N.L.R.B. v. Speedway Petroleum, Div. of Emro Marketing Co.

• Decision Date: 17 July 1985
• Docket Number: No. 84-2838,84-2838
• Parties: 119 L.R.R.M. (BNA) 3366, 103 Lab.Cas. P 11,551 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPEEDWAY PETROLEUM, DIVISION OF EMRO MARKETING COMPANY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 151

768 F.2d 151

119 L.R.R.M. (BNA) 3366, 103 Lab.Cas. P 11,551

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SPEEDWAY PETROLEUM, DIVISION OF EMRO MARKETING COMPANY, Respondent.

No. 84-2838.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1985.

Decided July 17, 1985.

Elinor Stillman, Associate Gen. Counsel, Washington, D.C., for petitioner.

Lawrence M. Cohen, Fox & Grove, Chicago, Ill., for respondent.

Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and WRIGHT, Senior Circuit Judge. ^*

CUMMINGS, Chief Judge.

The National Labor Relations Board (the "Board") seeks enforcement of its order finding that Speedway Petroleum, Division of Emro Marketing (the "Company" or "Speedway") had committed an unfair labor practice as defined in Sec. 8(a)(1) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(a)(1) and (5), by refusing to bargain with the Board-certified United Food and Commercial Workers International Union, Local No. 35 (the "Union"). The Company opposes enforcement, challenging the certification of the Union as the exclusive bargaining representative of the relevant unit of Company employees. We enforce the order.

I

The Union filed a petition with the Board on June 15, 1983, seeking a representation election in a unit of Company employees. The Regional Director conducted a secret ballot election on July 29, 1983. The tally of ballots revealed that eight ballots were cast, with four cast for representation by the Union, two cast against representation and with two ballots challenged. The Union challenged the ballots claiming that one employee, Kelly Corrigan, was no longer employed by the Company on July 1, 1983, the stipulated cutoff date for voter eligibility, and that another employee, James Smith, was not working for the Company prior to expiration of the eligibility date (App. 43, 48).

The Regional Director conducted an administrative investigation of the challenges pursuant to 29 C.F.R. Sec. 102.69(c)(1) (1984), and on August 19, 1983, issued his Report recommending that the challenges to the Smith and Corrigan ballots be sustained (App. 60-61). The challenge to employee Corrigan's ballot was sustained because she was determined to be a "casual employee who works on too sporadic a basis to have a community of interest with other employees" (App. 48). The Regional Director sustained the challenge to employee Smith's ballot because he was hired but not working as of the eligibility date since he had only engaged in certain "pre-work" activities ¹ (App. 50). The Company filed exceptions to the Regional Director's report, contending that the Regional Director erred in sustaining the challenges and that an evidentiary hearing should have been conducted regarding the challenges. On March 10, 1984, the Board adopted the Regional Director's findings and recommendations and pursuant to Sec. 9(a) of the NLRA, 29 U.S.C. Sec. 159(a), ² certified the Union as the exclusive bargaining representative of the Company's employees (reported in 269 N.L.R.B. 926 (1984)) (App. 106-107). Chairman Dotson dissented with respect to the sustaining of the challenge to Smith's ballot. Id.

Following certification, the Company refused the Union's request to bargain and to provide the Union with information and was charged by the Regional Director with having committed an unfair labor practice under Sec. 8(a)(1) and (5) of the NLRA. ³ The Company admitted its refusal to bargain and to provide information, but contested the validity of the Board's certification of the Union. On September 14, 1984, the Board granted its General Counsel's motion for summary judgment and concluded that all issues raised by the Company in the unfair labor practice proceeding had been or could have been raised in the representation proceeding (272 N.L.R.B. No. 46 (1985)) (App. 135, 137). The Board ordered the Company to bargain with the Union upon request and to provide the Union with previously requested information. The Board seeks enforcement of its order pursuant to Sec. 10(e) of the NLRA, 29 U.S.C. Sec. 160(e).

The Company challenges the Union certification and thereby denies any violation of Secs. 8(a)(1) and (5). It opposes enforcement on the grounds that 1) the Board erroneously ignored the parties' pre-election stipulation and applied Board election policies, 2) both employees Smith and Corrigan were in fact eligible to vote under the relevant Board election policies, 3) neither employee Smith nor Corrigan could be determined ineligible to vote without an evidentiary hearing, and 4) the Board erroneously failed to review all of the evidence relied upon by the Regional Director.

II

The sole issue in this case is the validity of the Board's decision to sustain challenges to Smith's and Corrigan's ballots and thereby certify the Union. If the Board's certification was correct, the Company's admitted refusal to bargain violated Sec. 8(a)(1) and (5) of the NLRA. We would then be required to enforce the Board's September 14, 1984, Order. See NLRB v. Tom Wood Datsun, Inc., 767 F.2d 358, 353, No. 84-2264, slip op. at 3 (7th Cir. July 11, 1985). Furthermore, if this Court upholds the Board's ruling with regard to either of the two contested ballot challenges, we also must enforce since it will then be mathematically impossible for the Company to overturn the results of the election (the vote of uncontested ballots was 4 to 2 in favor of Union representation). See NLRB v. Hoerner-Waldorf Corp., 525 F.2d 805, 807 n. 2 (8th Cir.1975).

