Warren Unilube, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 28 August 2012
• Docket Number: 11–2974.,Nos. 11–2664,s. 11–2664
• Citation: 690 F.3d 969
• Parties: WARREN UNILUBE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Warren Unilube, Inc., Respondent, v. National Labor Relations Board, Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

690 F.3d 969

WARREN UNILUBE, INC., Petitioner,

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

Warren Unilube, Inc., Respondent,

v.National Labor Relations Board, Petitioner.

Nos. 11–2664, 11–2974.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2012.

Filed: Aug. 28, 2012.

Jennifer M. Miller, argued, Raleigh, NC, Benjamin N. Thompson, Raleigh, NC, Frederick J. Lewis, Memphis, TN, on the brief, for Petitioner.

Daniel Blitz, argued, Jill Green, on the brief, Washington, DC, for Respondent.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Warren Unilube, Inc., petitions for review of an order of the National Labor Relations Board that directed the company to recognize and bargain with Teamsters Local 667 (“the Union”). The Board cross-applies for enforcement of its order. We deny the petition for review and enforce the Board's order.

I.

A labor organization may file a petition with the Board seeking certification as the collective bargaining representative of a group of employees. See29 U.S.C. § 159(c)(1); 29 C.F.R. § 102.60(a) (2010).¹ The labor organization and employer may, with the approval of the Board's regional director, enter into an agreement setting a representation election to be conducted under the director's supervision. See29 U.S.C. § 159(c)(4); 29 C.F.R. §§ 102.62(b), 102.69(a) (2010). After the election, and within seven days of the tally of ballots, a party may file objections to the conduct of the election or to conduct that allegedly affected the election results. 29 C.F.R. § 102.69(a). If the labor organization prevailed in the election, and no objections are filed, then the regional director must certify the results and issue a certification of representative. Id. § 102.69(b). If objections are filed, however, the regional director must prepare a report on the objections and make recommendations to the Board. Id. § 102.69(c)(2). A party may file exceptions to the report with the Board, see id., and the Board may resolve the exceptions based upon the record or after a hearing. Id. § 102.69(f).

In August 2010, the Union petitioned the Board, asking to be certified as the collectivebargaining representative of 135 employees at Warren Unilube's facilities in West Memphis, Arkansas. The Union and Warren Unilube entered into a stipulated election agreement, and the Board's Regional Office scheduled a representation election for October 8, 2010.

On October 6, 2010, a local newspaper published an editorial entitled “Our View: Union very bad idea for West Memphis.” The editorial recounted “efforts by Teamsters Local 667, Memphis, Tenn., of trying to take control of a major company right here in West Memphis.” It warned of potentially “dire consequences” of a Union victory, and stated that, “[f]rom all we know, if this union succeeds this company's management could very easily close shop and cause every worker to loose [sic] their jobs.” The editorial concluded: “We can only hope that the employees of this West Memphis company have the common sense to send Teamsters Local 667 back across the bridge with a strong message they are not welcome on this side of the Mississippi River.”

The next day, the Union filed an unfair labor practice charge with the Board's Regional Office, alleging that Warren Unilube unlawfully had threatened to close its facility if the employees voted in favor of unionization. The Board has a longstanding “blocking charge policy,” which provides that the Board generally will not process petitions for certification and hold elections while an unfair labor practice charge is pending. See Int'l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 293 F.3d 409, 412 (8th Cir.2002); NLRB Casehandling Manual (Part Two) Representation Proceedings § 11730 (2007). When an election already has been scheduled, and a charge is filed too late to permit adequate investigation before the election, the policy provides that the Regional Director may, “in his/her discretion,” (1) postpone the election pending disposition of the charge, (2) hold the election and impound the ballots until after disposition of the charge, or (3) conduct the election and issue a certification prior to an investigation. NLRB Casehandling Manual § 11731.5. Pursuant to that policy, the Board's Regional Director postponed the election and held the Union's petition in abeyance.

That same day, Warren Unilube's president, Dale Wells, issued a memorandum to Warren Unilube employees. Wells discussed the editorial, including the prospect of a plant closure, and advised employees to disregard all rumors. He informed employees that Warren Unilube had “no intent to close this plant no matter the outcome of this election.”

