H.P. Hood, Inc. v. National Labor Relations Board

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

H. P. HOOD, INCORPORATED, 

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

and  No. 01-1653

UNITED FOOD & COMMERCIAL

WORKERS, AFL-CIO, LOCAL 371,

Intervenor.

STATE OF CONNECTICUT,

Amicus Curiae.



NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

and

UNITED FOOD & COMMERCIAL

WORKERS, AFL-CIO, LOCAL 371,

Intervenor,  No. 01-1835

v.

H. P. HOOD, INCORPORATED,

Respondent.

STATE OF CONNECTICUT,

Amicus Curiae.



On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board.

(34-CA-9599)

2 H. P. HOOD, INC. v. NLRB

Argued: January 23, 2002

Decided: March 1, 2002

Before LUTTIG, MICHAEL, and KING, Circuit Judges.

Petition for review denied and cross-application for enforcement

granted by unpublished per curiam opinion.

COUNSEL

ARGUED: Geoffrey Paul Wermuth, MURPHY, HESSE, TOOMEY

& LEHANE, Boston, Massachusetts, for Hood. James Matthew

Oleske, Jr., NATIONAL LABOR RELATIONS BOARD, Washing-

ton, D.C., for Board. Warren Hugh Pyle, PYLE, ROME, LICHTEN

& EHRENBERG, P.C., Boston, Massachusetts, for Union. ON

BRIEF: Arthur P. Murphy, MURPHY, HESSE, TOOMEY &

LEHANE, Boston, Massachusetts, for Hood. Arthur F. Rosenfeld,

General Counsel, John E. Higgins, Jr., Deputy General Counsel, John

H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Dep-

uty Associate General Counsel, Robert J. Englehart, Supervisory

Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,

D.C., for Board. Richard Blumenthal, Attorney General of Connecti-

cut, Richard T. Sponzo, Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL, Hartford, Connecticut, for Amicus

Curiae.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

H. P. HOOD, INC. v. NLRB 3

OPINION

PER CURIAM:

H.P. Hood, Inc. petitions for our review, pursuant to 29 U.S.C.

§ 160(f), of the Decision and Order of the National Labor Relations

Board, filed May 3, 2001 (the "Order"), requiring Hood to bargain

with Local 371 of the United Food and Commercial Workers Union,

AFL-CIO (the "Union"). The Board has filed a cross-application

seeking enforcement of the Order.

In a razor-thin election conducted in August 2000, the production

and maintenance employees of Hood’s Suffield, Connecticut, dairy

processing facility selected the Union as their collective bargaining

representative. The Union prevailed by the margin of a single vote,

seventy-one to seventy, with one contested ballot. Thereafter, the

Board rejected Hood’s objections to the election and certified the

Union. Hood refused to bargain, however, claiming that the Union’s

certification was invalid. Following a complaint from the Union, the

Board concluded that Hood’s refusal to bargain constituted an unfair

labor practice, in violation of §§ 8(a)(1) and (5) of the National Labor

Relations Act (the "Act"), and it entered its Order of May 3, 2001,

requiring Hood to bargain. As explained below, the Board did not

abuse its discretion in certifying the Union, and we grant enforcement

of its Order.

I.

On June 19, 2000, the Union petitioned the Board for a representa-

tion election among a unit of production and maintenance employees

at Hood’s Suffield, Connecticut, facility. Ten days later, Hood and the

Union, with the approval of the Board’s Regional Director, entered

into a Stipulated Election Agreement (the "Stipulation"). The Stipula-

tion provided, inter alia, that a representation election would be held

on August 3, 2000, and that the appropriate collective-bargaining unit

would include "[a]ll full-time and regular part-time production and

maintenance employees." The Stipulation also provided that "seasonal

employees" would be excluded from the collective bargaining unit

and hence would be ineligible to vote. The Stipulation required Hood

to provide the Regional Director with an election eligibility list con-

4 H. P. HOOD, INC. v. NLRB

taining the full names and addresses of all eligible voters, and Hood

complied with this requirement.