The Company's first contention is that the Board ignored the parties' pre-election stipulation in applying Board election policies to sustain the ballot challenges in this case. The "Stipulation for Certification Upon Consent Election," entered into and approved by the Regional Director on June 8, 1983, described the voting unit as follows:

All employees employed by the Employer at its Bethalto, Illinois facility, EXCLUDING station manager, office clerical and professional employees, guards and supervisors as defined in the Act (App. 6).

The Company argues that since it is uncontested that both Smith and Corrigan were hired as of the eligibility date, they are both "employees" within the ordinary meaning of that term and must be considered eligible to vote in order to effectuate the parties' unambiguous intent.

It is well settled that generally pre-election agreements are binding upon the Board. Once it has approved the agreement, the Board's role with respect to determining the bargaining unit and voter eligibility "is limited to construing the agreement according to contract principles" consistent with the intent of the parties. Tidewater Oil Co. v. NLRB, 358 F.2d 363, 365 (2d Cir.1966). See NLRB v. Midwest Television, Inc., 370 F.2d 287, 288-289 (7th Cir.1966); NLRB v. J.J. Collins' Sons, Inc., 332 F.2d 523, 525 (7th Cir.1964). Where the pre-election stipulation is ambiguous as to whether the employee whose ballot is challenged was included within the bargaining unit, it is clear that the stipulation is to be construed consistently with established or crystallized Board policies, see NLRB v. New England Lithographic Co., 589 F.2d 29, 38 (1st Cir.1978); Knapp-Sherrill Co. v. NLRB, 488 F.2d 655, 659 (5th Cir.1974), certiorari denied, 419 U.S. 829, 95 S.Ct. 50, 42 L.Ed.2d 53; NLRB v. Joclin Manufacturing Co., 314 F.2d 627, 634-35 (2d Cir.1963), and with the Board's ordinary "community of interest" ⁴ standard for determining the bargaining unit in the absence of a pre-election agreement. See NLRB v. Neuro Affiliates Co., 702 F.2d 184, 188 (9th Cir.1983); Knapp-Sherrill, 488 F.2d at 659; NLRB v. Boston Beef Co., 652 F.2d 223, 226 (1st Cir.1981); NLRB v. Mercy College, 536 F.2d 544, 548 n. 11 (2d Cir.1976); NLRB v. Midwest Television, Inc., 370 F.2d at 289.

Even if the pre-election stipulation clearly indicates which employees are eligible to vote, it has been held on numerous occasions that the inclusion or exclusion of employees in a unit per a pre-election stipulation may not contravene or violate the NLRA or established or settled Board policy. See Neuro Affiliates, 702 F.2d at 188; NLRB v. Mercy Hospitals, 589 F.2d 968, 972 (9th Cir.1978), certiorari denied, 440 U.S. 910, 99 S.Ct. 1221, 59 L.Ed.2d 458; Knapp-Sherrill, 488 F.2d at 659; J. Olson Machine Co., 196 N.L.R.B. 598 (1972); The Tribune Company, 190 N.L.R.B. 398, 399 (1971). The Board is prohibited, however, from applying the "community of interest" standard to change a result mandated by an unambiguous pre-election stipulation which does not contravene the Act or settled Board policy. See Midwest Television, 370 F.2d at 289; Tidewater, 358 F.2d at 366; J.J. Collins' Sons, 332 F.2d at 525. Courts have not viewed the multi-faceted inquiry under the "community of interest" standard as constituting an established Board policy. Tidewater, 358 F.2d at 366.

Application of the above rules to the present situation indicates that the Board was entirely correct in applying Board policies in its decision to sustain the Corrigan ballot challenge despite the existence of a pre-election stipulation. ⁵ The Board sustained the Corrigan ballot challenge because it found that Corrigan was a "casual employee." Whether we classify the Board policy which excludes from a bargaining unit employees who work on a sporadic and intermittent basis, i.e., "casual employees," as a settled, established or crystallized Board policy, see St. Elizabeth Community Hospital v. NLRB, 708 F.2d 1436, 1444 (9th Cir.1983); Justak Brothers & Co., Inc. v. NLRB, 664 F.2d 1074, 1080 (7th Cir.1981); NLRB v. Alamo Express, Inc., 430 F.2d 1032, 1035 (5th Cir.1970), certiorari denied, 400 U.S. 1021, 91 S.Ct. 584, 27 L.Ed.2d 633 (1971); Myers Brothers, Inc., 218 N.L.R.B. 441 (1975), or merely as part of the "community of interest" standard, see NLRB v. Boston Beef Co., 652 F.2d at 226-27, it was proper for the Board to apply the rule to determine...