U.S. Ecology, Inc. v. N.L.R.B.
| Decision Date | 03 October 1985 |
| Docket Number | 85-7259,Nos. 85-7154,s. 85-7154 |
| Citation | 772 F.2d 1478 |
| Parties | 120 L.R.R.M. (BNA) 2779, 103 Lab.Cas. P 11,614 US ECOLOGY, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner v. US ECOLOGY, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Markham Marshall, Preston, Thorgrimson, Ellis & Holman, Seattle, Wash., for petitioner.
Elinor Hadley Stillman, NLRB, Washington, D.C., for respondent.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before WRIGHT, PREGERSON, and ALARCON, Circuit Judges.
US Ecology, Inc. (hereinafter US Ecology) 1 seeks review of the National Labor Relations Board's (hereinafter NLRB or the Board) order, 274 NLRB No. 58 (1985), requiring that US Ecology bargain with the union certified by the Board. US Ecology appeals on three grounds: (1) material pre-election misrepresentations allegedly made by the union which may have prevented employees from casting voluntary votes; (2) the appearance of partiality potentially created by the Board agent's delegation to an observer of certain tasks relating to the conduct of the election; and (3) the potential for electioneering inherent in the Board agent's delegation to an observer of tasks involving conversation with the voters. The Board cross-petitions for enforcement of its order.
US Ecology is engaged in the business of chemical and radioactive waste disposal. On July 22, 1983, the Oil, Chemical, and Atomic Workers International Union, Local 1-369 AFL-CIO (the Union) filed a representation petition with the Board by which it sought certification as the bargaining representative of US Ecology's operators and radiation technicians and its maintenance, shipping and receiving, and laboratory employees. A "Stipulation for Certification Upon Consent Election" was executed by all parties on August 12, 1983.
The Board conducted an election on August 26, 1983. After the voting was completed, the tally of ballots showed nine votes for the Union and seven votes against it. US Ecology filed timely objections to the election, alleging that the election should be set aside because (1) the Union made material pre-election misrepresentations which prevented the employees from making a free choice in casting their vote, and (2) the Board agent's delegation of certain tasks to the Union observer during the election contributed to an appearance of partiality to the Union, and allowed electioneering during the election. Following an administrative investigation, a hearing was held on US Ecology's objections. The hearing officer issued a report overruling US Ecology's objections to the election. US Ecology filed exceptions to the report, but the Board adopted the hearing officer's findings and recommendations and directed that the Union be certified.
The Union requested that US Ecology bargain. US Ecology refused. The Union filed an unfair labor practice charge with the Board. The Regional Director issued a complaint alleging that US Ecology had refused to bargain with the Union in violation of the National Labor Relations Act (NLRA) Secs. 8(a)(1) and (5), 29 U.S.C. Secs. 158(a)(1) and (5). The Board granted General Counsel's motion for summary judgment on February 28, 1985.
An order of the NLRB is to be enforced if the Board correctly applied the law and if the Board's factual findings are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 463-65, 95 L.Ed. 456 (1951); NLRB v. Best Products Co., 765 F.2d 903, 906 (9th Cir.1985).
US Ecology first contends that the Union made material pre-election misrepresentations which prevented the employees from making a free choice in casting their vote. US Ecology claims that two material pre-election misrepresentations were made by the Union: (1) on August 25, the day before the election, the Union's international representative distributed material to the employees' homes which contrasted pay scales at US Ecology with pay scales at unionized companies; and (2) on the eve of the election, a US Ecology employee told those employees in attendance at a Union dinner held in a local restaurant that a company vice-president had made threats concerning the employee's job which supposedly would be carried out if the Union won the election.
The Board's current rule governing the treatment of alleged campaign misrepresentations is set forth in Midland National Life Insurance Co., 263 NLRB 127 (1982). In Midland, the Board stated:
[W]e will no longer probe into the truth or falsity of the parties' campaign statements ... [nor] set elections aside on the basis of misleading campaign statements. We will, however, intervene in cases where a party has used forged documents which render the voters unable to recognize propaganda for what it is.
