# Petition for Writ of Certiorari — National Posters, Inc. v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1026

## Text

E Supreme Court, U.S, |

89-914 |.

& as DEC 11 1989
=a JOSEPH F. SPANIOL, UR,
CLERK
Pe
IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

NATIONAL POSTERS, INC., AND NATIONAL LITHO,
A DIVISION OF NATIONAL POSTERS, INC.,

Petitioner,
v.

NATIONAL LABOR RELATIONS BOARD,
Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MAURICE BASKIN *
VENABLE, BAETJER, HOWARD
& CIVILETTI
1301 Pennsylvania Avenue, N.W.
Suite 1200
Washington, D.C. 20004
(202) 662-4300

Attorneys for Petitioner

Date: December 11,1989 * Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

ul o—.
= = > i S ~~ a — ~~ —_ ane rs a res -

QUESTIONS PRESENTED

1. Whether This Court Should Resolve a Conflict
Within the Circuits Concerning the Proper Standard for
the Enforcement of Bargaining Orders Issued by the
National Labor Relations Board, Where the Board Has
Failed to Consider Or Properly Address the Effects of
Changed Circumstances Resulting From the Board’s Own
Unexcused Delays In Processing A Case.

2. Whether the Board’s Bargaining Order in the Pres-
ent Case Should Be Enforced.

(i)

ii
LIST OF PARTIES

The present Petitioner, Nationa] Posters, Inc. and
National Litho, a Division of National Posters, Inc., was
party to a final judgment of the United States Court
of Appeals for the Fourth Circuit from which certiorari
is being sought.

In National Posters, Inc. v. NLRB, 855 F.2d 175 (4th
Cir. 1989) (National Posters II), and 720 F.2d 13858
(4th Cir. 1983) (National Posters I), National Posters,
Inc. was a petitioner and cross-respondent and the Na-
tional Labor Relations Board was a respondent and cross-
petitioner. Local 61-C of the Graphic Communications
international Union intervened in National Posters II.

1 Pursuant to Rule 28.1 Petitioner National Posters, Inc. states
that it is affiliated with National Litho, National Graphics, Inc.
National Printing Prep, Inc., and National Decal, none of which are
publicly held or publicly traded corporations,

TABLE OF CONTENTS

QUESTIONS PRESENTED WWW... eeeeee eee eeeceeeeeeceeeseees
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REASONS FOR GRANTING THE WRIT ....................
I. This Court Should Resolve a Conflict Within the

Circuits Concerning the Proper Standard for
the Enforcement of Bargaining Orders Issued
By the National Labor Relations Board, and
Should Set Aside the Bargaining Order Here,
Where the Board Has Failed To Consider or
Properly Address the Effects of Changed Cir-
cumstances Resulting From the Board’s Own
Unexcused Delays in Processing a Representa-
tion Case ............... elcleecdeliaes RS Cand

A. The Decision of the Court Below Conflicts
With Numerous Holdings in Other Circuits
Which have Declined to Enforce Bargaining
Orders in Similar or Less Compelling Cir-
ALE RE a SRE NSS Es 79 Peat bc a

B. The Court Below has Misapplied the Hold-
ing of this Court in NLRB v. Financial In-
stitution Employees and has Erroneously
Failed to Considered Principles of Equity in
Enforcing the Board’s Order ..........................

C. This Case Raises an Important and Continu-
ing Issue in a Posture Which is Ripe for
Resolution by This Court ........0.0000000000000000...

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11

13

18

20
22

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iv

TABLE OF AUTHORITIES
Cases Page

American Cable Systems, Inc., 427 F.2d 446 (5th
Cir. 1970), cert. denied, 400 U.S. 957 (1970)... 13
American Federation of Labor v. NLRB, 308 U.S.

Sie aaa ar IPAS econo in Ane <= ce 21
Bridgeport Fittings, Inc. v. NLRB, 877 F.2d 180

CO Si I oa ciiccsceceestredacsentncaapeaienemmmaisnaiates 17
Brooks v. NLRB, 348 U.S. 96 (1954)......0000..200000.... 13, 18

Clark’s Gamble Corp. v. NLRB, 422 F.2d 845 (6th

Cir. 1970), cert. denied, 400 U.S. 868 (1970)... 18, 16
Ford Motor Co. v. NLRB, 305 U.S. 364 (1939)... 19
Local 28, Sheetmetal Workers Int’! Assn. v. EEOC

I ir Ce anaeawiicsacasesiccoeiactestnaecee 7
Mosey Mfg. Co. v. NLRB, 701 F.2d 610 (7th Cir.

