N.L.R.B. v. AAA Alternator Rebuilders, Inc.

• Decision Date: 07 January 1993
• Docket Number: No. 92-8266,92-8266
• Parties: 142 L.R.R.M. (BNA) 2286, 124 Lab.Cas. P 10,512 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AAA ALTERNATOR REBUILDERS, INC., Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1395

980 F.2d 1395

142 L.R.R.M. (BNA) 2286, 124 Lab.Cas. P 10,512

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AAA ALTERNATOR REBUILDERS, INC., Respondent.

No. 92-8266.

United States Court of Appeals Eleventh Circuit.

Jan. 7, 1993.

Aileen Armstrong, Robert Englehart, Collis Suzanne Stocking, N.L.R.B., Washington, D.C., for petitioner.

C. Lash Harrison, Ford & Harrison, Atlanta, Ga., Jeffrey W. Bell, Jack B. Albanese, Atlanta, Ga., for respondent.

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

Before KRAVITCH, Circuit Judge, GODBOLD and OAKES ^*, Senior Circuit Judges.

GODBOLD, Senior Circuit Judge:

This case involves a dispute over the certification of a collective bargaining representative for a unit at an employer's new plant location based upon an election conducted at the employer's old plant location at a time when the move to the new location was imminent. The union ¹ won the election and was certified as collective bargaining agent. The employer refused to bargain or to furnish information requested by the union. The Board issued a bargaining order. We grant its petition for enforcement.

The facts are straightforward. In June 1990 AAA was engaged in remodeling automobile alternators and starters at a facility in Atlanta, Georgia. During that month the union filed a petition for certification. A representation hearing was conducted. No previous collective bargaining relationship existed between AAA and any union. The Board defined the unit as composed of production, maintenance, warehouse and plant clerical employees, excluding office clericals, guards and supervisors, a total of about 65 of approximately 80 employees.

AAA moved to dismiss the petition on the ground that it would not effectuate the purposes of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1988), to hold an election because the closing of AAA's existing plant and its move to a new plant were imminent and no offers of employment at the new plant had been made or accepted. The Acting Regional Director found that the company's intended relocation did not render an immediate election inappropriate, denied AAA's motion, and set an election for September 7, 1990. On the day of the election the Board granted AAA's request for review of the order directing the election and ordered the ballots impounded pursuant to 29 C.F.R. § 102.67(b).

On October 10, a few days after the move to the new location was scheduled to occur, the Board issued a notice to AAA to show cause why the ballots should not be opened and counted and to supply data covering the number of employees at the new facility who had worked at the old facility and the number of new hires. The actual move from Atlanta to the new facility about 18 miles distant occurred November 20.

In January 1991 the Board issued a decision on review of the election order, holding that the ballots should be opened and counted, based on the ground that the employee complement as of the date of the election was substantial and representative of the complement to be employed at the new location. In support of its conclusion the Board recited these specific factual underpinnings drawn from the employer's response and affidavits: all employees at the old location had been offered jobs at the new facility; of 65 eligible to vote in the election 43 continued working at the new location; as of the date of the order 63 persons were working in the bargaining unit found appropriate. Based on these underpinnings and on the record as a whole the Board found the complement as of the date of the election was substantial and representative of the complement to be employed at the new location and ordered that the ballots be counted.

The count showed 35 votes for the union, 28 against and one nondeterminative challenged ballot. Usual steps followed. AAA's objections to the election were overruled. The union was certified. The Board denied AAA's request for review. AAA refused to bargain, and the Board issued an unfair labor practice complaint charging violation of §§ 8(a)(5) and (1) of the Act. In October 1991 the Board granted the General Counsel's motion for summary judgment and ordered AAA to bargain. 305 N.L.R.B. No. 54. It found that all representation issues were or could have been litigated in the prior representation proceeding and that there was no new and previously unavailable evidence. It therefore accepted the Board findings made in its review of the election.

Congress has entrusted to the Board the control of election proceedings and the determination of the steps necessary to assure that an election is fairly carried out. NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704 (1940). Accordingly, we review for abuse of discretion the Board's determination of whether and when an election should be held. NLRB v. Engineers Constructors, Inc., 756 F.2d 464, 467 (6th Cir.1985); NLRB v. Keller Aluminum Chairs S., Inc., 425 F.2d 709, 710 (5th Cir.1970).

In determining whether a prompt election should be held when a change in the employer's location, and possible changes in the work force, are imminent the Board must balance the objective of insuring maximum employee participation in selecting a bargaining agent against the goal of permitting employees to be represented as quickly as possible, Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 48, 107 S.Ct. 2225, 2238, 96 L.Ed.2d 22 (1987). In striking this balance, it must determine on a case-by-case basis whether the present employment complement is "substantial and representative" of a complement to be employed within the foreseeable future. See Premium Foods, Inc. v. NLRB, 709 F.2d 623, 628 (9th Cir.1983); NLRB v. Pre-Engineered Bldg. Prods Inc., 603 F.2d 134, 136 & n. 1 (10th Cir., 1979). The composition of the pre-move unit may be altered by the move because some employees/voters may not continue their employment at the new location and there may be new hires who did not vote. But, if the complement at the time of the election is "substantial and representative" of the complement at the post-move location, the election may be treated by the Board as determinative of whether there will be a bargaining representative for the post-move unit.

AAA contends, on two grounds, that the Board should not have conducted the election until after the move to the new location. Its major contention is that the issue of whether the election should be held before the move was controlled by Cooper International, Inc., 205 N.L.R.B. 1057 (1973), and that the Board abused its discretion in neither following Cooper nor in distinguishing it. Second, that under the facts a fair election could not be conducted at the old location on the eve of a move.

In Cooper the Board held that an order directing an election would not be useful where the employer's transfer of operation was imminent and there was no evidence that the employer had offered, and that a considerable proportion of the employees had indicated that they would accept, employment at the new location. The Board, therefore, dismissed the petition without prejudice to the filing of a new petition, supported by an adequate showing of interest, when the new facility was in operation and a substantial and representative work force was employed there.

According to AAA the linchpin of Cooper is that existing employees had not received...