Transportation Maintenance Serv. v. Nat'l Labor Relations Bd.
| Decision Date | 04 January 2002 |
| Docket Number | No. 00-1427,00-1427 |
| Citation | 275 F.3d 112 |
| Parties | (D.C. Cir. 2002) Transportation Maintenance Services, L.L.C., Petitioner v. National Labor Relations Board, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Larry P. Kaplan argued the cause for petitioner. With him on the briefs were Mark W. Weisman and Michelle M. Gaffney.
Richard A. Cohen, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Fred L. Cornnell, Supervisory Attorney.
Before: Ginsburg, Chief Judge, Henderson, Circuit Judge, and Williams, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge Ginsburg.
An employee of Transportation Maintenance Services petitioned the National Labor Relations Board to hold an election to decertify his union. The Board conducted an election but then impounded the ballots pending its review of the Union's claim that the election was time-barred. Before the Board had ruled upon that objection, the employee moved to withdraw his petition, claiming that he and his co-workers no longer wanted to decertify the Union. The Board granted that request and thus set the election to naught. Because the Board's decision is inconsistent with the preference for secret ballot elections expressed in the National Labor Relations Act, we grant TMS's petition for review and remand this matter for further proceedings before the Board.
Transportation Maintenance Services fuels and services trucks in Bridgeton, Missouri. The employees at its nearby sister company, C & M Services, Inc., are represented by two unions: the Machinists represent the skilled mechanics while Local 618, an affiliate of the Teamsters, represents the unskilled employees. In May, 1996 Local 618 charged TMS with unfair labor practices for, among other things, transferring unskilled workers from C & M to TMS in breach of the collective bargaining agreement between C & M and Local 618. The parties settled the matter in late 1996 with TMS agreeing to recognize Local 618 as the exclusive bargaining representative of its unskilled employees.
TMS and Local 618 bargained from January to early May, 1997 without reaching an agreement. Meanwhile, in late April one of the six TMS employees represented by Local 618, Charles Maher, petitioned for a decertification election. The Regional Director of the Board granted Maher's petition over the objection of the Union that an election was barred because the Union had not had a reasonable time to bargain. See Mar-Jac Poultry Co., Inc., 136 N.L.R.B. 785, 786 (1962). The Regional Director reasoned that, absent "affirmative evidence ... establishing that the recognition was extended in good faith, on the basis of a previously demonstrated majority, and at a time when only that union was actively engaged in organizing the unit employees," a settlement agreement by which an employer recognizes a union does not erect a so-called 'recognition bar' to a decertification election and that, in any event, a reasonable period of time had elapsed between recognition and the decertification petition. Regional Director's Decision, 14-RD-1568, at 4 n.3 (May 29, 1997).
The decertification election was scheduled for June 26, 1997. On June 25 the Board granted Local 618's request to review the Regional Director's decision authorizing the election. The election was held as scheduled, but the ballots were impounded pending the Board's review. More than a year had passed without the Board's having decided whether the election should have been held when, on July 15, 1998 Maher asked to withdraw his petition for election. The Board granted Maher's request with alacrity and almost another year later denied, by a vote of 3-2, TMS's motion to reconsider.
Local 618 then requested that TMS resume contract negotiations. When TMS refused based upon its disagreement with the Board's ruling, Local 618 charged TMS with an unfair labor practice. The Board ruled against TMS, Transp. Maint. Servs., 331 N.L.R.B. No. 140 (2000) (Decision), and the Company now petitions this court for review.
The Board granted Maher's request to withdraw his election petition on the ground that, as expressed in the Board's Casehandling Manual, its "general policy ... favor[s] the effectuation of a petitioner's genuine voluntary desire to [terminate] the proceeding." Transp. Maint. Servs., 328 N.L.R.B. No. 93, at 1 (1999) (quoting NLRB Casehandling Manual, Representation Proceedings (Part II), 11110). TMS contends that the Board erred in adhering to its policy in this case because here the employee's request came after the election had been held.
The National Labor Relations Act provides that "[i]f the Board finds ... that ... a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof." 29 U.S.C. 159(c)(1). As a matter of practice, however, the Board does not always certify the results of an election; if there is a challenge to the legitimacy of the election, then the Board impounds the ballots pending its resolution of the dispute. If the Board ultimately determines that the election is barred or otherwise invalid, then it simply discards the ballots.
In this case, however, the Board failed to certify the results even though it had not determined that the election was barred, as the Union claimed. That step is in some tension with the Act's directive that the Board "shall certify the results"...
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