On October 20, 2010, the Union filed a request to proceed with its petition for certification, and the associated election, notwithstanding the pending charge. The Union and Warren Unilube entered into a second stipulated election agreement that set the election for November 5. The Board approved the agreement, and the election was held on November 5. The employees voted 69–56 in favor of union representation.

A week after the election, Warren Unilube filed objections to conduct that allegedly affected the election results. The company alleged that the Union had filed a “baseless” unfair labor practice charge that caused a delay in the election scheduled for October 8. Warren Unilube denied any responsibility for the editorial and argued that the Union had no basis to believe otherwise. The company argued that because the Union had no basis for the charge, and because Warren Unilube immediately published a disclaimer to its employees, the election should have been held as scheduled. Warren Unilube also urged that the Board's delay of the election caused “anger and dismay” among employeesand unfairly suggested that Warren Unilube had unlawfully threatened to close the plant. The actions of the Union and the Board, Warren Unilube argued, destroyed the conditions necessary for a valid election. In support of its claim, Warren Unilube submitted declarations of three supervisors and three hourly employees. These employees stated their belief that the delay in the election impacted the results in the Union's favor.

The Regional Director issued a report recommending that the Board overrule Warren Unilube's objections and certify the Union. The Regional Director noted that the allegations in the unfair labor practice charge were serious, and determined that there was “no basis to conclude that the charge was frivolous or baseless.” Because the timing of the editorial left the parties little time to investigate the matter, the Director concluded that the Region properly exercised its discretion to postpone the election pending an investigation. In sum, the Director determined that Warren Unilube's evidence of alleged misconduct was “insufficient on its face to warrant setting aside the election.”

Warren Unilube filed exceptions to the Director's report. The company urged the Board to set aside the election or order a hearing on the objections. The Board adopted the Regional Director's recommendations without a hearing and certified the Union as the employees' bargaining representative. One Board Member thought it would have been “preferable” to hold the election as scheduled and impound the ballots pending an investigation, but nonetheless agreed that the Regional Director did not abuse his discretion in postponing the election.

Following the Union's certification, Warren Unilube declined the Union's request to negotiate a collective bargaining agreement. The Union filed an unfair labor practice charge, and the Board's General Counsel issued a complaint alleging that Warren Unilube's refusal to recognize and bargain with the Union violated the National Labor Relations Act, 29 U.S.C. §§ 151–69. See id. § 160(b). In response, Warren Unilube reasserted its objections to the election, disputed the validity of the Union's certification, and argued that it had no obligation to bargain with the Union.

The Board granted the General Counsel's motion for summary judgment. The Board declined to reexamine its certification decision and held that Warren Unilube's refusal to bargain violated 29 U.S.C. § 158(a)(1) and (5). The Board ordered the company to recognize and bargain with the Union as the employees' collective bargaining representative. See id. § 160(c). Warren Unilube petitions for review of the Board's order, and the Board cross-applies for enforcement of its order. See id. § 160(e)–(f).

II.

The Board's certification decisions are not final orders subject to direct judicial review. See Boire v. Greyhound Corp., 376 U.S. 473, 476–77, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). An employer, however, may obtain review of the Board's certification decision if a dispute over the correctness of that decision “eventuates in a finding by the Board that an unfair labor practice has been committed.” Id. at 477, 84 S.Ct. 894. Thus, an employer may obtain judicial review of the Board's certification decision by refusing to bargain and defending the ensuing unfair labor practice charge on the ground that the election was flawed. Id.; see NLRB v. Superior of Mo., Inc., 233 F.3d 547, 550 (8th Cir.2000). Because the Board's finding of an unfair labor practice is based on findings made in the certification proceeding, the record of that proceeding is properly before the court. See29 U.S.C. § 159(d); Boire, 376 U.S. at 477, 84 S.Ct. 894.

Warren Unilube followed that approach here. The company argues that it had no duty to bargain with the Union, because the Union was not a properly certified representative of the employees. Warren Unilube contends that the election results should be set aside on the ground that misconduct by the Union and abuse of discretion by the Regional Director interfered with employees' exercise of free choice and materially affected the election...