N.L.R.B. v. Asbury Graphite Mills, Inc., No. 87-3145

CourtU.S. Court of Appeals — Third Circuit
Writing for the CourtBefore GIBBONS, Chief Judge, MANSMANN and ALDISERT; ALDISERT
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)
Decision Date29 September 1987
Docket NumberNo. 87-3185,Nos. 87-3145,No. 87-3145,87-3185

Page 40

832 F.2d 40
126 L.R.R.M. (BNA) 2900, 107 Lab.Cas. P 10,237
NATIONAL LABOR RELATIONS BOARD, Petitioner, No. 87-3145,
v.
The ASBURY GRAPHITE MILLS, INC., Respondent.
NATIONAL LABOR RELATIONS BOARD, Respondent,
v.
The ASBURY GRAPHITE MILLS, INC., Petitioner, No. 87-3185.
Nos. 87-3145, 87-3185.
United States Court of Appeals,
Third Circuit.
Submitted under Third Circuit Rule 12(6)
Sept. 29, 1987.
Decided Oct. 30, 1987.

Page 41

Edward H. Feege, Duane, Morris & Heckscher, Allentown, Pa., for The Asbury Graphite Mills, Inc.

Linda Dreeben, Joseph H. Bornong, N.L.R.B., Washington, D.C., for N.L.R.B.

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

Page 42

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...

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11 practice notes
  • Tabas v. Tabas, Nos. 92-1495
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 2, 1995
    ...the only one. We decline to adopt a verbal formula for determining when unlawful activity is sufficiently extensive to be "continuous." 832 F.2d at 40. I would explicitly hold, therefore, that although the duration of the predicate acts does not without more show continuity, if the acts occ......
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    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
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    ...and concluded that a case-by-case analysis should be undertaken to determine "the extent of the racketeering activity." Barticheck, 832 F.2d at 40. We indicated that a determination of whether the facts alleged comprise a RICO pattern with the requisite "continuity plus relationship," Sedim......
  • Rose v. Bartle, Civ. A. No. 86-6255.
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    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 22, 1988
    ...Barticheck, the court concluded that a case-by-case "inquiry into the extent of the racketeering activity" must be conducted. Barticheck, 832 F.2d at 40. A determination of whether the facts alleged constitute a pattern turns on, but is not limited to, the following factors: (1) the number ......
  • Forum Publications, Inc. v. PT Publishers, Inc., Civ. A. No. 88-5926.
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    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 27, 1988
    ...`the extent of the racketeering activity.'" Saporito v. Combustion Engineering Inc., 843 F.2d 666, 676 (3d Cir.1988), citing Barticheck, 832 F.2d at 40. Furthermore, the Barticheck indicated that a determination of whether the facts alleged comprise a RICO pattern with the requisite `contin......
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11 cases
  • Tabas v. Tabas, Nos. 92-1495
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 2, 1995
    ...the only one. We decline to adopt a verbal formula for determining when unlawful activity is sufficiently extensive to be "continuous." 832 F.2d at 40. I would explicitly hold, therefore, that although the duration of the predicate acts does not without more show continuity, if the acts occ......
  • Saporito v. Combustion Engineering Inc., No. 87-5144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 29, 1988
    ...and concluded that a case-by-case analysis should be undertaken to determine "the extent of the racketeering activity." Barticheck, 832 F.2d at 40. We indicated that a determination of whether the facts alleged comprise a RICO pattern with the requisite "continuity plus relationship," Sedim......
  • Rose v. Bartle, Civ. A. No. 86-6255.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 22, 1988
    ...Barticheck, the court concluded that a case-by-case "inquiry into the extent of the racketeering activity" must be conducted. Barticheck, 832 F.2d at 40. A determination of whether the facts alleged constitute a pattern turns on, but is not limited to, the following factors: (1) the number ......
  • Forum Publications, Inc. v. PT Publishers, Inc., Civ. A. No. 88-5926.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 27, 1988
    ...`the extent of the racketeering activity.'" Saporito v. Combustion Engineering Inc., 843 F.2d 666, 676 (3d Cir.1988), citing Barticheck, 832 F.2d at 40. Furthermore, the Barticheck indicated that a determination of whether the facts alleged comprise a RICO pattern with the requisite `contin......
  • Request a trial to view additional results

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