The election was conducted pursuant to the Stipulation, and a tally

conducted on August 3, 2000, revealed that seventy-one votes were

cast in favor of the Union and seventy votes were cast against it. One

additional ballot was challenged by the Board agent supervising the

election. The challenged ballot was not counted because the voter —

Danielle Bourdeau — was not on the eligibility list provided by Hood

to the Regional Director. As the Board and the parties recognized, if

Bourdeau’s ballot were counted, and if she voted against the Union,

the election would be tied. The result would then be a victory for

Hood, rather than a one-vote Union victory.1

Because of the significance of Bourdeau’s ballot, the Regional

Director requested that Hood and the Union advise him of their posi-

tions on Bourdeau’s eligibility to vote. By letter dated August 10,

2000, the Union took the position that Bourdeau was a seasonal tem-

porary employee and that, pursuant to the Stipulation, she was ineligi-

ble to vote. Five days later, Hood concurred with the Union’s position

that Bourdeau was ineligible to vote, also maintaining that she was a

seasonal employee. In support of its position that Bourdeau was ineli-

gible, Hood provided the Regional Director with a payroll record that

listed Bourdeau’s Work Status as "Seasonal Full Time." Three days

later, however, by letter of August 18, 2000, Hood "reserve[d] the

right to take an alternative position regarding the eligibility of Dan-

ielle Bourdeau."

Independent of the issue of Bourdeau’s eligibility, Hood timely

filed three separate objections to the election. By facsimile and letter

dated August 10, 2000, Hood maintained as follows: (1) the Union

had impermissibly offered to waive its initiation fee for certain

employees if they signed union authorization cards prior to the elec-

tion; (2) the Union had distributed and approved the use of tape

1

As the Seventh Circuit recently observed, "like a base runner who

reaches the bag at the same time as the ball, a[n electoral] tie goes to the

company." NLRB v. Americold Logistics, Inc., 214 F.3d 935, 937 (7th

Cir. 2000). See also NLRB v. A.G. Parrott Co., 630 F.2d 212, 213 (4th

Cir. 1980).

H. P. HOOD, INC. v. NLRB 5

recorders to coerce employees; and (3) two of the eligible Hood

employees, a married couple, were unable to vote due to the death of

a relative. On August 11, 2000, the Regional Director acknowledged

receipt of Hood’s objections, and it specifically advised Hood to fur-

nish any evidence in support of its objections no later than seven days

after the August 10, 2000, filing thereof, i.e., by August 17, 2000.

By facsimile dated August 18, 2000, Hood submitted its evidence

to the Regional Director in support of its objections to the election.

Specifically, Hood produced affidavits from five of its employees,

each of whom averred that a Union representative had said "[i]f you

sign a union authorization card before the election you won’t have to

pay an initiation fee."2 In submitting its evidence, counsel for Hood

stated in its facsimile letter that "[d]ue to a miscommunication

between counsel for the employer, the Employer’s evidence is being

submitted hours late." Hood explained that "[c]ounsel for the

employer had been on vacation this week," and it requested that the

Board extend the time for submission of the evidence.3

On the following Monday, August 21, 2000, the Regional Director

denied Hood’s "belated request to extend the time for receipt of its

evidence," concluding that Hood had not offered a sufficient explana-

2

Hood did not submit any affidavits to the Regional Director in support

of its allegation that the Union had distributed and approved the use of

tape recorders to coerce employees; it simply maintained that an

employee would be willing to so testify. Finally, Hood withdrew its third

objection, i.e., that two employees were unable to vote because of the

death of a relative.

3

At no time, either before the Board or this Court, has counsel for

Hood maintained that its submission of evidence on August 18, 2000,

was timely. The Board’s regulations require that objections to an election

be filed within seven days after the tally of ballots has been prepared. 29

C.F.R. § 102.69(a). The tally was completed on August 3, 2000, and

Hood timely filed its objections on the seventh day thereafter, August 10,

2000. The regulations further require that evidence in support of such

objections be filed within seven days of the filing of objections, and that

Saturdays and Sundays are to be included in computing the time. Id. As

such, given that Hood’s objections were filed on August 10, 2000, its

supporting evidence was due on August 17, 2000, and its August 18,

2000, submission was untimely.

6 H. P. HOOD, INC. v. NLRB

tion for its untimeliness. Following denial of its request for an exten-

sion of time, Hood faxed a request to the Board’s Executive Secretary

for special permission to appeal the Regional Director’s decision

refusing to consider its evidence. On August 30, 2000, the Board

granted Hood’s request for permission to appeal, and it also simulta-

neously denied the appeal on its merits.

