NLRB v. Overland Hauling, Inc., 71-1459.
| Decision Date | 12 June 1972 |
| Docket Number | No. 71-1459.,71-1459. |
| Citation | 461 F.2d 944 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OVERLAND HAULING, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Arnold Ordman, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Washington, D. C., Harold A. Boire, Director, Region 12, N. L. R. B., Tampa, Fla., Elliott Moore, Atty. N. L. R. B., Washington, D. C., for petitioner.
Frank E. Hamilton, Jr., Tampa, Fla., for intervenor.
Granville M. Alley, Jr., Tampa, Fla., for respondent.
Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.
The National Labor Relations Board seeks to enforce its order issued against respondent, Overland Hauling, Inc., on December 14, 1970, to remedy a refusal by the Company to recognize and bargain with Teamsters Local No. 385. Overland takes the position that the Union was improperly certified by the Board and that, therefore, its refusal to bargain was justified. The case is before us in the context of an unfair labor practice charge because such a proceeding is the only method by which an employer can obtain court review of the Board's certification of a union. N.L.R.B. v. Genesco, 406 F.2d 393 (5th Cir. 1969).
An election by Overland employees of the designated unit was held on August 8, 1969. The Union won by a 51 to 49 vote. On August 18, 1969, Overland timely filed objections to conduct allegedly affecting the result of the election. After conducting an administrative investigation into the allegations raised in the objections, the Regional Director issued a decision on October 16, 1969, finding that the objections were without merit and certifying the Union as the bargaining representative. On November 1, 1969, Overland filed a request for review of the Regional Director's decision and certification. That request was denied by the Board on November 18, 1969. Subsequently, Overland refused to bargain with the Union.
The Union filed an unfair labor practice charge on February 9, 1970. Thereafter, the Regional Director issued a complaint against Overland alleging violations of §§ 8(a)(1) and (5) of the Act. In its answer to the complaint Overland denied the validity of the certification and the commission of unfair labor practices. Simultaneously, Overland filed a motion to dismiss or to stay the unfair labor practice proceeding and to reopen the representation proceeding. This motion was accompanied by affidavits allegedly containing newly discovered evidence in support of Overland's original objections to the election.
In ruling on the Board's motion for summary judgment, the trial examiner found that the contents of the affidavits were not of such a nature as would probably change the outcome of the election, and that in any event it did not appear that the evidence had been previously unavailable. The motion for summary judgment was granted. On review the Board affirmed the trial examiner's findings, affirmed the Regional Director's findings in the representation case and issued its cease and desist order to Overland.
Overland contends that the order should not be enforced because (1) the unit determination was clearly erroneous, (2) the Regional Director erred in refusing to issue investigative subpoenas in the post-election proceedings precipitated by the objections, and (3) the Regional Director erred in not holding a requested hearing on the objections.
We affirm the Board's determination as to the appropriate bargaining unit, but remand the case for a hearing on the objections raised by Overland.
Overland challenges the Board's unit determination on the two-fold basis that (1) multiple owner-drivers with helpers should not have been classified as supervisors, and (2) mechanics should not have been excluded from the unit.
Under § 9(b) of the Act, the Board is given power to decide in each case the unit appropriate for collective bargaining. The Board is given wide latitude in making such determination because the Act does not specify absolutely the constitution of a unit which is appropriate for bargaining. Such decision is relegated to the sound discretion of the authoritative agency. Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). On judicial review, the Board's determination will not be overturned lightly. N.L.R.B. v. Schill Steel Products, 340 F.2d 568 (5th Cir. 1965). Thus, our review of a Board determination of an appropriate bargaining unit is narrowly circumscribed. Texas Pipe Line Co. v. N.L.R.B., 296 F.2d 208 (5th Cir. 1961). The Board's determination must be arbitrary or capricious to be set aside. Spartans Industries, Inc. v. N.L.R.B., 406 F.2d 1002 (5th Cir. 1969).
The multiple owner-drivers lease their trucks to Overland and furnish helpers who drive the leased trucks other than the ones driven by the owner-driver. Overland admits in its brief that the helpers are recommended to it by the owner-drivers. This alone is enough to warrant the Board's classification under the Act.1
The mechanics need not be included in a unit of drivers in order to secure an appropriate unit. Groendyke Transport, Inc. v. N.L.R.B., 438 F.2d 981 (5th Cir. 1971); N.L.R.B. v. Tallahassee Coca-Cola Bottling Co., Inc., 409 F.2d 201 (5th Cir. 1969). Although there are no absolute "right" units, the Board's determination will not be disturbed unless the choice has been made in a manner violative of the statute. N.L.R.B. v. Fidelity Maintenance and Construction Co., 424 F.2d 707 (5th Cir. 1970). We find no abuse of discretion or violation of the statute in the Board's exclusion of the mechanics from the unit.
The Union won the election by the slimmest of margins—51 to 49. Overland timely filed objections based on Board and Union conduct, which, if true, vitiated the laboratory atmosphere in which representative elections should be held. Although Overland requested a hearing on its objections, the Regional Director denied the request after making an independent investigation into the charges.
Under the Act there is no specific requirement that the Board conduct post-election hearings. N.L.R.B. v. O.K. Van Storage, Inc., 297 F.2d 74 (5th Cir. 1961). The law is clear, however, that the Board must grant a hearing if it appears that the objections raise "substantial and material factual issues." Fones v. N.L.R.B., 431 F.2d 417 (5th Cir. 1970). To satisfy the requirement of "substantial and material factual issues," the challenging party must make a proffer of evidence which prima facie would warrant setting the election aside. N.L.R.B. v. Martin Building Material Co., 431 F.2d 1246 (5th Cir. 1970); Frito-Lay v. N.L.R.B., 422 F.2d 169 (5th Cir. 1970).
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