N.L.R.B. v. Northeastern University, No. 82-1578

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore ALDRICH and BREYER; BREYER
Citation707 F.2d 15
Parties113 L.R.R.M. (BNA) 2721, 97 Lab.Cas. P 10,129, 11 Ed. Law Rep. 432 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTHEASTERN UNIVERSITY, Respondent.
Docket NumberNo. 82-1578
Decision Date18 May 1983

Page 15

707 F.2d 15
113 L.R.R.M. (BNA) 2721, 97 Lab.Cas. P 10,129,
11 Ed. Law Rep. 432
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
NORTHEASTERN UNIVERSITY, Respondent.
No. 82-1578.
United States Court of Appeals,
First Circuit.
Argued Feb. 4, 1983.
Decided May 18, 1983.

Page 16

Linda B. Weisel, Atty., Washington, D.C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Helen L. Morgan, Atty., Washington, D.C., were on brief, for petitioner.

Herbert L. Turney, Boston, Mass., with whom Widett, Slater & Goldman, P.C., Boston, Mass., was on brief, for respondent.

Before ALDRICH and BREYER, Circuit Judges, and ZOBEL, * District Judge.

BREYER, Circuit Judge.

Northeastern University challenges the legality of an NLRB-certified union election among its transportation workers. Its claims concern the status and activities of James Antonizick, the coordinator of its

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transportation department. Northeastern considered Antonizick a "supervisor," ineligible to participate in the election; the union considered him an "employee," eligible to work for and to vote for the union. The Board's regional director refused to decide the question before the vote. After the election, which the union won 6 to 4, the regional director considered Northeastern's argument that Antonizick was a supervisor and undertook his own investigation. He concluded that even if Antonizick was a supervisor, Antonizick's pro-union activities were not "coercive;" thus, the election was valid. The Board denied Northeastern's request for further consideration of the matter and upheld the regional director's decision. Northeastern refused to bargain; the Board ordered it to do so, In re Northeastern University, 261 N.L.R.B. No. 140 (May 19, 1982); and we now have before us the Board's application for the enforcement of its order.

At the outset Northeastern argues that the regional director should have decided Antonizick's status before the election. Northeastern did not know whether or not it could control Antonizick's pro-union activity. While it might be expected to control the pro-union activity of a "supervisor," any effort to control the pro-union activity of an "employee" could amount to an unfair labor practice. See 29 U.S.C. Sec. 158(a). These factors weigh in favor of a speedy pre-election decision. On the other hand, the regional director might have believed that to decide this disputed factual issue before the election would have meant delaying the election or interfering with the election campaign. The balancing of these considerations is for the agency, not the court. And, we see nothing unlawful about the agency's conclusion; it is not "arbitrary, capricious, [or] an abuse of discretion." 5 U.S.C. Sec. 706(2)(A); see, e.g., Fall River Savings Bank v. NLRB, 649 F.2d 50, 56, (1st Cir.1981) ("wide degree of discretion"); Melrose-Wakefield Hospital Association, Inc. v. NLRB, 615 F.2d 563, 566-67 (1st Cir.1980).

Northeastern's main argument is related to its claim that "supervisor" Antonizick unlawfully influenced the election results. See, e.g., ITT Lighting Fixtures v. NLRB, 658 F.2d 934, 937 (2d Cir.1981) (election invalid if "supervisor's conduct reasonably tended to have such a coercive effect on the employees that it was likely to impair their freedoms of choice"); Fall River Savings Bank v. NLRB, 649 F.2d at 56 (danger of supervisor's conduct causing "employees to support the union out of fear of retaliation"); Turner's Express, Inc. v. NLRB, 456 F.2d 289, 291 (4th Cir.1972) ("The law is clear that supervisory pressure upon employees in the selection of a bargaining representative is coercive."). It argues that the regional director rejected its charge (that Antonizick "coerced" his fellow employees into casting pro-union votes) on the basis of testimony and affidavits that he obtained during his own investigation. It adds that it could not obtain effective Board review of this decision because the Board would not let it see the regional director's investigatory material nor would it review that material itself. Under the Board's rules this investigatory material is not part of the record before the Board or before this court. 29 C.F.R. Sec. 102.69(g)(1)(ii)....

