Vari-Tronics Co., Inc. v. N.L.R.B., VARI-TRONICS
| Decision Date | 09 January 1979 |
| Docket Number | No. 77-3369,VARI-TRONICS,77-3369 |
| Citation | 589 F.2d 991 |
| Parties | 100 L.R.R.M. (BNA) 2554, 85 Lab.Cas. P 11,146 COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James G. Johnson (argued), of Hill, Farrer & Burrill, Los Angeles, Cal., for petitioner.
Vivian A. Miller (argued), Washington, D. C., for respondent.
On Petition to Review a Decision of the National Labor Relations Board.
Before BROWNING and ANDERSON, Circuit Judges, and WILLIAMS, * District Judge.
Warehousemen, Garage and Service Station Employees Local 334 filed a petition for a representation election with the National Labor Relations Board, seeking to represent a unit of employees at Vari-Tronics' Spokane, Washington, facility. The parties entered into an Agreement for Consent Election, which provided that "(o)bjections to the conduct of the election or conduct affecting the results of the election . . . may be filed within 5 days after issuance of the Tally of Ballots." See 29 C.F.R. §§ 101.19(a)(4), 102.69(a) (1977).
The Union won the election by a 2-to-1 margin. Vari-Troncis filed timely objections to the election, claiming that the Union offered to waive a substantial portion of the regular initiation fee to any employees who paid the reduced fee and signed authorization cards before the election.
The Regional Director investigated Vari-Tronics' objections and issued a report. He found that a Union representative had told employees during the election campaign that the Union had a policy of admitting groups of previously unrepresented employees to membership at a discounted rate. The discount was available both before and after the election; the employees could take advantage of the discount until a bargaining agreement was signed. The Regional Director noted in passing that the Union would not refund any fees paid if the Union lost the election.
The Regional Director held that the reduced fee policy did not interfere with the employees' free choice. See NLRB v. Savair Manufacturing Co., 414 U.S. 270, 272 n.4, 94 S.Ct. 495, n.4, 38 L.Ed.2d 495 (1973). Accordingly, he overruled the objections without a hearing and certified the election results. Vari-Tronics filed exceptions to the Regional Director's report, but the Board refused to consider them.
After Vari-Tronics refused to bargain, the Union filed an unfair labor practice charge. Vari-Tronics admitted refusing to bargain but claimed that the Union was not properly certified because the election was invalid and because there had been no evidentiary hearing on the objections to the election.
After an unfair labor practice hearing, the Board ordered Vari-Tronics to bargain with the Union. 230 N.L.R.B. 1139 (1977). Vari-Tronics petitions for review of the Board's order. The Board cross-applies for enforcement of its order.
Vari-Tronics has abandoned the argument that the offer was improperly conditioned on the signing of authorization cards before the election. Vari-Tronics' shift in position was compelled when the Regional Director's investigation revealed that the offer was not in fact conditioned on the pre-election signing of cards.
Vari-Tronics now seeks to challenge the election on the ground that discounted fees paid before the election would have been nonrefundable had the Union lost the election. No mention was made of the nonrefundable nature of the reduced-fee offer, however, in the objections to the election. Vari-Tronics first addressed the nonrefundability issue after the five-day period allowing for filing objections.
Vari-Tronics waived the nonrefundability issue by failing to raise it in a timely manner. See 29 C.F.R. §§ 101.19(a)(4), 102.69(a) (1977); 29 U.S.C. § 160(e) (1976); United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952) (). Moreover, we emphasize that counsel for the employer did not attempt any showing, or argue, either before the Board or before this court, that its "failure or neglect to urge such objection (should) be excused because of extraordinary circumstances." 29 U.S.C. § 160(e) (1976).
Vari-Tronics contends that it was...
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