Pinetree Transp. Co. v. N.L.R.B.

• Decision Date: 17 August 1982
• Docket Number: 81-7427,Nos. 81-7333,s. 81-7333
• Citation: 686 F.2d 740
• Parties: 111 L.R.R.M. (BNA) 2207, 95 Lab.Cas. P 13,751 PINETREE TRANSPORTATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. PINETREE TRANSPORTATION COMPANY, Cross-Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 740

686 F.2d 740

111 L.R.R.M. (BNA) 2207, 95 Lab.Cas. P 13,751

PINETREE TRANSPORTATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. PINETREE TRANSPORTATION COMPANY, Cross-Respondent.

Nos. 81-7333, 81-7427.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 1, 1982.

Decided Aug. 17, 1982.

Stanley E. Tobin, Hill, Farrer & Burrill, Los Angeles, Cal., argued, for petitioner; Fred T. Ashley, Hill, Farrer & Burrill, Los Angeles, Cal., on brief.

Elaine Patrick, N. L. R. B., Washington, D. C., argued, for respondent; William Wachter, N. L. R. B., Washington, D. C., on brief.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before WALLACE, NELSON and CANBY, Circuit Judges.

WALLACE, Circuit Judge:

On April 2, 1981, the National Labor Relations Board (the Board) entered an order holding Pinetree Transportation Company (Pinetree) in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1) and (5), for its refusal to bargain with the Automotive Employees, Laundry Drivers and Helpers, Local 88, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). The Board ordered Pinetree to cease and desist from its violations, to post appropriate notices, and to recognize and bargain with the Union upon request. Pinetree filed this petition for review under 29 U.S.C. § 160(f); the Board cross-applied for enforcement pursuant to 29 U.S.C. § 160(e).

Although Pinetree's petition formally seeks review of the unfair labor practice proceedings, Pinetree does not dispute the fact that it has refused to bargain with the Union. Pinetree claims that the Board improperly set aside a representation election in which the Union lost, and then ordered a second election in which the Union won. As a result, the Union was certified as the bargaining unit of Pinetree's mechanical and maintenance employees. In order to gain judicial review of the prior representation proceedings, Pinetree was compelled to expose itself to unfair labor practice charges. The validity of the unfair labor practice charges depends on the legality of the Union's certification. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 152, 61 S.Ct. 908, 912, 85 L.Ed. 1251 (1941). We deny enforcement and remand for an evidentiary hearing.

I

On April 30, 1979, the Union filed a representation petition as part of its effort to unionize Pinetree's mechanical and maintenance employees at its facility in Gardena, California. On June 14, 1979, the Regional Director of the Board issued a Decision and Direction of Election granting the Union's petition, but expanding the bargaining unit to include mechanical and maintenance employees at Pinetree's facilities in Long Beach and Santa Ana, California. A secret ballot election was conducted at Pinetree's three facilities on July 18, 1979. A tally of the ballots cast in that election showed that the Union had lost by a vote of 25 to 17.

The following day, the Union filed five objections to the conduct of the election, one being that Pinetree failed to post the Board's official notices of the election at the Gardena facility "in a conspicuous place where the employees could easily identify and read said notices." The Union later withdrew its other four objections.

Pinetree challenged the Union's objection to the notice posting in a written response to the Regional Director. Included with this written response was the declaration of David Lawson, the supervisor of Pinetree's Gardena facility. Pinetree's response and Lawson's declaration set forth the following facts with respect to the election notice objection: the election notice in question was posted in the upper right-hand corner of the bulletin board regularly used to convey information to employees, which is immediately adjacent to the time clock used by the employees at least four times daily; the notice was posted approximately seven days prior to the election; the top of the notice was approximately nine feet above the floor and the bottom of the notice was approximately eight feet above the floor; ¹ the notice was posted so as not to be blocked from view by people standing in front of or around the bulletin board or by vehicles frequently parked around it; Lawson himself, who was five feet, ten inches in height and had ordinary eyesight, could easily read every word on the notice; and during the week preceding the election, Lawson observed more than three-fourths of the employees at the Gardena facility reading the notice. The Regional Director also knew that twenty-one of the twenty-three eligible voters at the Gardena facility voted in the election.

