N.L.R.B. v. Berryfast, Inc.

• Decision Date: 28 August 1984
• Docket Number: No. 83-7736,83-7736
• Citation: 741 F.2d 1161
• Parties: 117 L.R.R.M. (BNA) 2151, 101 Lab.Cas. P 11,167 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BERRYFAST, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1161

741 F.2d 1161

117 L.R.R.M. (BNA) 2151, 101 Lab.Cas. P 11,167

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BERRYFAST, INC., Respondent.

No. 83-7736.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1984.

Decided Aug. 28, 1984.

Collis Suzanne Stocking, Deputy Assoc. General Counsel, N.L.R.B., Washington, D.C., for petitioner.

Michael J. Bobroff, Husch, Eppenberger, Donohue, Elson, & Cornfield, St. Louis, Mo., for respondent.

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

Before GOODWIN, WALLACE and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

At issue here is the National Labor Relations Board's (the Board) decision not to set aside a representation election because of failure of an employee to cast a key vote. The Board found that the employee did not take reasonable steps to vote and petitions this court for enforcement of its order directing Berryfast, Inc. (the Company) to bargain with the Sequoia District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Union). The Board found that the Company violated sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(5) and (1), by refusing to bargain with the Union. The Company admits its refusal to bargain, but argues it had no duty to bargain because the Board improperly certified the Union as the exclusive bargaining representative of the Company's production employees. We disagree. There is substantial evidence to support the Board's decision not to set aside the election. We therefore enforce the Board's order.

BACKGROUND

On September 11, 1981 the Board held a representation election for the thirty-six production employees at the Company's Tulare, California plant. Eighteen votes were cast for the Union and seventeen against. The Company contends that because one production employee, Jeannette Turner, was denied her right to vote in the election, the election should be set aside.

All parties had agreed that the eligibility date for employees to participate in the election was the payroll period ending August 7, 1981. The Company compiled an eligibility list from the payroll records for that week. Jeannette Turner was on temporary leave of absence at the time. Consequently, her name did not appear on the payroll printout, and therefore did not appear on the eligibility list.

Two to three weeks prior to the election she and her husband, who was also a production employee at the plant and whose name did appear on the eligibility list, discussed her eligibility to vote. Neither, however, asked anyone at the Company or from the Board about her eligibility until the day of the election. That morning, an hour before the polls were to open, Mr. Turner approached Larry Gooden, the Company's chief operating officer who had compiled the eligibility list, and asked whether Mrs. Turner would be allowed to vote. Gooden replied that she could not vote, because her name was not on the list. Mr. Turner phoned his wife and informed her of Gooden's response. Neither Mr. nor Mrs. Turner inquired further, nor did Mrs. Turner come to the polling place to attempt to cast a challenged ballot.

A clearly posted Notice of Election directed all inquiries concerning eligibility rules to the Regional Director or the Board agent in charge of the election. A Board agent was present at the election. When asked whether he had attempted to talk with that agent, Mr. Turner stated that he had not because:

I just assumed that it was pretty cut and dried because of her not being on the payroll. They would probably tell me the same thing, so I didn't even think to ask.

The Hearing Officer concluded from these facts that because Mrs. Turner was eligible to vote and had been disenfranchised through no fault of her own, and because her vote could have changed the result of the election, the election should be set aside. The Board reversed. In rejecting the conclusion that Mrs. Turner had been disenfranchised through no fault of her own, the Board noted that she had not come to the polling place, and that neither she nor her husband had made any attempt to ask the Board representative in charge of the election about her eligibility.

DISCUSSION

In determining when an election should be set aside, the Board must balance the strong need to assure that all eligible employees have been given an opportunity to vote, see NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946), against the competing policy favoring "prompt completion of election proceedings." See Versail Manufacturing, Inc., 212 N.L.R.B. 592, 593 (1974). The Board will not set aside an election where an employee, whose vote might have been outcome determinative, simply decides not to vote or does not take reasonable steps to attempt to vote. See, e.g., NLRB v. Triangle Express, Inc., 683 F.2d 337, 338-39 (10th Cir.1982) (election not set aside where part-time...