sais cat atin once sadinceab aed ceaaadanncimamenincaiiadeis 13, 18
National Posters, Inc. v. NLRB, 720 F.2d 1358

CI FN: SII sosccscics cs ces agessesushaaeadiieieentiactounoans 1, 4, 6, 7, 10
National Posters, Inc. v. NLRB, 885 F.2d 175

CI A IED sack sscaccsesscttinisesipubncieaeinepacabiaitabaaitci akan 1, 4, 10
NLRB v. Conn. Foundry Co., 688 F.2d 871 (2d

(I ce Se ea ee 13, 15, 18
NLRB v. Financial Inst. Employees, 475 U.S. 192

| * TRIAS EEO Ras aarnelea ceeds sb res Sa nei Pema 12, 18, 19, 20
NLRB v. H.P. Hood, Ine., 496 F.2d 515 (1st Cir.

I icc ni ccusmpaccsdn coh dissed cheereiamaateaiicagiaasiadiebanadhiieaenaere 13, 14
NLRB v. Kaiz, 869 U.S. 736 (1962)........................ 18
NLRB v. Koenig Iron Works, 856 F.2d 1 (2d Cir.

» EA ERA EI IP MT Maat a cea a 21
NLRB v. Marion Rohr Corp., 714 F.2d 228 (2d

I ia eae 18
NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2d Cir.

|e eth ELS at AB RE RR Ar Er LRN OAR AS EERIE 13
NLRB v. Pace Oldsmobile, 739 F.2d 108 (2d Cir

BO Sic sich hosctiatane wilted sda bacentaalhcs duit cpiliairiaeadbldaade swedeus 18
NLRB v. Ship Shape Maintenance Co., Inc., 474

pb ei 2 oa & SR | |, | SRaRUMNeCemn cree en eee 16

NLRB v. Star Color Plate Service, 843 F.2d 1507
(2d Cir. 1988), cert. denied, 109 S. Ct. 81

v

TABLE OF AUTHORITIES—Continued

Page
NLRB v. Triplex Mfg. Co., 701 F.2d 703 (7th Cir.
| OR IMS Merete nari ae ant COAST FRR Clr EF aby Sry 13, 14, 18
NLRB v. Western Temporary Services, 821 F.2d
i Be Ft RR | PRPC me ere irre see nnanks 17
Peoples Gas System, Inc. v. NLRB, 629 F.2d 35
CEE a, SII sracesstessdcctucchcanitiiasineninetescnitea thie 13, 15, 17
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146
f. _ |) RRC resents gt SEH CBR AP SINT 21
St. Regis Paper Co. v. NLRB, 674 F.2d 104 (1st
OR I stich cccietsitiininrprtaeichciecn sabia eee ate 14

St. Regis Paper Co., 285 NLRB No. 39 (1987)....9, 14-15

Statutes

Se AAG Se NE OP ccntirinsnicenasedebonacecereenbndcionamiesooneaiaa 1
Fr ee Ey isiagieteocereen cere enctaseacipensanonmemnaddat 2
RP Se eh , SRR Oemeiee eestor een 2
Sr SNe te IE aissicihrecnencnevicenscinn sch neccincbahedideabeoanrtenine 2
ee ae Oe i ietninacsinttirnecccrcseicinnsspsoeesrnnine 3, 13
FF EE er adctitrsesccncttnioccttecaneaacnpnblacenadamanae 3
Be a i IONE Faceted orcessoceciinccncecpendadsduomigiansnsiuianii 4

Other Authorities

1B J. Moore, J. Lucas & T. Currier, Moore’s Fed-
Gvel Frectiee CHG TEE: TOD ncccveniccenccecicssenrceesns 7

IN THE

Siytreme Court of the United States

OCTOBER TERM, 1989

No.

NATIONAL POSTERS, INC., AND NATIONAL LITHO,
A DIVISION OF NATIONAL POSTERS, INC.,

. Petitioner,

NATIONAL LABOR RELATIONS BOARD,
Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

OPINIONS BELOW

Certiorari is being sought from a final judgment of
the United States Court of Appeals for the Fourth Cir-
cuit. The decision of that court dated September 13,
1989 (National Posters II), is reported at 885 F.2d 175.
(App. la). A previous decision of the same court in the
same matter (National Posters I) is reported at 720
F.2d 1358 (4th Cir. 1983). (App. 14a).

JURISDICTION

The United States Court of Appeals for the Fourth
Circuit entered final judgment in this case on September
13, 1989. Jurisdiction to hear this case is conferred on
this Court by 28 U.S.C. § 1254(1).

2

STATUTORY PROVISIONS
The following provisions are pertinent to this case:
29 U.S.C. § 157 provides in pertinent part:

Employees shall have the right to self-organiza-
tion, to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have
the right to refrain from any or all of such activi-
ties...

