N.L.R.B. v. Engineers Constructors, Inc., 84-5582

• Decision Date: 07 March 1985
• Docket Number: No. 84-5582,84-5582
• Citation: 756 F.2d 464
• Parties: 118 L.R.R.M. (BNA) 2990, 102 Lab.Cas. P 11,383 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ENGINEERS CONSTRUCTORS, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 464

756 F.2d 464

118 L.R.R.M. (BNA) 2990, 102 Lab.Cas. P 11,383

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ENGINEERS CONSTRUCTORS, INC., Respondent.

No. 84-5582.

United States Court of Appeals Sixth Circuit.

Argued Jan. 16, 1985.

Decided March 7, 1985.

Elliott Moore, Margaret Bezou (argued), Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.

Jeff Weintraub (argued), Memphis, Tenn., for respondent.

Before KEITH, KENNEDY and CONTIE, Circuit Judges.

CONTIE, Circuit Judge.

The National Labor Relations Board (Board) petitions for enforcement of its order finding Engineers Constructors, Inc., (ECI) in violation of 29 U.S.C. Sec. 158(a)(1), (5) due to ECI's refusal to bargain with the employee representative elected in a Board-directed election. We have jurisdiction pursuant to 29 U.S.C. Sec. 160(e), and, accordingly, grant enforcement.

I.

On June 7, 1983, Laborers' International Union of North America, Local No. 1441, AFL-CIO filed a petition with the Board seeking certification as the representative for construction and general laborers of ECI. A hearing on the petition held on June 22, 1983 established that ECI was performing concrete and foundation work at the corporate headquarters of Federal Express in Memphis, Tennessee. The work began in January 1983 and was estimated to be completed in March or April 1984. However, most of ECI's laborer work would be completed by mid-July 1983, with the rest of the work consisting of clean-up. ECI took the position that the petition should be dismissed since the potential bargaining unit was contracting. On the date of the hearing, ECI had 90 employees at the job site, 53 of whom were laborers.

On July 1, 1983, the Acting Regional Director ordered an election among

All construction and general laborers and all other employees employed in a laborers classification at the Employer's jobsite located at 4001 Airways Boulevard, Memphis, Tennessee, excluding all other employees, including office clerical, technical, professional employees, guards, and supervisors as defined in the Act.

The director's opinion stated as follows:

From the record it is clear that the Employer's work on this particular project will end at some point in the future. At present that point is expected to be reached some time during March 1984. However, some eight to nine months will pass before the project is completed. While the complement of employees in the laborer classification will apparently decline during this period, this decline for the most part will be slow and gradual. The work to be performed by laborers in the future, while differing in the exact duties to be performed, will be of the same nature as that performed in the past. Under these circumstances, as some eight to nine months of collective bargaining will remain before the final cessation of work, and as the basic nature of the work will remain the same, I find that the present situation does not constitute a contracting unit.

On July 27, 1983, the Board denied ECI's petition for review on the ground that it raised no substantial issues.

On July 29, 1983, an election was held with 25 of the 36 ballots cast favoring representation. On August 23, 1983, the union was certified as the exclusive representative of the employees, and on October 5, ECI's petition for review of the certification was denied.

After ECI subsequently refused to bargain with the union, the union filed a charge with the Board alleging violations of 29 U.S.C. Sec. 158(a)(1), (5). The Board issued a complaint and General Counsel moved to transfer the case to the Board and for summary judgment. On December 13, 1983, the Board entered an order transferring the proceedings and giving notice to ECI to show cause why summary judgment should not be entered. On April 30, 1984, the Board issued an order finding ECI in violation of 29 U.S.C. Sec. 158(a)(1), (5) and directing ECI to bargain with the union.

II.

ECI contends that the acting director erred in ordering an election since the bargaining unit was contracting and the nature of work performed by the laborers was changing from construction to clean-up. "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. Sec. 160(e). "Normally, under the Board's existing rules to warrant an immediate election where there is definite evidence of an expanding or contracting unit, the present work complement must be substantial and representative of the ultimate complement as projected both as to the number of employees and the number and kind of job classifications." Douglas Motors Corp., 128 NLRB 307, 308 (1960) (footnote omitted).

The regional director's determination that the work of the laborers subsequent to the election was representative of the work they were performing previously and at the time of the election is supported by substantial evidence. Testimony at the hearing indicated that clean-up work or similar manual labor was typically required of laborers by ECI and that laborers engaged in such work both before and after the construction work was completed. Therefore, although the laborers' work prior to July 1983 consisted primarily of construction work, clean-up work was clearly part of their duties. Further, since most construction was completed by the July 29 1983 election, the work force of laborers engaged primarily in clean-up work was representative of the ultimate bargaining unit. Therefore, we find ECI's contention that the changing nature of the work force made an election inappropriate without merit.

The Board's determinations regarding whether and when an election should be held are reviewed for abuse of discretion. Revco D.S., Inc. v. NLRB, 653 F.2d 264, 265 (6th Cir.1981); NLRB v. P.A.F. Equipment Co., Inc., 528 F.2d 286, 287 (10th Cir.1976) ("The Board's determination of whether to conduct an election is not subject to modification by a reviewing court."); NLRB v. Broyhill Company, 528 F.2d 719, 721 (8th Cir.1976); Harlan # 4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir.), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763 (1974); NLRB v. Keller Aluminum Chairs Southern, Inc., 425 F.2d 709, 710 (5th Cir.1970); Gould, Inc. v. Fuchs, 486 F.Supp. 164, 168 (D.Conn.1980). While the judgment of the Board is subject to judicial review, "if its construction of the statue is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute." Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); NLRB v. Local Union No. 103, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978); NLRB v. Truck Drivers, Local Union No. 449, International Brotherhood of Teamsters, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957) ("The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board subject to limited judicial review.") (footnote omitted). "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, must be enforced." Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978) (footnote omitted); NLRB v. Pipefitters Union Local No. 120, 719 F.2d 178, 181 (6th Cir.1983); Thomas Industries, Inc. v. NLRB, 687 F.2d 863, 866 (6th Cir.1982); NLRB v. Retail Store Employees Union, Local 876, 570 F.2d 586, 590 (6th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 109 (1978). "Unless Congress has given the NLRB a specific directive ... the courts should defer to the NLRB's exercise of expertise and discretion--including decisions it bases on presumptions drawn from past experience...." Beth Israel Hospital & Geriatric Center v. NLRB, 688 F.2d 697, 699 (10th Cir.1982). However, despite this broad discretion, "[c]areful judicial scrutiny of the Board's action is necessary ... in the face of accusations of failure to abide by precedent since the courts have an obligation to ensure that administrative agencies adhere to enumerated policies and procedures." Hall-Brooke Hospital v. NLRB, 645 F.2d 158, 160 (2d Cir.1981).

Board precedent provides no rule dispositive of this case. A decision regarding the timing of an election involves balancing the often conflicting policies of maximum employee participation in the selection of a bargaining agent and permitting employees as immediate representation as possible. Clement-Blythe Companies, 182 NLRB 502 (1970), enforced, 65...