Later that same day, August 30, 2000, the Regional Director issued

his Report on Challenged Ballot and Objections (the "Regional Direc-

tor’s Report"), in which he assessed Ms. Bourdeau’s eligibility to vote

as well as Hood’s objections to the election. Based on his independent

investigation, as well as on the positions of both the Union and Hood

that Bourdeau was a seasonal employee, the Regional Director con-

cluded that Bourdeau was ineligible to vote and that her ballot had

been properly excluded. The Regional Director also rejected Hood’s

other objections to the validity of the election, i.e., that the Union had

offered to waive its initiation fee for certain employees, and that it

had used tape recorders to coerce employees. Both of these objections

were rejected because Hood’s evidence was not timely filed. Finding

no meritorious objection to the election, the Regional Director recom-

mended that the Board issue a Certificate of Representation on behalf

of the Union.

The morning after the Regional Director recommended certifica-

tion of the Union, Hood made a 180-degree change in its position on

Bourdeau’s eligibility to vote. In a letter to the Regional Director

dated August 31, 2000, Hood maintained that Bourdeau was "a regu-

lar part-time production and maintenance employee." In support of its

new position, Hood submitted affidavits from two of its production

supervisors, claiming that Bourdeau had been hired to work full-time

through the Summer and regularly on a part-time basis thereafter.4 On

4

Hood maintains that its evidence of Bourdeau’s part-time employ-

ment status was submitted after issuance of the Regional Director’s

Report because Hood’s counsel was misled by an assistant to the

Regional Director. Specifically, Hood contends that, in a phone conver-

sation on August 30, 2000, an assistant to the Regional Director incor-

rectly stated that the Regional Director’s Report would not issue that day.

Hood contends that its reliance on the misstatement of the Regional

Director’s assistant explains why its evidence was not submitted until

August 31, 2000, as opposed to on August 30, 2000. Hood, however,

offers no reason why it did not submit evidence of Bourdeau’s employ-

ment status prior to August 30, 2000.

H. P. HOOD, INC. v. NLRB 7

September 1, 2000, Hood procured a hand-written affidavit from

Bourdeau herself, stating that after she returned to school full-time in

the Fall she "would be working several Saturdays every 3 months, but

the schedule was not set."

On October 11, 2000, the Regional Director dealt with Hood’s new

position and issued a Supplemental Report on Challenged Ballot and

Objections. Despite the tardy submission of affidavits with regard to

Bourdeau’s eligibility to vote, the Regional Director "considered all

of the Employer’s additional evidence." However, because the affida-

vits were not sufficiently specific and Bourdeau’s work schedule had

not yet been determined, the Regional Director decided that Bourdeau

was not a regular part-time employee and hence sustained the Union’s

challenge to her ballot. The Regional Director consequently reiterated

his earlier recommendation to the Board that Hood’s objections to the

election should be overruled. On November 21, 2000, the Board

adopted the findings and recommendations of the Regional Director

and certified the Union as the "exclusive collective-bargaining repre-

sentative" of the production and maintenance employees at Hood’s

Suffield, Connecticut, dairy processing facility. H.P. Hood, Inc.,

Decision and Certification of Representative, 34-RC-1829 (Nov. 21,

2000).

Following the Board’s November 2000 certification, the Union

unsuccessfully requested that Hood engage in collective bargaining.

Hood, however, refused to bargain and, on March 1, 2001, the Union

filed an unfair labor practice charge with the Board, alleging that

Hood’s refusal to bargain violated §§ 8(a)(1) and (5) of the Act.5

5

Section 8 of the Act sets forth the definitions of the unfair labor prac-

tices at issue in this case, providing in pertinent part as follows:

It shall be an unfair labor practice for an employer —

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights [to engage in union activities] . . .;

...

(5) to refuse to bargain collectively with the representatives

of his employees . . . .