29 U.S. § 158(a) (5) provides:

It shall be an unfair labor practice for an em-
ployer—(5) to refuse to bargain collectively with
the representatives of his employees, subject to the
provisions of Section 159(a) of this title.

29 U.S.C. § 159 provides in pertinent part:

(a) Representatives designated or selected for the
purposes of collective bargaining by the majority of
the employees in a unit appropriate for such pur-
poses, shall be the exclusive representatives of all
the employees in such unit for the purposes of col-
lective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment:

* * * *

(c) (1) Whenever a petition shall have been
filed, in accordance with such regulations as
may be prescribed by the Board

(B)(a) .. . the Board shall investigate
such petition and if it has reasonable cause
to believe that a question of representation
affecting commerce exists shall provide for
an appropriate hearing upon due notice.

3 See

29 U.S.C. § 160(c) provides in pertinent part:

The testimony taken by such member, agent, or
agency or the Board shall be reduced to writing and
filed with the Board. Thereafter, in its discretion,
the Board upon notice may take further testimony
or hear argument. If upon the preponderance of the
testimony taken the Board shall be of the opinion
that any person named in the complaint has engaged
in or is engaged in any such unfair labor practice,
then the Board shail state its findings of fact and
shall issue and cause to be served on such person an
order requiring such person to cease and desist from
such unfair labor practice, and to take such affirma-
tive action including reinstatement of employees with
or without back pay, as will effectuate the policies
of this subchapter: ...

29 U.S.C. § 160(e) provides in pertinent part:

Tne Board shall have power to petition any court
of appeals of the United States, or if all the courts
of appeals to which application may be made are in
vacation, any district court of the United States,
within any circuit or district, respectively, wherein.
the unfair labor practice in question occurred or
wherein such person resides or transacts business,
for the enforcement of such order and for appropri-
ate temporary relief or restraining order, and shall
file in the court the record in the proceedings, as
provided in section 2112 of Title 28. Upon the filing
of such petition, the court shall cause notice thereof
to be served upon such person, and thereupon shall
have jurisdiction of the proceeding and of the ques-
tion determined therein, and shall have power to
grant such temporary relief or restraining order as
it deems just and proper, and to make and enter a
decree enforcing, modifying and enforcing as so
modified, or setting aside in whole or in part the
order of the Board.

4

29 U.S.C. § 160(f) provides in pertinent part:

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 United States court of appeals in the circuit
wherein the unfair labor practice in question was
alleged to have been engaged in or wherein such per-
son resides or transacts business, or in the United
States Court of Appeals for the District of Colum-
bia, by filing in such a court a written petition pray- —
ing that the order of the Board be modified or set
aside. A copy of such petition shall be forthwith
transmitted by the clerk of the court to the Board,
and thereupon the aggrieved party shall file in the
court the record in the proceeding, certified by the
Board, as provided in section 2112 of Title 28. Upon
the filing of such petition, the court shall proceed in
the same manner as in the case of an application
by the Board under subsection (e) of this section,
and shall have the same jurisdiction to grant to the
Board such temporary relief or restraining order as
it deems just and proper, and in like manner to
make and enter a decree enforcing, modifying, and
enforcing as so modified, or setting aside in whole
or in part the order of the Board;...

STATEMENT OF THE CASE

This petition for writ of certiorari seeks plenary re-
view of the Fourth Circuit’s decision in National Posters,
Inc. v. NLRB, 885 F.2d 175 (4th Cir. 1989) (National
Posters II) (App. 1a), and 720 F.2d 1358 (4th Cir. 1983)
(National Posters I) (App. 14a). In National Posters II,
the Fourth Circuit denied a petition for review of a bar-
gaining order issued by the National Labor Relations
Board, eight years after the disputed election on which
the bargaining order was based. The Fourth Circuit
granted enforcement of the Board’s order, notwithstand-
ing the Board’s refusal to consider the effects of changed
circumstances resulting from the Board’s own unexcused
delays in processing the case.

‘nmienenihseiiniietaiaeeenii eaten

5

A. The Board’s Initial Failure To Hold a Post-Election
Hearing.

This action began on December 15, 1981, when the em-
ployees of National Posters, Inc., and National Litho (the
“Petitioner” or the “Company’’), voted in a secret ballot
election to decide whether they would be exclusively repre-
sented by Local 61 of the Baltimore Printing Pressman
and Assistants Union (“Local 61”). The principal issue
in the campaign was the Company’s decision to cut in-
surance benefits due to recent economic losses. The tally
of ballots showed that 24 employees voted for Local 61,
21 voted against the union and four ballots were chal-
lenged, a number sufficient to affect the results of the
election. (App. 3la).

