New England Lumber, Div. of Diamond Intern. Corp. v. N.L.R.B., No. 80-1619

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBREYER
Citation646 F.2d 1
Parties107 L.R.R.M. (BNA) 2165, 91 Lab.Cas. P 12,711 NEW ENGLAND LUMBER DIVISION OF DIAMOND INTERNATIONAL CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard
Decision Date02 March 1981
Docket NumberNo. 80-1619

Page 1

646 F.2d 1
107 L.R.R.M. (BNA) 2165, 91 Lab.Cas. P 12,711
NEW ENGLAND LUMBER DIVISION OF DIAMOND INTERNATIONAL
CORPORATION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 80-1619.
United States Court of Appeals,
First Circuit.
Heard March 2, 1981.
Decided April 21, 1981.
Rehearing and Rehearing En Banc Denied May 18, 1981.

Malcolm E. Morrell, Jr., Bangor, Maine, with whom Clare Hudson Payne, and Eaton, Peabody, Bradford & Veague, Bangor, Maine, were on brief, for petitioner.

Susan T. Papadopoulos, Atty., with whom William A. Lubbers, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Acting Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, William Wachter and Sandra Shands Elligers, Washington, D. C., Attys., were on brief, for respondent.

BREYER, Circuit Judge.

This case came before the court upon the petition of the New England Lumber Division of Diamond International Corporation ("Diamond") for review of an order of the National Labor Relations Board and the Board's cross-application for enforcement. The order requires Diamond to bargain collectively with the United Paper Workers International Union and its Local No. 80, AFL-CIO (the "Union"). Diamond based its refusal to bargain upon its claim that the Union was not validly chosen to represent its employees because the Union had an improper observer present at the representation election. We reject Diamond's claim and enforce the Board's order.

The dispute in the case concerns an observer designated by the Union at a representation election held in accordance with

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an agreement or stipulation between the Union and the company. The election was held on October 25, 1979, at the stud mill operated by Diamond's New England Lumber Division. From the morning of the election, Diamond has consistently urged that the designation of the Union's president, Phillip Veilleux, an employee of Diamond's Penobscot Division, to act as the Union observer at the election, violated the specific provisions of the "Stipulation for Certification Upon Consent Election". It adds that a rerun of the election (which the Union won) must be ordered. In response to petitioner's objections, the Regional Director of the NLRB conducted an administrative investigation, and recommended that the objections be overruled. The Board adopted the Regional Director's Report.

Diamond's argument is based on paragraph 4 of the printed form stipulation, 1 prepared by the NLRB, entitled "United States of America, National Labor Relations Board, Stipulation for Certification Upon Consent Election". It states:

"4. OBSERVERS. Each party hereto will be allowed to station an equal number of authorized observers, selected from among the non-supervisory employees of the Employer, at the polling places during the election to assist in its conduct, to challenge the eligibility of voters, and to verify the tally." (Emphasis added.)

Diamond argues that Veilleux is not a nonsupervisory employee of the "employer" within the meaning of the stipulation because Veilleux is a nonsupervisory employee of the Penobscot Division of Diamond, not its New England Lumber Division. Diamond argues that the Penobscot Division and the New England Lumber Division are autonomous entities operating within a large multinational corporation, and that it is the Lumber Division, not Diamond as a whole, which is the "employer" within the terms of the stipulation.

The facts related to the stipulation's meaning are as follows: First, the stipulation does not explicitly state whether...

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8 practice notes
  • Nightingale Oil Co. v. N.L.R.B., No. 89-1886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961); New England Lumber Division of Diamond v. NLRB, 646 F.2d 1, 3 (1st As the Supreme Court repeatedly has emphasized, "[t]he formulation of procedures was basically ... left within the discretion of the......
  • N.L.R.B. v. Black Bull Carting Inc., Nos. 1890
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 5, 1994
    ...It is not aimed at stopping observers who are union officials." New England Lumber Division of Diamond International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir.1981) (emphasis in As a general matter, the conduct of a representation election is a purely administrative function with which the cour......
  • N.L.R.B. v. Labor Services, Inc., No. 83-1207
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 7, 1983
    ...heavy burden on a party to show that this discretion has been abused. New England Lumber Division of Diamond International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir.1981); Fall River Savings Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.1981). Nevertheless, having in mind the Board's own oft-articulat......
  • N.L.R.B. v. Boston Beef Co., Inc., No. 80-1836
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 9, 1981
    ...488 F.2d 655, 659-60 (5th Cir.), cert. denied, 419 U.S. 829, 95 S.Ct. 50, 42 L.Ed.2d 53 (1974); see New England Lumber v. N.L.R.B., 646 F.2d 1, 3 (1st Cir. 1981). Accordingly, we find no error in the Board's use of the community of interest test in determining whether Westerberg should have......
  • Request a trial to view additional results
8 cases
  • Nightingale Oil Co. v. N.L.R.B., No. 89-1886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961); New England Lumber Division of Diamond v. NLRB, 646 F.2d 1, 3 (1st As the Supreme Court repeatedly has emphasized, "[t]he formulation of procedures was basically ... left within the discretion of the......
  • N.L.R.B. v. Black Bull Carting Inc., Nos. 1890
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 5, 1994
    ...It is not aimed at stopping observers who are union officials." New England Lumber Division of Diamond International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir.1981) (emphasis in As a general matter, the conduct of a representation election is a purely administrative function with which the cour......
  • N.L.R.B. v. Labor Services, Inc., No. 83-1207
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 7, 1983
    ...heavy burden on a party to show that this discretion has been abused. New England Lumber Division of Diamond International Corp. v. NLRB, 646 F.2d 1, 3 (1st Cir.1981); Fall River Savings Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.1981). Nevertheless, having in mind the Board's own oft-articulat......
  • N.L.R.B. v. Boston Beef Co., Inc., No. 80-1836
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 9, 1981
    ...488 F.2d 655, 659-60 (5th Cir.), cert. denied, 419 U.S. 829, 95 S.Ct. 50, 42 L.Ed.2d 53 (1974); see New England Lumber v. N.L.R.B., 646 F.2d 1, 3 (1st Cir. 1981). Accordingly, we find no error in the Board's use of the community of interest test in determining whether Westerberg should have......
  • Request a trial to view additional results

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