29 U.S.C. § 158.

8 H. P. HOOD, INC. v. NLRB

Hood then admitted its refusal to bargain with the Union, but con-

tended that it was not obligated to do so because the Union’s certifica-

tion was invalid. On May 3, 2001, the Board issued the Order giving

rise to this proceeding, concluding that all representation issues raised

by Hood could have been or were litigated in the prior representation

proceeding, and deciding that Hood had not adduced any newly dis-

covered evidence or special circumstances that necessitated reexami-

nation of the representation proceeding. H.P. Hood, Inc., 333

N.L.R.B. No. 158 (May 3, 2001). As such, the Board ruled that

Hood’s refusal to bargain with the Union constituted a violation of

§§ 8(a)(1) and (5) of the Act, and it ordered Hood to bargain with the

Union on request.

On May 14, 2001, Hood filed its Petition for Review with this

Court, requesting that the Order be set aside or that the case be

remanded to the Board for an evidentiary hearing on the contested

issues. Shortly thereafter, the Union moved to intervene in this pro-

ceeding in order to oppose Hood’s effort to vacate the Board’s certifi-

cation, and the Board filed its cross-application for enforcement of the

Order. We possess jurisdiction pursuant to the provisions of 29 U.S.C.

§ 160(f),6 and we grant enforcement of the Order.

II.

As we have repeatedly observed, "[t]he results of a Board-

supervised representation election are presumptively valid." NLRB v.

Flambeau Airmold Corp., 178 F.3d 705, 707 (4th Cir. 1999). We

review a determination by the Board on the eligibility of a voter in

6

Section 160(f) of Title 29 provides in pertinent part as follows:

Any person aggrieved by a final order of the Board granting or

denying in whole or in part the relief sought may obtain a review

of such order in any court of appeals of the United States in the

circuit wherein the unfair labor practice in question was alleged

to have been engaged in or wherein such person resides or trans-

acts business . . . .

All relevant events underlying this proceeding occurred outside of our

bailiwick, in the State of Connecticut. We nevertheless possess jurisdic-

tion because Hood maintains a production and distribution facility in

Winchester, Virginia.

H. P. HOOD, INC. v. NLRB 9

a representation election for abuse of discretion. Airport Shuttle-

Cincinnati, Inc. v. NLRB, 703 F.2d 220, 223 (6th Cir. 1983). In other

words, "we may overturn the NLRB’s finding only if the NLRB has

abused its discretion in certifying the election." Elizabethtown Gas

Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000) (internal quotations

and citations omitted). In a similar vein, the Board’s decision to deny

an evidentiary hearing on election objections is also reviewed for

abuse of discretion. NLRB v. VSA, Inc., 24 F.3d 588, 596-98 (4th Cir.

1994). Finally, and in consideration of the deference which we accord

the Board, its construction of its own regulations should be set aside

only if it acted in a fashion "so arbitrary as to defeat justice." KBI Sec.

Serv., Inc. v. NLRB, 91 F.3d 291, 295 (2d. Cir. 1996). Because Hood

admits that it refused to bargain with the Union, the sole issue before

us is whether the Board abused its discretion in certifying the Union.

III.

Hood makes four contentions of error with regard to the Board’s

decision to certify the Union as the collective bargaining representa-

tive of the production and maintenance employees at its Suffield,

Connecticut, plant. Specifically, Hood maintains that the Board

abused its discretion in: (1) determining that Bourdeau was not eligi-

ble to vote in the election; (2) failing to conduct a hearing to investi-

gate Bourdeau’s eligibility to vote; (3) declining to consider Hood’s

late-filed evidence; and (4) refusing to remand the case in light of the

Regional Director’s alleged bias against Hood. We address each of

these contentions in turn.

A.

Hood maintains that the Board abused its discretion in concluding

that Bourdeau was not a regular part-time employee eligible to vote

in the election. Pursuant to the Stipulation, Hood provided the

Regional Director with the election eligibility list containing the

names of all eligible voters: Bourdeau’s name was not on the list. Fol-

lowing the election, the Regional Director afforded both parties an

opportunity to state their positions on Bourdeau’s eligibility to vote,

and both the Union and Hood promptly maintained that Bourdeau was

ineligible. Indeed, Hood provided the Regional Director with a pay-

roll record indicating that Bourdeau was a seasonal employee and

10 H. P. HOOD, INC. v. NLRB

thus ineligible to vote. Hood did not alter its position that Bourdeau

was ineligible until four weeks after the election.