Petitioner challenged the eligibility of one of the voters,
contending that he was ineligible due to his seasonal,
temporary status. Petitioner also filed objections to the
results of the election, contending that Local 61 had com-
mitted misrepresentations so serious as to improperly af-
fect the outcome of the election. (App. 3la). Specifically,
the Company alleged that in the week prior to the election,
Union representatives falsely told numerous employees
that the Company President had spent large sums of
money on gifts for his children, including the purchase of
a large farm for his daughter. Petitioner further alleged
that the Union had materially misrepresented its pension
plan and health and welfare benefits as well as the
amount of the union’s dues. The Petitioner supported its
allegations with sworn affidavits.

On March 16, 1982, without holding a hearing, the
Regional Director for Region 5 of the National Labor Re-
lations Board (the “Board”) issued a Report on Chal-

_ lenges and Objections. The Board overruled the Com-
pany’s challenge to the ballot of the allegedly seasoral,
temporary voter, notwithstanding the Company’s evidence
of the employee’s seasonal status. The Board also over-

oo 6
ruled the Company’s objections, without passing on the
truth of the Company’s evidence, finding that the allega-
tions were not sufficient to justify setting aside the elec-
tion. (App. 3la).

After opening two of the challenged ballots, the revised
tally became 25 to 22 in favor of Local 61, with the two
remaining ballots challenged by the Union left unopened.
Accordingly, on July 14, 1982, the Regional Director is-
sued a Certification of Representation to Local 61 for the
unit consisting of “all production and maintenance em-
ployees including truck drivers’ employed by the Peti-
tioner at its two plants. Petitioner refused to bargain in
order to test the validity of the certification. (App. 66a).

B. The Court of Appeals’ Remand.

Petitioner filed a Petition for Review of the Board’s
subsequent Bargaining Order with the United States
Court of Appeals for the Fourth Circuit. (App. 50a).
Petitioner contended, inter alia, that the Board’s failure
to hold a hearing or set aside the election on the misrep-
resentation issues deviated without explanation from es-
tablished Board law. Petitioner further argued that the
Board’s failure to hold a hearing on Petitioner’s chal-
lenged ballot was arbitrary and capricious.

The Court of Appeals agreed with Petitioner as to the
second issue and vacated the Board’s decision, finding that
the Board violated the Act by failing to conduct a hear-
ing on Petitioner’s challenge to the ballot of its temporary
worker. National Posters I, 720 F.2d 1358 (4th Cir.
1983). (App. 14a). With regard to the campaign mis-
representation issue, the court did not reach the question
of whether the Board misapplied its previous policy. By
the time the court heard the case, the Board had changed
its policy on election campaigns altogether, allowing either
side to commit misrepresentations with impunity. The
Court of Appeals permitted the Board’s retroactive ap-

7

plication of its new policy on misrepresentations to the
facts of this case. (App. 26a).

C. The Board’s Belated Hearing and Subsequent Unex-
cused Delay.

Pursuant to the Court’s remand, the Board ordered a
hearing on the issue of whether the temporary worker
should have been considered eligible to vote. (App. 14a).
The Board also ordered that the same hearing consider
the status of the two remaining challenged ballots. Said
hearing was held on June 12, 20 and 21, 1984, before the
Honorable Bernard Ries, Administrative Law Judge. On
November 23, 1984, Judge Ries ruled that the temporary
employee and one other challenged voter should be counted
as eligible voters while the remaining ballot should not be
counted. (App. 66a).

Petitioner filed timely exceptions to the judge’s decision.
The Board failed to act on these exceptions, however, for
approximately two-and-one-half years. Finally, without
any excuse or explanation for the delay, the Board affirmed
the judge’s findings concerning all challenged ballots on
February 4, 1987. National Posters, Inc., 282 NLRB No.
148 (1987). (App. 62a).

D. Post-Election Changes in the Union Seeking Repre-
sentation.

On or about July 1, 1983, the International Printing
and Graphic Communications Union (the “IPGCU”’), the
international governing body of Local 61, merged with the
Graphic Arts International Union (the “GAIU”’’) to form
the Graphic Communications International Union (the

2 Because the court in National Posters I remanded the case for
further proceedings, its retroactive application of the Board’s new
misrepresentation policy did not constitute a final judgment and is
subject to review by this Court in the present proceeding. See Local
28, Sheet Metal Workers’ International Assn. v. EEOC, 478 U.S.
421, 444, n.24 (1986); see also 1B J. Moore, J. Lucas & T. Currier,
Moore's, Federal Practice © 0.404 at 141 (2d ed. 1988).

