N.L.R.B. v. Michigan Rubber Products, Inc., 83-5313

• Decision Date: 20 June 1984
• Docket Number: No. 83-5313,83-5313
• Parties: 116 L.R.R.M. (BNA) 2876, 101 Lab.Cas. P 11,076 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MICHIGAN RUBBER PRODUCTS, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 111

738 F.2d 111

116 L.R.R.M. (BNA) 2876, 101 Lab.Cas. P 11,076

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MICHIGAN RUBBER PRODUCTS, INC., Respondent.

No. 83-5313.

United States Court of Appeals, Sixth Circuit.

Argued May 10, 1984.

Decided June 20, 1984.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Elinor Hadley Stillman, Paul E. Bateman, Ellen Boardman, argued, Detroit, Mich., for petitioner.

Peter J. Kok, Craig H. Lubben, argued, Grand Rapids, Mich., for respondent.

Before KENNEDY and JONES, Circuit Judges, and COHN, District Judge. ^*

PER CURIAM.

This is an application for enforcement of a National Labor Relations Board bargaining order. The United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC (union) held an election among employees of respondent Michigan Rubber Products, Inc. (company) on July 19, 1979. The union won the election by a vote of 38 to 31, and the company filed objections to the manner in which the election was conducted. The Regional Director issued a Report and Recommendation on Objections on August 15, 1979, recommending that the company's objections be overruled and the union certified. The company then filed exceptions to the report, arguing that the Regional Director should have conducted a hearing. The Board certified the union on October 16, 1979, adopting the Regional Director's findings and recommendations. On October 19, 1979, the union requested the company to bargain with it, which the company refused to do. The union filed an unfair labor practice charge with the Board. The Board's General Counsel filed a complaint with the Board and later moved for summary judgment, which the Board granted on August 12, 1980. The Board ordered the company to bargain with the union. ¹

The Board filed this application for enforcement of its August 12, 1980 order on May 3, 1983. The parties have not bargained during the intervening three years. Upon an examination of the record, and after careful consideration of respondent's arguments against enforcing the Board's order, we order enforcement.

I.

Respondent first argues that the Board's enforcement action is barred by laches because the Board delayed almost three years after its bargaining order was filed before bringing this enforcement proceeding. The Board explains that the delay "result[ed] from a breakdown in communications between the office that referred the case for enforcement and the office responsible for seeking enforcement."

The Board cites two cases in which the Supreme Court ordered enforcement of a bargaining order in the face of lengthy delays. While neither case is precisely on point they are nonetheless persuasive.

First the Board cites NLRB v. Pool Manufacturing Co., 339 U.S. 577, 70 S.Ct. 830, 94 L.Ed. 1077 (1950), in which the court allowed the Board to bring an enforcement proceeding two and a half years after entering a bargaining order. In Pool, the Board and the employer had been negotiating for at least part of those two and a half years, and the court found that "exhaustion of negotiation techniques before a decree is requested may consume many months after the Board's order and before such techniques fail." Id. at 580, 70 S.Ct. at 832. A strict judicial time limitation would therefore frustrate Congress' purpose of permitting, but not requiring resort to an enforcement decree, said the court. Id. Here, the record does not show any communication between the Board and the company during the three-year interim. However, as the Pool court noted, respondent cannot complain of the delay because "[t]he employer ... could have obtained review of the Board order when it was entered ... [and] is hardly in a position to object [to any delay]." Id. at 581, 70 S.Ct. at 832.

The Board also cites NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), in which the court stated: "Inordinate delay in any case is regrettable, but Congress has introduced no time limitation into the [National Labor Relations] Act except that in Sec. 10(b) [which requires that complaints of unfair labor practices be filed within six months of the occurrence of such practices]." Id. at 748 n. 16, 82 S.Ct. at 1114 n. 16. The challenged delay in Katz was a period of almost three years between the occurrence of the unfair labor practices and the Board's final decision and order. See NLRB v. Katz, 289 F.2d 700, 701 (2d Cir.1961). We note that Katz dealt with a statute of limitations question and did not specifically address the issue of laches presented here.