Hood’s only evidence that Bourdeau was a regular part-time

employee eligible to vote — submitted the day after issuance of the

Regional Director’s Report — consisted of three conclusory affida-

vits. The first two affidavits were made by Hood production supervi-

sors and, as the Regional Director observed, both contained "the

identical general statement that in the summer of 2000 she was told

that she would work ‘on a part time basis regularly after the sum-

mer.’" Moreover, as the Regional Director also explained, "neither

[affidavit] provided any specific evidence as to the terms and condi-

tions of her employment, the anticipated duration of her employment,

or the days or number of hours she would be working during any pay-

roll period." Hood’s third affidavit was from Bourdeau herself and it

was equally vague, asserting that after Bourdeau returned to school

in the Fall she would be "working several Saturdays every 3 months

but the schedule was not set." Simply put, these three affidavits did

not compel the Board to conclude that Bourdeau would be working

as a regular part-time employee at Hood’s Suffield plant.

Indeed, giving Hood the benefit of any doubt on Bourdeau’s state-

ment that she would work "several Saturdays every 3 months," the

Board’s decision would not constitute an abuse of its discretion.

Although "the Board generally excludes summer employees from the

appropriate unit, such employees will be deemed eligible if, upon

returning to school, their employment evidences regular part-time sta-

tus." Crest Wine & Spirits, Ltd., 168 N.L.R.B. 754, 754 (1967). To

be included in a bargaining unit, however, such students must share

a "sufficient community of interest" with the unit’s other employees.

Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531, 535 (4th Cir. 1999).

An employee, such as Bourdeau, who merely works "several Satur-

days every three months," plainly would not share such a community

of interest.

As the First Circuit has recognized, "[w]hile consistent employ-

ment but one day a week may be enough to satisfy the Board’s ‘com-

munity of interest’ standard . . . less than consistent Saturday

employment . . . cannot sustain a finding of regular part-time employ-

ment without other evidence." NLRB v. Sandy’s Stores, Inc., 398 F.2d

H. P. HOOD, INC. v. NLRB 11

268, 273 (1st Cir. 1968); see also Wehrenberg Theatres, Inc., 260

N.L.R.B. 18, 22 (1982), enforced 690 F.2d 159 (8th Cir. 1982) (find-

ing student who worked only "several" times during fall and Christ-

mas vacation after summer employment to be ineligible to vote in

representation election); Century Moving & Storage, Inc., 251

N.L.R.B. 671, 681 (1980) ("The determinative criteria as to whether

students are to be included in a unit appears to be the regularity of

their part-time employment [which may be as little as one day a

week.]"). The First Circuit’s decision in Sandy’s Stores, as well as the

Board’s own decisions, indicate that an employee should generally

work at least a day each week to be a regular part-time employee.7

Bourdeau’s averment that she will work "several Saturdays every 3

months," by contrast, indicates that she will likely work, at most, only

one or two Saturdays per month, i.e., far less than one day per week.

Because Bourdeau would be working sporadically, and signifi-

cantly less than one day per week, the Board did not err in concluding

that she did not share a sufficient community of interest with the pro-

duction and maintenance unit’s employees. Given that Bourdeau was

not on the election eligibility list furnished by Hood, and that Hood’s

own payroll records listed her as a seasonal employee, it is clear that

the Board did not abuse its discretion in concluding that she was not

a regular part-time employee, and hence that she was not eligible to

vote.

B.

Hood next contends that the Board erred in failing to conduct a

hearing to investigate Bourdeau’s eligibility to vote. The Board, how-

7

Hood maintains that the dispute over Bourdeau’s employment status

is controlled by the Board’s 1978 decision in Dick Kelchner Excavating

Co., 236 N.L.R.B. 1414 (1978). There the Board determined that a stu-

dent who worked full-time during the summer, holidays, and occasional

Saturdays was a regular part-time employee who should be included in

the bargaining unit. The Board’s decision in Dick Kelchner is easily dis-

tinguishable, however, because in that case the employer’s business was

seasonal in nature, with its peak time being from May to November.

Thus, the student, like other employees, worked full-time during the peak

season and less regularly during the off season.