8

“GCIU”). (App. 63a). Local 61 subsequently altered its
bylaws, officers, dues and office location, among other
things, and became Local 61-C of the GCIU (“Local
61-C”). (App. 119a). The Union failed to notify either
the Petitioner or the Board of the changes in its organiza-
tion and did not seek amendment of its certification.

After subsequently learning of these events, however,
Petitioner moved to reopen the record, contending inter
alia that the post-merger union lacked continuity with
the union on which the employees voted due to the sub-
stantial changes which had taken place at both the local
and international levels of the union. (App. 63a). The
Board granted Petitioner’s motion to reopen the record,
in part, in its Order of February 4, 1987, holding as
follows:

We find, in agreement with the [Petitioner] that a -
reopening of the record in this case is necessary to
determine if the merger between International Print-
ing and Graphics Union [sic], and Graphic Arts In-
ternational Union, so substantially changed Local
#61, as to raise a question concerning its continued
status as the certified bargaining representative of
the Petitioner’s unit employees.

(App. 68a). A hearing was held before Judge Ries on
July 29, 1987 on the union merger issue.

In the hearing, Petitioner presented additional evi-
dence of changes in the union’s local and international
structure, as well as the level of autonomy of the local
vis-a-vis the new international entity. Nevertheless, in
his Second Supplemental! Decision of February 11, 1988,
the judge found that “the 1983 merger of the Interna-
tional Unions did not cause a substantial change in the
identity of Local 61-C and a consequent lack of continuity
of representation by Local 61-C with respect to the | Pe-
titioner’s] employees in the certified unit.” (App. 156a).
He therefore recommended that the Board’s original
bargaining order be reissued.

9

E. Failure of the Board to Consider Evidence of Substan-
tial Change in the Bargaining Unit.

Petitioner filed exceptions to the judge’s second de-
cision and a second Motion to Reopen the Record, or in
the alternative, for Reconsideration, so as to present new
evidence of changes in the bargaining unit in light of the
Board’: recent decision in St. Regis Paper Co., 285 NLRB
No. 39 (August 10, 1987). (App. 119a). The Peti-
tioner’s evidence showed that 18 of the original 55 em-
ployees had left the bargaining unit since 1981, that the
total number of employees had expanded through new
hires to 137, and that only thirty-seven of the then cur-
rent 137 employees were employed at the time of the elec-
tion. In addition, none of the ten on-call employees em-
ployed at the time of the election worked any longer for
Petitioner. (App. 157a).

Petitioner further contended that the issues on which
the union won its disputed victory in 1981 were no
longer relevant to the existing complement of employees.
Finally, Petitioner argued that the present employees
should not be compelled to accept Local 61-C as their
exclusive representative based on a disputed vote by a
much smaller group of different employees pertaining to
a different union campaigning on different issues and
relying on material misrepresentations. (App. 119a).

Notwithstanding this evidence, on June 30, 1988, the
Board entered its Supplemental Decision and Order re-
jecting Petitioner’s contentions and refusing even to
consider the effect of changed circumstances on the em-
ployees’ choice of representative. (App. 50a). The Board
ordered that the Petitioner bargain with Local No. 61-C
and reissued its prior Order of December 10, 1982. On
August 22, 1988, the Petitioner filed a petition with the
Fourth Circuit to review and set aside the Orders of
the Board.

10

F. The Court of Appeals’ Final Decision.

On September 13, 1989, in National Posters II, the
Fourth Circuit granted enforcement of the Board’s order.
(App. la). The Court of Appeals found that the Board’s
findings with regard to the challenged ballot were sup-
ported by “substantial evidence’ and that the Union’s
- reaffiliation, in and of itself, had not so fundamentally
altered its identity as to raise a new question concern-
ing representation. ‘App. 7a, lla). Finally, the court
refused to require the Board to consider the Petitioner’s
proffered evidence of change in the bargaining unit re-
sulting from the Board’s own delay in processing the case.
(App. 13a).

With regard to the issue of unusual delay, the Court of
Appeals acknowledged that other circuit courts have de-
clined to enforce NLRB bargaining orders because of
such delay, attributable to the NLRB, in the resolution
of election disputes. (App. lla). The court further
conceded that “in some cases, courts have noted that
employee turnover during such delays may call into ques-
tion the continuing validity of close election results.”
(Id.). The court also recognized that in most of these
decisions, “the refusal to enforce bargaining orders was
justified on traditional principles of equity.” (Jd.). Fi-
nally, the court noted that “the NLRB’s disposition of
this case has been no model of administrative efficiency.
Almost two and a half years elapsed after the first hear-
ings on... voter eligibility and the NLRB’s decision.

