) (per curiam); NLRB v. Black Bull Carting Inc., 29 F.3d 44, 46 (2d Cir.1994) (per curiam) ("A party seeking to overturn an election on the ground of a procedural irregularity has a heavy burden."); Ne......
  • United States v. Apple Inc., Nos. 12 Civ. 2826(DLC), 12 Civ. 3394(DLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 16 January 2014
    ...a party has proved resistant or intransigent to complying with the remedial purpose of the injunction in question. Yonkers Bd. of Educ., 29 F.3d at 44. Thus, “a monitor may report on a defendant's ‘compliance with the district court's decree and help implement that decree.” United States v.......
  • Kaolin Mushroom Farms, Inc. v. Pennsylvania Labor Relations Bd.
    • United States
    • Pennsylvania Commonwealth Court
    • 10 November 1997
    ...an extent materially to have affected the election results."). Moreover, as the Second Circuit stated in NLRB v. Black Bull Carting, Inc., 29 F.3d 44, 46 (2d A party seeking to overturn an election on the ground of a procedural irregularity has a heavy burden[,] [and] [t]he presence of such......
  • Request a trial to view additional results
10 cases
  • Am. Council of Blind of N.Y. Inc. v. City of New York, 18 Civ. 5792 (PAE)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 27 December 2021
    ...compliance with their remedial orders is well established." Mickalis Pawn Shop, LLC, 645 F.3d at 145 (quoting Yonkers Bd. of Educ, 29 F.3d at 44). "This Court has broad discretion to appoint a compliance monitor as a form of equitable remedy, and may tailor the appointment order to 'the spe......
  • N.L.R.B. v. Arthur Sarnow Candy Co., Inc., No. 1922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 10 November 1994
    ...NLRB v. Mattison Mach. Works, 365 U.S. 123, 123-24, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961) (per curiam); NLRB v. Black Bull Carting Inc., 29 F.3d 44, 46 (2d Cir.1994) (per curiam) ("A party seeking to overturn an election on the ground of a procedural irregularity has a heavy burden."); Ne......
  • United States v. Apple Inc., Nos. 12 Civ. 2826(DLC), 12 Civ. 3394(DLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 16 January 2014
    ...a party has proved resistant or intransigent to complying with the remedial purpose of the injunction in question. Yonkers Bd. of Educ., 29 F.3d at 44. Thus, “a monitor may report on a defendant's ‘compliance with the district court's decree and help implement that decree.” United States v.......
  • Kaolin Mushroom Farms, Inc. v. Pennsylvania Labor Relations Bd.
    • United States
    • Pennsylvania Commonwealth Court
    • 10 November 1997
    ...an extent materially to have affected the election results."). Moreover, as the Second Circuit stated in NLRB v. Black Bull Carting, Inc., 29 F.3d 44, 46 (2d A party seeking to overturn an election on the ground of a procedural irregularity has a heavy burden[,] [and] [t]he presence of such......
  • Request a trial to view additional results

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