N.L.R.B. v. Asbury Graphite Mills, Inc.

Decision Date29 September 1987
Docket NumberNo. 87-3185,Nos. 87-3145,No. 87-3145,87-3185,87-3145,s. 87-3145
Citation832 F.2d 40
Parties126 L.R.R.M. (BNA) 2900, 107 Lab.Cas. P 10,237 NATIONAL LABOR RELATIONS BOARD, Petitioner,, v. The ASBURY GRAPHITE MILLS, INC., Respondent. NATIONAL LABOR RELATIONS BOARD, Respondent, v. The ASBURY GRAPHITE MILLS, INC., Petitioner, . Submitted under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Before GIBBONS, Chief Judge, MANSMANN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

In this application for enforcement of a National Labor Relations Board order and petition for review of that order, we must decide if the Board properly determined the bargaining obligation of Asbury Graphite Mills, Inc. (Asbury). As a predicate to this determination, we must decide if the Board properly concluded that, at the time of the Union's election, the employees of the company constituted a substantial and representative complement of the company's projected future work force. If so, an immediate election of a bargaining unit was in order. The Board found that there was a substantial and representative complement of employees sufficient to elect a bargaining unit. The company disputes that determination. We will grant the application for enforcement of the order and deny the petition for review.

I.

Asbury is engaged in the production and sale of graphite and other carbon-based materials. In June 1984, Asbury bought a manufacturing plant in Kittanning, Pennsylvania. The plant required extensive renovation before production commenced in September 1985. The company hired its first employees in August 1984, and by May 1985, had hired twelve employees for both construction and production work. On March 4, 1986, the Teamsters Union filed a representation petition with the Board seeking certification of the company's production and maintenance employees as a collective bargaining unit. By March 25, 1986, the date of the representation hearing, Asbury had hired an additional laborer for a total of thirteen employees. These employees fell into four job classifications: laborer, utility employee, electrical/maintenance employee, and laboratory employee.

After the representation hearing, the Regional Director for the Board issued a decision and direction of election in which he found that the company's work force as of the time of the hearing was a representative and substantial portion of its predicted work force. He further determined that the employees performed tasks typical of the production and maintenance functions that the company expected them to perform in the future. The Board denied Asbury's request for review and conducted an election on May 23, 1986, at which time seven employees voted for the Union and six against.

On July 10, 1986, the Union filed an unfair labor practice charge with the Board alleging that Asbury had violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158(a)(1), (5), by refusing to recognize and bargain with the Union. On December 15, 1986, the Board issued a decision and order finding Asbury in violation of the NLRA. We must decide whether, under all the evidence and the ruling case law, the Board's order should be enforced. We are satisfied that there is substantial evidence in the record to support the Board's conclusion.

II.

The parties are at odds over the proper standard of review. The NLRB contends that we must enforce the Board's bargaining order unless we find that the Board abused its discretion; the company claims that we should apply the substantial evidence rule. We need not embark upon a prolonged discussion of the appropriate standard of review because, first, the company is not challenging the Board's "substantial and representative complement" rule, but contests only the Board's application of the rule to the facts at hand; and second, the Supreme Court has recently supplied us with a concise statement of the standard we should apply. In a case involving obligations of a successor employer where, as here, the company challenged the Board's application of the substantial and representative complement rule, the Court stated:

The Board, of course, is given considerable authority to interpret the provisions of the NLRA. See NLRB v. Financial Institution Employees, 475 U.S. 192, ----, 106 S.Ct. 1007, 1013, 89 L.Ed.2d 151 (1986). If the Board adopts a rule that is rational and consistent with the Act, ... then the rule is entitled to deference from the courts. Moreover, if the Board's application of such a rational rule is supported by substantial evidence on the record, courts should enforce the Board's order.

Fall River Dyeing & Finishing Corp. v. NLRB, --- U.S. ----, ----, 107 S.Ct. 2225, 2235, 96 L.Ed.2d 22 (1987). We first examine the rule to be applied in this case.

III.

The substantial and representative complement rule is applied in the context of an initial representation election when, faced with a fluctuating work force, the Board must determine the appropriate time for an election. The Board will hold an election if the present employee complement is both substantial and representative of the employer's projected future work force. See, e.g., NLRB v. Engineers Constructors, Inc., 756 F.2d 464 (6th Cir.1985); Clement-Blythe Cos., 77 L.R.R.M. 2373 (4th Cir.1971); enf'g 182 N.L.R.B. 502 (1970). The rule represents an effort to balance "the objective of insuring maximum employee participation in the selection of a bargaining agent against the goal of permitting employees to be...

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