3 Petitioner continues to challenge the correctness of each of the
lower court’s rulings, including those with regard to the challenged
ballot, the change in the union’s identity, and the unusual changed
circumstances resulting from the Board’s delay. In addition, con-
trary to the Court of Appeals’ assertion, Petitioner has not “‘aban-
doned” its claim from National Posters I that union misrepresenta-
tions unfairly prejudiced the election. (App. 3a, n.1). Rather, the
court improperly restricted Petitioner to bringing forward new
evidence sufficient to meet the criteria of the Board’s new, overly
permissive policy, which Petitioner has never claimed to possess.

11

No good reason for this delay has been offered by the
General Counsel.” (App. 12a, n.5).

Nevertheless, the Fourth Circuit held that the passage
of eight years and substantial employee turnover were
insufficient to deny enforcement of the Board’s order.
(App. 12a). Furthermore, the court expressly declined
to consider other equitable considerations present in this
case, despite the fact that courts in other circuits have
set aside NLRB bargaining orders in less egregious cir-
cumstances. (/d.).‘

REASONS FOR GRANTING THE WRIT

I. This Court Should Resolve a Conflict Within the Cir-
cuits Concerning the Proper Standard for the Enforce-
ment of Bargaining Orders Issued by the National
Labor Relations Board, and Should Set Aside the Bar-
gaining Order Here, Where the Board Has Failed to
Consider Or Properly Address the Effects of Changed
Circumstances Resulting From the Board’s Own Unex-
cused Delays In Processing A Representation Case.

This case involves enforcement of a bargaining order
issued by the National Labor Relations Board based on
a disputed representation election which took place eight
years ago. Because of the Board’s erroneous failure to
hold a hearing immediately following the election and its
subsequent two and one-half year delay in deciding the
case after a remand by the Court of Appeals, changed cir-
cumstances now exist under which enforcement of the
Board’s bargaining order would constitute a violation of

4 Among the factors not considered by the court below was the
extent to which the union’s electoral claim to majority status was
improperly dependent upon campaign misrepresentations. Also, the
court failed to consider whether the union’s new affiliation, even if
not sufficient in and of itself to raise a question of representation,
might constitute a sufficiently unusual circumstance in combination
with the other existing equitable factors, so as to justify denying
enforcement of the bargaining order.

12

the National Labor Relations Act. Specifically, massive
employee turnover and expansion of the bargaining unit,
combined with changes in the labor organization seek-
ing representation, and the tainted results of the original
election, raise a new question of representation. It can
no longer be said that a majority of the Petitioner’s pres-
ent employees wish to designate the present union as their
exclusive bargaining representative. Thus, the Board’s
bargaining order ignores or violates the wishes of Peti-
tioner’s employees in violation of the Act.

As is further demonstrated below, the Court of Ap-
peals’ decision conflicts directly with decisions in at least
six other circuits which have held that the Board is re-
quired to consider the effects of an unreasonable passage
of time and other equitable factors on the issuance of a
bargaining order. In addition, the court below reached
its holding by misapplying this Court’s decision in NLRB
v. Financial Institution Employees, 475 U.S. 192 (1986),
so as to preclude application of principles of equity to the
enforcement of Board bargaining orders, in further con-
flict with other courts. Finally, the court below mis-
apprehended the scope of the unusual changes and equita-
ble considerations affecting the bargaining unit in the
present case in reaching its erroneous result.

The effect of the Court of Appeals’ decision is to ignore
the Act’s fundamental goal of effectuating the wishes of
employees. In the guise of deterring alleged employer
intransigence in litigating post-election issues, the court’s
holding ignores the more important objective of imposing
an exclusive bargaining representative only on a work-
force whose majority desires such representation. In ad-
dition, the court’s decision fails to deter the Board from
engaging in similar inexcusable delays in the future.
It is vital that this Court act to resolve the conflict
within the circuits by recognizing that, at least in such
egregious and unusual circumstances as are present here,
enforcement of NLRB bargaining orders may not best

13

effectuate the policies underlying the Act. See 29 U.S.C.
§ 160(c).

A. The Decision of the Court Below Conflicts With
Numerous Holdings in Other Circuits Which have
Declined to Enforce Bargaining Orders in Similar
or Less Compelling Circumstances.