On September 12, 1979, the Regional Director issued a Report on Objections in which he stated: "From an examination of a notice posted with its top 102 (inches) above the floor, I conclude that placement of the notice at this height makes the entire notice unreadable, or at the least, causes employees of average height considerable difficulty in reading the entire notice and, thus, discourages employees from reading the entire notice." He concluded that posting the notice at that height denied employees access to information vital to the conduct of the election and recommended that the Union's objection be sustained and that the election be set aside.

On October 8, 1979, Pinetree filed exceptions to the Regional Director's Report on Objections with the Board, contending that the Regional Director erred when he found that the Gardena notice had been improperly posted. Attached to Pinetree's exceptions was a copy of the Lawson declaration which had been submitted to the Regional Director. In neither its original response filed with the Regional Director nor its exceptions to the Regional Director's Report on Objections which were filed with the Board, did Pinetree assert that a hearing should be held by the Regional Director.

On November 29, 1979, the Board adopted the Regional Director's findings and recommendations and directed that a second election be held. On January 9, 1980, the second election was held and resulted in a vote of twenty-six in favor of the union and nineteen against, with no challenged ballots. A week later, the Board certified the Union as the exclusive bargaining representative for the unit.

On February 29, 1980, the Union requested that Pinetree bargain with it, but the company refused. On April 11, the Union filed an unfair labor practice charge with the Board, based on Pinetree's refusal to bargain. By a letter dated May 1, Pinetree requested a hearing before an administrative law judge. The Regional Director thereafter issued a complaint alleging refusal to bargain in violation of section 8(a)(5) and (1) of the Act. The General Counsel filed a motion for summary judgment claiming that Pinetree was attempting to relitigate issues which were or could have been raised in the underlying representation proceedings. Pinetree opposed this motion contending, among other things, that a hearing should have been held. The Board granted the motion for summary judgment, observing that the issues raised "were or could have been litigated in the prior representation proceeding" and that there had been no offer "to adduce at a hearing any newly discovered or previously unavailable evidence."

II

This petition for review and cross-application for enforcement raise the question whether a party in a representation proceeding waives its right to an evidentiary hearing if it fails to assert its right to such a hearing in its objections or fails otherwise to make a timely request for such a hearing to the Board or Regional Director. In the present case, Pinetree made no such assertion or request at any stage of the representation proceedings, but rather first claimed denial of its right to such a hearing in the unfair labor practice proceedings that followed. The Board argues that Pinetree's failure to seek a hearing in the representation proceedings constitutes a waiver of this objection for all purposes, including judicial review. The Board erroneously asserts that support for this position is found in decisions of this and other circuits. ² Pinetree mistakenly argues that our decisions in NLRB v. Belcor, Inc., 652 F.2d 856 (9th Cir. 1981), and Vari-tronics Co. v. NLRB, 589 F.2d 991 (9th Cir. 1979), indicate that the objections it submitted to the Regional Director and Board should be deemed a request for a hearing. In neither Belcor nor Vari-tronics, however, is there any indication that the parties seeking an evidentiary hearing failed to request such a hearing in their objections before the Regional Director or the Board. In both cases the question was whether the factual issues raised by the parties were so substantial or material that the Board should have ordered a hearing. NLRB v. Belcor, Inc., supra, 652 F.2d at 859; Vari-tronics Co. v. NLRB, supra, 589 F.2d at 993. From our reading of the cases cited by both parties, it is clear that we have not yet directly confronted the question before us.

Among the cases cited to us and those we have located in our independent research, the only one directly on point is the Sixth Circuit decision in NLRB v. Medical Ancillary Services, Inc., 478 F.2d 96 (6th Cir. 1973) (Medical Ancillary). There the court reasoned that no formal request for a hearing is necessary when a party's objections meet the criteria for a hearing as required under the Board's regulations. Although we are not bound by another circuit's decision, Gunther v. County of Washington, 623 F.2d 1303, 1319 (9th Cir. 1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), we look to their reasoning for guidance. Id. We think it prudential "to maintain uniformity in the law among the circuits, wherever reasoned analysis will...