We do not doubt that at some point laches would apply against the Board for inordinate delay in bringing an action. The Supreme Court has, however, indicated that delays of over two years are not intolerable. To hold otherwise would tend to penalize the union for the Board's delinquency--though at some point it could become incumbent upon the union to urge the Board into action.

Here, however, there is no allegation that the delay has in any way prejudiced respondent, or given the Board, or union, an unfair advantage. Absent such a change in the relative positions of the parties the doctrine of laches will not apply. Armco, Inc., v. Armco Burglar Alarm Co., 693 F.2d 1155, 1161 (5th Cir.1982); NLRB v. Norfolk Shipbuilding and Drydock Corp., 172 F.2d 813 (4th Cir.1949). The court in Norfolk enforced the Board's order in spite of a delay of over two years in seeking enforcement, noting that no substantial harm had resulted from the delay, and that if there had been a loss of the union majority this stemmed from the company's failure to comply with the Board's bargaining order. Id. at 816.

Respondent argues that the question of harm is not dispositive, that the Board has an affirmative obligation to show that its order does justice to respondent's current employees. The company argues that it would now be an injustice to "force" representation on the employees. Respondent cites NLRB v. Eanet, 179 F.2d 15 (D.C.Cir.1949), and NLRB v. Marion Rohr, 114 L.R.R.M. 2126 (2d Cir.1983). However, both of these cases involve bargaining orders which were issued without any election ever having been held, and so are not persuasive here, where respondent's employees voted for the union.

Respondent's contention is in addition refuted by NLRB v. DIT-MCO Inc., 428 F.2d 775 (8th Cir.1970), in which there was a delay of nearly two years between the election and certification by the Board. The court enforced the Board's order, saying:

Mere administrative delay affords no defense to an unfair labor practice charge. This policy of the law preserves the position of the contending parties as of the time of the election, not their posture at the close of litigation. If, in some instances, the rights of the majority are subjected to minority control, relief lies in seeking a change in representation through a new election following the statutory period of one year.

Id. at 781 (citations omitted).

Accordingly, we find that the Board's action is not barred by laches.

II.

Respondent contends that the union election was invalid and the Board improperly issued a bargaining order because 1) the Board's agent at the election exhibited favoritism towards the union; 2) the union committed illegal electioneering at the polls; and 3) the union made misrepresentations at a time when respondent could not effectively respond. The question for review is whether the Board abused its discretion in issuing the bargaining order. See NLRB v. Holland American Wafer Co., 683 F.2d 135, 137-38 (6th Cir.1982); NLRB v. Hardy-Herpolsheimer Division of Allied Stores Inc., 453 F.2d 877, 878 (6th Cir.1972); NLRB v. Dean Foods Co., 421 F.2d 664 (6th Cir.), cert. denied, 398 U.S. 939, 90 S.Ct. 1843, 26 L.Ed.2d 271 (1970); cf. Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351 (6th Cir.1983) (applying substantial evidence standard).

A.

The first claim that the Board agent improperly showed a pro-union bias is based on three incidents which occurred at the company on election day. The election was held in two shifts to accommodate the company's employees, who worked morning and afternoon shifts. The election was held in the company's lunchroom, and the voting booth and ballot box were removed between voting periods. In addition to the Board agent there were present, during the polling periods, two union observers and two company observers.

Respondent's first complaint is that the Board agent stationed a union observer at the door to the voting area and instructed him to admit the employees into the voting area one at a time. Respondent contends that this gave the impression of prejudice towards the union and appeared to give the union control of the voting process. ²

However, the Board agent apparently issued her instruction to the observers as a group, and not to the union observer in particular, who happened to perform the task because he was standing closest to the door at the time. There is evidence that it was necessary to have someone control the flow of traffic in order to avoid congestion, because there was only one door in and out of the lunchroom. At the same time, a company observer stationed himself by the ballot box, which negated any suggestion of partiality towards the union. The Board was justified in concluding that the placement of these observers had no impact on the votes cast in the election.

The company's second complaint is that following the morning polling session a union representative carried the metal voting booth to the agent's car, while the agent carried the ballot box and election kit. As the Board agent and the union representative left the voting area they were accompanied initially by two company managers, the company and union observers, and another union representative. The two union representatives and one observer accompanied the agent to her car.

Respondent argues that this situation gave the appearance of fraternization, and compares it to a...