Courts of appeals in no fewer than six other circuits
have held that the Board is required to consider the ef-
fects of an unreasonable passage of time and other equita-
ble factors on the issuance of a bargaining order. Recog-
nizing the Act’s mandate that the wishes of the employees
themselves should be of paramount concern, these courts
have declined to enforce similar NLRB bargaining orders,
in direct conflict with the decision below. See Mosey Mfg.
Co. v. NLRB, 701 F.2d 610 (7th Cir. 1983); NLRB v.
Triplex Mfg. Co., 701 F.2d 703 (7th Cir. 1983); NLRB
v. Connecticut Foundry Co., 688 F.2d 871 (2d Cir. 1982) ;
NLRB v. Nixon Gear, lic., 649 F.2d 906 (2d Cir. 1981) ;
Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C. Cir.
1980); NLRB v. H.P. Hood, Inc., 496 F.2d 515 (1st Cir.
1974) ; American Cable Systems, Inc., 427 F.2d 446 (5th
Cir. 1970), cert. denied, 4900 U.S. 957 (1970); Clark’s
Gamble Corp. v. NLRB, 422 F.2d 845 (6th Cir. 1970),
cert. denied, 400 U.S. 868 (1970).°

In Mosey Mfg. Co. v. NLRB, the Court of Appeals for
the Seventh Circuit declined to enforce a Board bargain-
ing order based upon a five and one half year delay fol-
lowing an election won by the union. There, as here,
the employer contended that the union’s victory was
tainted by union misrepresentations committed prior to
the election. There, too, the delay was caused primarily

5 See also Brooks v. NLRB, 348 U.S. 96 (1954), where, though not
presented with changed circumstances arising out of the Board’s
own delays, this Court affirmed that “unusual circumstances” could
justify a refusal to bargain even during the so-called “certification
year.” Id. at 98-99.

14

by the Board’s own indecision in resolving the post-
election dispute. The Court observed:

“In asking us to enforce its order the Board is ap-
pealing to our equitable powers [citation omitted].
. when a party asking a court to do equity has
strung out the proceedings to the point where the
Court cannot determine whether equitable relief
would achieve the legitimate purposes of the suit,
which in this case is to give a unit of [the employ-
er’s] workers the collective bargaining representative
of their choice, the court will withhold its assistance.
[citations omitted]. The best protection for these
workers’ freedom of choice would be a prompt new
election, which a remand would not accomplish.

Similarly, in NLRB v. Triplex Mfg. Co., 701 F.2d 703
(7th Cir. 1983), the Court of Appeals refused to enforce
a Board bargaining order or to remand the case for fur-
ther proceedings where “due to substantial employee
turnover in this relatively small unit, there is a serious
question as to whether a majority of current employees
desires representation by the union.” Jd. at 709. That
decision followed only a three-year delay by the Board.

Also directly on point, and in conflict with the decision
below, is NLRB v. H.P. Hood, Inc., 496 F.2d 515 (1st
Cir. 1974). There, the First Circuit Court of Appeals
found that a union had properly been certified after a
lengthy post-election dispute. The court nevertheless re-
manded to the Board for consideration of whether the
five year delay rendered bargaining inappropriate. The
court held: “[{WJle think fairness will be better served
than by immediately locking the parties into a lengthy
relationship on the basis of ancient events.” Jd. at 520.
See also St. Regis Paper Co. v. NLRB, 674 F.2d 104
(1st Cir. 1982), where the court similarly remanded a
long-delayed bargaining order for meaningful considera-
tion of changed circumstances.®

6 Following the First Circuit’s remand in St. Regis Paper Co.,
the Board agreed that the changes in the unit had been substantial

15

Two oft-cited cases in the Second Circuit have also
denied enforcement of Board bargaining orders under
similar circumstnaces. NLRB v. Connecticut Foundry
Co., 688 F.2d 871, 881 (2d Cir. 1982); and NLRB v.
Nixon Gear Inc., 649 F.2d 906, 914 (2d Cir. 1981). In
both of those decisions, the Second Circuit held that it
must “grant the relief that furthers the equitable prin-
ciples which govern judicial action”. NLRB v. Connecti-
cut Foundry Co., 688 F.2d at 881. Accordingly, the court
in both instances denied enforcement of NLRB bargain-
ing orders after disputed union electoral victories which
the Board had failed to resolve in an appropriate length
of time (4 years and 2 years respectively).

Another decision in conflict with the holding of the
court below is Peoples Gas System, Inc. v. NLRB, 629
F.2d 35 (D.C. Cir. 1980). There, the Court of Appeals
for the District of Columbia Circuit held that an em-
ployer who unlawfully withdrew recognition from a certi-
fied union should not be compelled to bargain with the
union after a five and one-half year delay caused by the
Board. The Court of Appeals held:

([Blargaining orders do not automatically flow from
a refusal to bargain if it is not clear that the em-
ployees desire the union as their representative. A
balance must be drawn in such cases between the
various purposes of the Act. For example, if the em-
ployer’s violation is deliberate and egregious enough,
the interest in deterrence of future violation may
override the employees’ wishes, especially if it is
likely that the workers’ rejection of the Union flows
from the company’s violations.