12 H. P. HOOD, INC. v. NLRB

ever, was under no obligation to conduct such a hearing, and it did

not, in these circumstances, abuse its broad discretion in declining to

do so.

As we have recognized, "[a] hearing is necessary if it is shown that

there are substantial and material issues of disputed fact relating to the

validity of the election." NLRB v. Hydrotherm, Inc., 824 F.2d 332,

335 (4th Cir. 1987). An evidentiary hearing is not required when, "if

all the facts supporting the position of the objecting party were cred-

ited, no ground is shown for setting aside the election." NLRB v. Mfr’s

Packaging Co., 645 F.2d 223, 226 n.1 (4th Cir. 1981). Moreover, in

seeking an evidentiary hearing, "it is not sufficient for an employer

merely to question the interpretation of or legal conclusions drawn

from the facts by the Regional Director." National Posters, Inc. v.

NLRB, 720 F.2d 1358, 1362 (4th Cir. 1983). Rather, "[t]o be entitled

to a hearing, the objecting party must make a proffer of evidence

which prima facie would warrant setting aside the election." Hydro-

therm, 824 F.2d at 335 (internal quotations and citations omitted).

Hood has failed to point to any substantial and material issues of

disputed fact regarding Bourdeau’s eligibility to vote. Indeed, in its

brief, Hood asserts that "the evidence [of Bourdeau’s employment

status] was uncontested." Appellant’s Br. at 27. If the evidence is

uncontested, there can be no substantial and material issue of disputed

fact. See Hydrotherm, 824 F.2d 335-36 ("In fact, the company has

acknowledged that ‘[i]n this case, the evidence is uncontroverted, so

there is no unresolved issue of fact.’ Thus, the Board did not abuse

its discretion in refusing to grant the company a hearing.").

Rather than point to a substantial and material issue of disputed

fact, Hood contends that "[t]he Board and Regional Director failed to

draw the only reasonable conclusion, namely that Ms. Bourdeau had

a legitimate expectation of continued employment." Appellant’s Br.

at 27-28. In essence, Hood maintains that the Board reached the

wrong conclusion in its interpretation of the evidence. As this Court

recognized in National Posters, however, an employer is not entitled

to a hearing merely because it questions the Board’s interpretation of

the facts. 720 F.2d at 1362.

In seeking a hearing on the issue of Bourdeau’s eligibility to vote,

the burden was on Hood to point to substantial and material issues of

H. P. HOOD, INC. v. NLRB 13

disputed fact and to make a "proffer of evidence which prima facie

would warrant setting aside the election." Hydrotherm, 824 F.2d at

335 (internal quotations and citations omitted). Because no such prof-

fer was made, the Board did not abuse its discretion in declining to

conduct a hearing on Bourdeau’s eligibility to vote.

C.

Hood also maintains that the Board erred in refusing to consider its

late-filed evidence, i.e., the five affidavits of its employees averring

that union officials told them "[i]f you sign a union authorization card

before the election you won’t have to pay an initiation fee."8 Pursuant

to Rule 102.69(a) of the Board’s Rules and Regulations, a party filing

objections to a representation election must furnish its evidence to the

Regional Director within seven days "after the filing of objections."9

As we have noted, Hood filed its objections on August 10, 2000, and,

as such, it was required to furnish its evidence to the Regional Direc-

tor no later than August 17, 2000. Hood readily acknowledges that its

evidence was submitted "hours late," on the morning of August 18,

2000.

The Board has explained that Rule 102.69(a) will be "strictly

applied," Star Video Entm’t, 290 N.L.R.B. 1010, 1010 (1988), and it

has frequently rejected late-filed evidence submitted by both employ-

ers and unions. For example, in TA Inv. Co., Inc., 300 N.L.R.B. 473

(1990), the Board refused to consider a union’s late-filed evidence in

8

The Supreme Court has made clear that a union may not offer to

waive its initiation fee in exchange for an employee signing a union

authorization card prior to the election. NLRB v. Savair Mfg. Co., 414

U.S. 270 (1973). Indeed, as this Court observed in Hydrotherm, "[a]

waiver of initiation fees conditioned upon the signing of a union authori-

zation card prior to an election is improper and must result in the setting

aside of a union victory." 824 F.2d at 336. Thus, if credited, Hood’s evi-

dence would be grounds for setting aside the election.

