National Labor Relations Board v. Lorimar Productions, Inc., Lorimar Productions, Inc. v. National Labor Relations Board

PREGERSON, Judge,

dissenting.

I dissent from Part III of the majority opinion, which invalidates the representation election because the Board, having granted a request for review of the unit determination before the election, failed to require two ballots from each voter.

As the majority correctly notes, courts have held consistently that the Board has broad discretion to establish procedures and safeguards necessary to conduct representation elections. NLRB v. WymanGordon, Co., 394 U.S. 759, 767 , 89 S.Ct. 1426, 1430 , 22 L.Ed.2d 709 (1969); NLRB v. A. J. Tower Co., 329 U.S. 324, 330 , 67 S.Ct. 324, 327 , 91 L.Ed. 322 (1946); NLRB v. Berryfast, Inc., 741 F.2d 1161, 1163 (9th Cir.1984); Summa Corp. v. NLRB, 625 F.2d 293, 295 (9th Cir.1980). Our review of Board supervision of election proceedings is limited, NLRB v. Metro-Truck Body, Inc., 613 F.2d 746, 748 (9th Cir.1979), and we may set aside an election only if the election process is “significantly impaired.” Summa Corp., 625 F.2d at 295 (quoting NLRB v. Heath Tec Division/San Francisco, 566 F.2d 1367, 1372 (9th Cir.), cert. denied, 439 U.S. 832 , 99 S.Ct. 110 , 58 L.Ed.2d 127 (1978)). Because I cannot conclude that the Board abused its discretion in applying its impound procedures under Rule 102.67(b) and in allowing the election to go forward, I would not set the election aside.

The Board’s function in establishing election procedures is to weigh opposing interests and establish procedures necessary to insure the employees’ fair and free choice of bargaining representatives. See Wyman-Gordon, 394 U.S. at 767 , 89 S.Ct. at 1430 . One of the most significant problems the Board faces in conducting elections is the avoidance of unnecessary delays in the election process. Raley’s Inc. v. NLRB, 725 F.2d 1204, 1207 (9th Cir.1984) (en banc) (Pregerson, J., concurring); see also Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization Under the NLRA, 96 Harv.L.Rev. 1795, 1769-1803 (1983). Congress recognized the difficulty with such delays as early as 1935 with the original passage of the Act:

When an employee organization has built up its membership to a point where it is entitled to be recognized as the representative of the employees for collective bargaining, and the employer refuses to accord such recognition, the union, unless an election can be promptly held to determine the choice of representative, runs the risk of impairment of strength by attrition and delay____

See Boire v. Greyhound Corp., 376 U.S. 473, 478 , 84 S.Ct. 894, 897 , 11 L.Ed.2d 849 (1964) (quoting H.R.Rep. No. 972, 74th Cong., 1st Sess. 5). In fact, the primary emphasis of the Chairman’s Task Force Report, on which the majority relies, was to avoid delay in elections in precisely such cases as this: where the Board has granted a request for review of a regional director’s pre-election ruling, but is unable to decide the case before the election.

In rejecting the Board’s past practice of postponing the election until the Board has rendered a decision, the Task Force noted:

Once an election has been directed, the parties gear their campaigns in light of the election date. To postpone the election in such circumstances is frustrating to a very high degree. If the election is ordered months later, the parties must then crank up their campaigns once again. Union members of the Task Force assert that there may have been an irretrievable loss of employee support. Further explication is unnecessary, for it seems self-evident that undue prolongation of the election is inconsistent with the basic purpose of Section 9 to provide a prompt method of resolving representation disputes.

[Ojnce an election date has been set, the election should be held on that date. If there are pending issues which could affect the validity of the election, they should be resolved after the election has been held. The ballots cast in the elec *1304 tion can be impounded and later counted, after the issues have been resolved, in whatever appropriate manner is indicated by the decision on the issues. The great virtue of this procedure is that it enables a registration of the employees’ choice at the time when interest and momentum in both the union and employer camps are at their peak. While knowledge of the outcome may be postponed, the parties know that they will not again have to mount another electioneering campaign.

Chairman’s Task Force on the NLRB, Interim Report and Recommendations 7-8 (1976) (unpublished report) (emphasis in original).

The Board enacted Rule 102.67(b) in 1977 in response to the recommendation of the Task Force. See 29 C.F.R. § 102.67 (b) (1983). The Rule provides that the filing of a request for review of a regional director’s decision will not act as a stay of an election and that if the Board has not acted on the request before the election, the ballots will be segregated and impounded pending decision. The majority concludes, relying on Hamilton Test Systems v. NLRB, 743 F.2d 136 (2d Cir.1984), 1 that the operation of this Rule deprives the employees of their section 7 rights and that instead the Board should have implemented a multiple-balloting procedure similar to that in a Globe election. While recognizing the problems of delay, the majority concludes that it was of more importance that the employees be allowed to vote on both potential units, and that even if the election could not proceed as scheduled, “[t]he additional time required to explain the Globe procedure and its purpose to the voting employees would be well spent.”

The majority’s approach would cause precisely the delay that the Task Force sought to eliminate. The election’s momentum would be broken and the parties would have to mount another campaign. In addition, in contrast to the Globe procedure there is no express provision in the Act mandating an additional election in a case such as this. Cf NLRA § 9(b)(1) & (2), 29 U.S.C. § 159 (b)(1) & (2). And “[w]e are not authorized to bind the Board in ways not mandated by Congress.” NLRB v. Action Automotive, Inc., — U.S. ---, 105 S.Ct. 984, 989 , 83 L.Ed.2d 986 (1985) (upholding Board rule excluding from bargaining unit employees who are relatives of management). Moreover, the Task Force serves merely in an advisory capacity, Task Force Report at 1, and it did not require the Board to implement a Globe -type multiple-ballot election. Task Force Report at 8.

It may be that the Board’s rule providing for segregation and impounding of ballots is not ideal for every case:. “However, we do not make labor policy under § 9(b); Congress vested that authority in the Board.” Action Automotive, 105 S.Ct. at 988 . In making the decision to require multiple ballots, the majority usurps the Board’s function to make that determination. The Board properly exercised its discretion by balancing the interest in avoiding delay against the speculative possibility of vote changes and by deciding that avoiding delay was the more weighty concern. Moreover, it is important to note that if the Board’s rule operates to deprive employees of their free choice, they are not without remedy. If the majority of the employees no longer wish to be represented by the union certified by the Board, they may file a decertification petition. See NLRA § 9(c)(l)(A)(ii), 29 U.S.C. § 159 (c)(l)(A)(ii).

In the final analysis, “the issue here resolves into the proper allocation of institutional responsibility between an administrative agency and a reviewing court____' [T]he agency must make judgments based on available knowledge. This is a difficult task and accqunts in part for the decision of Congress to entrust the Board ‘with a wide degree of discretion____’” NLRB v. Savair Manufacturing Co., 414 U.S. 270, 289-90 , 94 S.Ct. 495, 504 , 38 L.Ed.2d 495 (White, J., dissenting) (quoting A.J. Tower, 329 U.S. at 330 ). Rule 102.67(b) is a reasonable approach to dealing with the seri *1305 ons problem of delay in conducting representation elections. We should yield to the Board’s reasonable interpretation and applications of the Act. Action Automotive, 105 S.Ct. at 988 ; NLRB v. City Disposal Systems, Inc., 465 U.S. 822 , 104 S.Ct. 1505, 1510 , 79 L.Ed.2d 839 (1984).

. While reluctant to create a split between circuits unnecessarily, I am unable to approve the Second Circuit's interference with the Board’s autonomy in conducting elections.