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6 practice notes
  • N.L.R.B. v. Fruehauf Corp., No. 83-4177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 Diciembre 1983
    ...1195, 1197-99 (4th Cir.1980); Prestolite Wire Division v. NLRB, 592 F.2d 302, 304-05 (6th Cir.1979). Cf. NLRB v. Northeastern University, 707 F.2d 15, 17-19 (1st Cir.1983) (indicating deference to Board's expressed need for confidentiality). The Acting Regional Director expressly relied in ......
  • N.L.R.B. v. Monark Boat Co., No. 82-1963
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 22 Julio 1983
    ...is harmless error. NLRB v. Eskimo Radiator Mfg. Co., 688 F.2d 1315, 1318 (9th Cir.1982) (per curiam). Cf. NLRB v. Northeastern University, 707 F.2d 15 (1st Cir.1983) (the agency's decision to withhold investigatory material is reasonable where the RD does not rely on it). Counsel for the Bo......
  • Ntnl Labor Relations v. Regional Home Care Servicesm, No. 00-1268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 7 Diciembre 2000
    ...a supervisor or was an employee. See, e.g., Wright Memorial Hosp. v. NLRB, 771 F.2d 400 (8th Cir. 1985); NLRB v. Northeastern Univ., 707 F.2d 15 (1st Cir. 1983). Here, the Board ruled that the individual was a supervisor. A pro-union supervisor presents two possible scenarios which could in......
  • N.L.R.B. v. Clark Distributing Co., Inc., No. 90-5086
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 24 Octubre 1990
    ...the entire election. The balancing of these competing considerations is for the Board, not the court, See NLRB v. Northeastern University, 707 F.2d 15 (1st Cir.1983). Clark argues that the utilization of the challenged ballot procedure misled the voters as to the scope of the unit involved ......
  • Request a trial to view additional results
6 cases
  • N.L.R.B. v. Fruehauf Corp., No. 83-4177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 Diciembre 1983
    ...1195, 1197-99 (4th Cir.1980); Prestolite Wire Division v. NLRB, 592 F.2d 302, 304-05 (6th Cir.1979). Cf. NLRB v. Northeastern University, 707 F.2d 15, 17-19 (1st Cir.1983) (indicating deference to Board's expressed need for confidentiality). The Acting Regional Director expressly relied in ......
  • N.L.R.B. v. Monark Boat Co., No. 82-1963
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 22 Julio 1983
    ...is harmless error. NLRB v. Eskimo Radiator Mfg. Co., 688 F.2d 1315, 1318 (9th Cir.1982) (per curiam). Cf. NLRB v. Northeastern University, 707 F.2d 15 (1st Cir.1983) (the agency's decision to withhold investigatory material is reasonable where the RD does not rely on it). Counsel for the Bo......
  • Ntnl Labor Relations v. Regional Home Care Servicesm, No. 00-1268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 7 Diciembre 2000
    ...a supervisor or was an employee. See, e.g., Wright Memorial Hosp. v. NLRB, 771 F.2d 400 (8th Cir. 1985); NLRB v. Northeastern Univ., 707 F.2d 15 (1st Cir. 1983). Here, the Board ruled that the individual was a supervisor. A pro-union supervisor presents two possible scenarios which could in......
  • N.L.R.B. v. Clark Distributing Co., Inc., No. 90-5086
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 24 Octubre 1990
    ...the entire election. The balancing of these competing considerations is for the Board, not the court, See NLRB v. Northeastern University, 707 F.2d 15 (1st Cir.1983). Clark argues that the utilization of the challenged ballot procedure misled the voters as to the scope of the unit involved ......
  • Request a trial to view additional results

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