Id. at 133. Although the Board has vacillated in its willingness to review misrepresentations made during a union's representation campaign and the Midland rule represents a departure from previous Board policy, the Midland rule was applicable at the time of the election in the instant case.
The Board's altered interpretation of the NLRA is entitled to deference and should be upheld if rational and consistent with the Act. Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); NLRB v. Best Products Co., 765 F.2d at 912. US Ecology contends that the Board's decision in Midland is incorrect because it violates the NLRA and is inconsistent with the Board's duty to insure free choice by employees. US Ecology also argues that the Midland rule is arbitrary and conflicts with previous Board decisions. We disagree.
We have recently had occasion to address these arguments in NLRB v. Best Products Co. In Best, the employer urged us to disapprove the rule in Midland and set aside an election based upon material misrepresentations made by the union during the campaign. We declined the employer's invitation to disapprove the Midland rule because the Board demonstrated ample justification for the rule and the rule is consistent with the NLRA. Best Products, 765 F.2d at 911-12. Although we recognized that Midland was the fourth change in twenty years of the Board's policy in dealing with misrepresentations made during election campaigns, we found that the rule furthered the purposes of the NLRA. We stated: "The Board's return to a rule of generally not intervening in the electoral process to correct misrepresentations is based upon its weighing the supposed benefits of such intervention against the effects that such intervention has on the 'competing policy favoring prompt completion of election proceedings.' " Best Products, 765 F.2d at 912 (quoting NLRB v. Berryfast, Inc., 741 F.2d 1161, 1162 (9th Cir.1984)). Because the Midland rule was based upon the Board's own considerable experience and empirical studies, we concluded that the Midland rule is not irrational. Best Products, 765 F.2d at 913. Since free choice is the principal aim of the portions of the NLRA which relate to representation elections, the Board's re-adoption of a policy of non-intervention does not contradict the Act. Id.
US Ecology also argues that the application of Midland in the instant case violates the "twenty-four hour rule" previously established by the Board in Peerless Plywood Co., 107 NLRB 427 (1953). In Peerless, the Board adopted a rule prohibiting either party to an election "from making speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election." Id. at 429.
Best does not resolve the question whether the Peerless "twenty-four hour rule" survives the Board policy of nonintervention adopted in Midland. We need not decide the question, however, because the instant case does not fall within the Peerless rule. Peerless concerned only one form of electioneering: "captive audience speeches" made on company time within the twenty-four hour period preceding an election. NLRB v. Hudson Oxygen Therapy Sales Co., 764 F.2d 729, 732 (9th Cir.1985). As the Board made clear in Livingston Shirt Corp., 107 NLRB 400 (1953), other lawful means of persuasion--including inviting employees to listen to speeches on or off the employer's premises, writing letters to employees and issuing statements to them--are permitted within the twenty-four hour period so long as they are conducted on the employees' own time and attendance is voluntary. Id. at 408.
In the instant case, the alleged misrepresentations were not made on company time, did not take place on company premises, and attendance at the Union dinner on the eve of the election was voluntary. Therefore, we need not consider the question whether Peerless survives the change of Board policy embodied in Midland.
Finally, US Ecology argues that the Board's tendency to establish rules governing conduct during election campaigns through adjudication rather than through rulemaking, in combination with its vacillation on the policy question of the propriety of intervention, renders it difficult for parties to an election to determine exactly what rules will be held to govern their conduct. This argument is meritless. This court has noted that "[t]he authority of the Board to establish election rules in adjudicatory proceedings is now unquestioned." NLRB v. Hudson Oxygen Therapy Sales Co., 764 F.2d at 733. Moreover, US Ecology had ample notice that the Midland rule would be applicable to this election. Midland was decided in August of 1982, and the US Ecology election was held in August of 1983. 2
US Ecology does not contend that the misrepresentations involved forged documents justifying Board intervention under Midland....
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