9

Rule 102.69(a) provides, in relevant part, as follows: "Within 7 days

after the filing of objections, or such additional time as the Regional

Director may allow, the party filing objections shall furnish to the

Regional Director the evidence available to it to support the objections."

29 C.F.R. § 102.69(a).

14 H. P. HOOD, INC. v. NLRB

support of objections, in spite of the fact that the union’s attorney was

hindered by a family emergency. Just like Hood, the union in TA

Investment did not request an extension to file its evidence until the

day after the evidence was due. In rejecting the union’s belated

request for an extension, the Board explained that Rule 102.69(a)

"does not require consideration of a request for an extension of time

when the request itself is untimely." Id. at 473 n.1. The Board also

strictly applied the provisions of Rule 102.69(a) in its decision in

Public Storage, 295 N.L.R.B. 1034 (1989), where it reversed the

Regional Director’s consideration of a union’s late-filed evidence.

The Board determined that the union’s failure to receive the Regional

Director’s courtesy letter reminding it of the submission deadline did

not excuse non-compliance with Rule 102.69(a). More recently, in

Goody’s Family Clothing, Inc., 308 N.L.R.B. 181 (1992), the Board

refused to consider an employer’s evidence in support of its objec-

tions to a representation election because the evidence was filed a day

late. Cf. Drum Lithographers, 287 N.L.R.B. 22 (1987) (refusing to

consider union’s late-filed objections to representation election).

As we have observed, the Board’s construction of its own regula-

tions may only be set aside by us if it acted in a fashion "so arbitrary

as to defeat justice." KBI Sec. Serv., Inc. v. NLRB, 91 F.3d 291, 295

(2d. Cir. 1996). Because the Board has consistently followed its

admonition in Star Video that the provisions of Rule 102.69(a) will

be strictly applied, we are unable to conclude that it acted arbitrarily

in refusing to consider Hood’s late-filed evidence. In this situation,

the Regional Director sent Hood a certified letter, on August 11,

2000, reminding it that evidence was due no later than seven days

after the August 10, 2000, filing of its objections. Hood nevertheless

submitted its evidence a day late, on August 18, 2000, offering the

explanation that there had been "a miscommunication between coun-

sel for the employer" and that "[c]ounsel for the employer has been

on vacation this week and through inadvertence did not request the

extension until today." Given the Board’s decision in TA Investment

that an attorney’s family emergency does not excuse failure to comply

with Rule 102.69(a), we see no reason why an attorney being on vaca-

tion should constitute an exception to the Board’s uniform application

of its Rule.

H. P. HOOD, INC. v. NLRB 15

D.

Finally, Hood has maintained that a hearing was warranted on its

objections to the election because the record revealed that both the

Board and the Regional Director were biased against it. In support of

its bias allegation, Hood pointed to certain "harshly critical" state-

ments of the Regional Director. For example, according to Hood’s

brief, the Regional Director stated that Hood’s counsel "‘erroneously

and disingenuously’ made misrepresentations to the Region, [and]

‘once again’ failed to ‘provide a valid basis for excusing its neglect.’"

Appellant’s Br. at 41. We see Hood’s contention of bias as meritless.

While the terminology utilized by the Regional Director may be con-

sidered as strong, it is premised on Hood’s conduct during the pro-

ceedings before the Regional Director and the Board. The Regional

Director’s language is not dissimilar to that frequently found in judi-

cial and administrative opinions, and its statements fail to support the

assertion that the Board and the Regional Director were somehow

biased against Hood. See Liteky v. United States, 510 U.S. 540, 555

(1994) (recognizing in recusal context that "judicial rulings alone

almost never constitute a valid basis for a bias or partiality motion,"

and that remarks that are "critical or disapproving of, or even hostile

to, counsel, the parties, or their cases, ordinarily do not support a bias

or partiality challenge.").

IV.

For the foregoing reasons, we conclude that the Board did not

abuse its discretion in certifying the election. We accordingly deny

Hood’s petition for review, and we grant the Board’s cross-

application for enforcement of its Order.

PETITION FOR REVIEW DENIED AND CROSS-

APPLICATION FOR ENFORCEMENT GRANTED