Pannier Corp., Graphics Div. v. N.L.R.B., s. 96-5626
| Decision Date | 29 July 1997 |
| Docket Number | 96-5730,Nos. 96-5626,s. 96-5626 |
| Citation | 120 F.3d 603 |
| Parties | 155 L.R.R.M. (BNA) 2911 PANNIER CORPORATION, GRAPHICS DIVISION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Martin J. Saunders (argued and briefed), Susan Brahm Gunn (briefed), Jackson, Lewis, Schnitzler & Krupman, Pittsburgh, Pennsylvania, for Petitioner/Cross-Respondent.
Fred L. Cornnell, Jr. (argued and briefed), National Labor Relations Board, Office of the General Counsel, Aileen A. Armstrong (briefed), Deputy Associate General Counsel, Frederick C. Havard, National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.
Before: KENNEDY, GUY, and MOORE, Circuit Judges.
Petitioner, Pannier Corporation, Graphics Division, asks this court to review an order of respondent, the National Labor Relations Board (Board). Respondent cross-petitions for enforcement of the order. The Board found that petitioner had committed unfair labor practices in violation of § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5), by refusing to bargain with the newly-elected union representative, whose election had been Board-certified. Petitioner argues that no violation has been shown, since the union was elected after the Board improperly set aside the first election, in which the union had been defeated, due to petitioner's failure to comply with the Board's mandatory regulation requiring that notice of an election be posted three full days prior to the date of the election.
Based on our review of the record and the arguments presented on appeal, we conclude that no error has been shown. Therefore, we deny petitioner's request for review and grant the Board's request for enforcement of its order.
Petitioner, Pannier Corporation, Graphics Division (the Company or Pannier), is a Pennsylvania corporation that manufactures fiberglass signs. The Company has an office and facility in Gibsonia, Pennsylvania, and transacts business within the jurisdiction of this court.
On November 8, 1994, District Lodge 83 of the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), filed a petition with the Board seeking an election to represent the Company's production and maintenance employees. That same day, the Board's regional director served Pannier with a copy of the petition. In forwarding it, the Board also included a copy of the Board's rule regarding the posting of notices of election, 29 C.F.R. § 103.20. The rule reads as follows:
(a) Employers shall post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election. In elections involving mail ballots, the election shall be deemed to have commenced the date the ballots are deposited by the Regional Office in the mail. In all cases, the notices shall remain posted until the end of the election.
(b) The term working day shall mean an entire 24-hour period excluding Saturdays, Sundays, and Holidays.
(c) A party shall be estopped from objecting to nonposting of notices if it is responsible for the nonposting. An employer shall be conclusively deemed to have received copies of the election notice for posting unless it notifies the Regional Office at least 5 working days prior to the commencement of the election that it has not received copies of the election notice.
(d) Failure to post the election notices as required herein shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a).
Id. In its cover letter the Board stated "[p]lease carefully review and comply with the provisions of this rule if an election is scheduled in this matter."
On November 25, a stipulated election agreement was entered into setting forth an election date of December 16, 1994. Paragraph 3 of that agreement required the Company to post copies of the election notice "in conspicuous places ... at least three (3) full working days prior to 12:01 a.m. of the day of the election." The agreement further stated, tracking in substance the language of Rule 103.20(d), "[f]ailure to post the Election Notices as required shall be grounds for setting aside the election whenever proper and timely objections are filed."
Three days later, the Board's regional director forwarded a copy of the approved election agreement to Pannier. In the accompanying transmittal letter, the Board again reminded Pannier of the posting requirement and penalty for non-compliance. The Board, quoting from the posting rule, underscored that " 'An employer shall be conclusively deemed to have received copies of the election notice for posting unless it notifies the Regional Office at least 5 working days prior to the commencement of the election that it has not received copies of the election notice.' " It concluded, "[t]herefore, the Employer should notify the Regional Office if it has not received the Notices of Election by the fifth working day before the election."
On December 7, the Board mailed copies of the election notices for posting to Pannier. Another copy of Rule 103.20 was enclosed. The letter expressly informed Pannier that "[i]n order to comply with this rule [Rule 103.20], the Notice of Election ... must be posted by the Employer no later than 12:01 a.m., on Tuesday, December 13, 1994."
Pannier received the letter and its enclosures at approximately 4:30 p.m. of the afternoon of December 12. Prior to that time, Pannier had not informed the Board that it had not received the election notices.
Pannier posted the election notices at approximately 8:30 a.m. on December 13. The election was held on December 16. All eligible employees voted and the union was defeated 7-4, with 1 nondeterminative challenged ballot.
The Union subsequently filed six objections to the election alleging Pannier engaged "in a campaign of intimidation, coercion and deception among employees, thereby creating conditions under which the employees were unable to make a free and unfettered choice in the election." In its objections, the Union cited to Pannier's actions with respect to one employee who had been transferred to an office receptionist job one day after she became active on behalf of the Union. She was promised a permanent transfer if the Union was defeated. Thereafter the employee became a vocal opponent of the Union. In addition, it alleged that Pannier had pressured the father of one of its employees who also was employed by Pannier to get his son to withdraw from the organizing drive. Included among its objections was Pannier's failure to timely post the election notices.
In investigating these objections, the regional director found merit in the Union's objection regarding the posting violation. In light of this finding, he did not rule on the remaining objections. The Board adopted the regional director's recommendation that the election be set aside and a second election be held.
One of the members of the three-member panel, Chairman William Gould, dissented. He would have certified the results of the election based on Pannier's "substantial compliance" with the posting requirement. In support of his conclusion, he noted that the notices had been posted for 2 2/3 days prior to the election and all eligible voters had voted in the election.
A second election was held. This time the Union was elected by a 5 to 4 margin. Pannier did not file any objections to the election, and the Union was certified by the Board on August 16, 1995, as the employees' collective-bargaining representative. Despite its certification by the Board,...
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