N.L.R.B. v. Broyhill Co., No. 75--1260

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore HEANEY, WEBSTER and HENLEY; HEANEY
Citation528 F.2d 719
Parties91 L.R.R.M. (BNA) 2109, 78 Lab.Cas. P 11,204 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROYHILL COMPANY, Respondent.
Docket NumberNo. 75--1260
Decision Date02 January 1976

Page 719

528 F.2d 719
91 L.R.R.M. (BNA) 2109, 78 Lab.Cas. P 11,204
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
BROYHILL COMPANY, Respondent.
No. 75--1260.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 10, 1975.
Decided Jan. 2, 1976.

Page 720

William H. Bruckner, Nelson, Harding, Marchetti, Leonard & Tate, Houston, Tex., for respondent.

David S. Fishback, Atty., N.L.R.B., Washington, D.C., for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, N.L.R.B., Washington, D.C., on brief.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

This case is before the Court on the application of the National Labor Relations Board to enforce its order requiring the Broyhill Company to bargain with the certified representative of its employees. Broyhill concedes its refusal to bargain, but argues that the refusal is justified because the Board's certification was invalid as the bargaining election, on which the certification was based, was not conducted at an appropriate time. We enforce the Board's order.

Broyhill manufactures agricultural, industrial and turf equipment. It employs approximately sixty persons on a yearround basis. From September through May, it employs approximately twenty-five to thirty additional employees, primarily students from a college located six miles from the plant and local farmers. These part-time employees usually work a scheduled shift between 4:30 P.M. and 10:30 P.M. At the end of the school year, most of the college employees apparently terminate their employment, but are told that they are eligible to be rehired the following fall. The farmers are given the same opportunity of reemployment.

On April 19, 1973, District Lodge No. 162, International Association of Machinists and Aerospace Workers, AFL--CIO, filed a petition for certification as representative of certain Broyhill employees for the purposes of collective bargaining. The Board's representation hearing was held on May 17, 1973. On June 15, 1973, the Regional Director directed an election at Broyhill's plant in a unit which included the September-through-May part-time employees. He rejected Broyhill's request that the election be delayed until late September or early October. He stated:

At the time of the hearing on May 17, 1973, there were approximately 60 employees on the Employer's payroll. This appears to be approximately the number of employees employed on a full-time basis throughout the year. The number constitutes approximately 70 percent of the Employer's work force during its busiest part of the year. I therefore find that the present complement of employees constitutes a substantial representative segment for purposes of conducting an immediate election. * * * Accordingly, the Employer's request for postponement of the election is denied. (Citation omitted.)

Broyhill requested a clarification from the Regional Director. In response to that request, the Regional Director stated:

The prior Decision is hereby clarified * * * to provide that seasonal (or regular part-time) employees not employed at the time of the election who have a reasonable expectancy of recall shall be eligible to vote. * * * Since any such employees are eligible voters, their names and addresses, as known to the Employer, should be included on the Excelsior list which should be filed with the Regional Office

Page 721

on or before July 3, 1973. (Citation omitted and emphasis included.)

Thereafter, Broyhill filed a timely request for review of the Regional Director's decision with the Board. The Board denied the request.

The...

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2 practice notes
  • N.L.R.B. v. Engineers Constructors, Inc., No. 84-5582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 7, 1985
    ...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 (1......
  • Bituma Corp. v. N.L.R.B., Nos. 93-1901
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 11, 1994
    ...June 1992. We disagree. We review for abuse of discretion an NLRB decision to hold an election at a particular time. NLRB v. Broyhill Co., 528 F.2d 719, 721 (8th Cir.1976); NLRB v. Engineers Constructors, Inc., 756 F.2d 464, 467 (6th Cir.1985). To decide the appropriate time for an initial ......
2 cases
  • N.L.R.B. v. Engineers Constructors, Inc., No. 84-5582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 7, 1985
    ...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 (1......
  • Bituma Corp. v. N.L.R.B., Nos. 93-1901
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 11, 1994
    ...June 1992. We disagree. We review for abuse of discretion an NLRB decision to hold an election at a particular time. NLRB v. Broyhill Co., 528 F.2d 719, 721 (8th Cir.1976); NLRB v. Engineers Constructors, Inc., 756 F.2d 464, 467 (6th Cir.1985). To decide the appropriate time for an initial ......

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