When the violation is less substantial and was com-
mitted in good faith the interest in deterrence is less
substantial as well. Correspondingly, the employees’

enough to render a bargaining order inappropriate, even though all
of the changes occurred after the union’s certification of majority
status. 285 NLRB No. 39 (1987).

16

rights to decide whether they want Union representa-
tion, and by which Union, should be given greater
weight. The Board should make findings as to the
likelihood of infringement of those rights and explain,
if it should conclude that a bargaining order is never-
theless necessary, why other remedies would not suf-
fice and why other purposes of the Act must outweigh
the employees’ rights.

629 F.2d at 47.

Finally, several court decisions have declined to en-
foree NLRB bargaining orders even where the employer
has committed egregious unfair labor practices not pres-
ent here. Thus, in Clark’s Gamble Corp. v. NLRB, 422
F.2d at 847, the Sixth Circuit set aside a bargaining or-
der after a two-year delay caused by the Board in ruling
upon unfair labor practices committed by the employer.
The court stressed the importance of determining and im-
plementing employee choice in the selection of an exclu-
sive bargaining agent and concluded that it would be con-
trary to the intentions of the Act to enforce a Board
order which did not take into account evidence of high
employee turnover. See also, NLRB v. Ship Shape Main-
tenance Co., Inc., 474 F.2d 434 (D.C. Cir. 1972), where
the Court held:

Where a remedial order has the primary effect of ne-
gating the rights of current employees rather than
furthering them, it defeats, rather than effectuates,
the policies of the NLRA. In the instant case, the
enforcement of the Labor Board’s proposed bargain-
ing order would impose representation upon a cur-
rent unit of employees, the vast majority of whom
were neither employed by the Company at the time
of its unfair labor practice violation nor meaning-
fully affected by its commission. Such enforcement
would ignore the fact that the NLRA expressly pro-
tects the right of employees to refrain from organiza-
tional activity if they so desire.

17

As contrasted with these cases in which the courts have
set aside NLRB bargaining orders, some court decisions
have reached contradictory results. But no court of appeals
has enforced an NLRB bargaining order involving the
combination of equitable factors existing in the present
case. Those factors include eight years of delay, sub-
stantial employee turnover, substantial expansion of the
bargaining unit itself, fundamental change in the union
seeking representation, a close election in which union
misrepresentations may have determined the outcome, the
failure of the Board to conduct a statutorily required
hearing, and subsequent delay in the Board’s decision of
the case. Thus, in Bridgeport Fittings, Inc. v. NLRB,
877 F.2d 180 (2d Cir. 1989), the court declined to set
aside a bargaining order where there had only been three
and one-half years of delay and 50% employee turnover,
and no other equitable factors were present. See also
NLRB v. Western Temporary Services, 821 F.2d 1258
(7th Cir. 1987) (delay of only one-and-one half years).

In NLRB v. Star Color Plate Service, 843 F.2d at 1507
(2d Cir.), cert. denied, 109 S. Ct. 81 (1988), the Second
Circuit acknowledged that its enforcement of the Board’s
bargaining order “may impose a bargaining representa-
tive that is not wanted by a majority of employees and
... this result is contrary to the policies of the Act.”
Even so, contrary to the Court of Appeals below, the
Second Circuit at least required the Board to give actual
notice to the current employees of their statutory right
to petition for a decertification electon. 7d. at 150. While
this attempt at mitigation is wholly inadequate to remedy
the deficiencies of the Board’s bargaining order,‘ the fail-

7 Informing employees of their right to petition for a decertifica-
tion election provides little consolation to those employees when they
realize that they are precluded from filing any such petition for a
period of one year after the employer begins bargaining with the
union. See Peoples Gas System, Inc. v. NLRB, 629 F.2d at 45,
n.17. During that one year period, the parties may reach an agree-
ment which applies to all covered employees, which could bar a

18

ure of the court below to provide even this much relief
directly conflicts with the holding of the Second Circuit.®

B. The Court Below has Misapplied the Holding of
this Court in NLRB v. Financial Institution Em-
ployees and has Erroneously Failed to Considered
Principles of Equity in Enforcing the Board’s
Order.

No other court of appeals has held that enforcement of
a Board bargaining order in the face of unusual, changed
circumstances caused by NLRB delay is in any way con-
trolled by this Court’s decision in NLRB v. Financial
Institution Employees, 475 U.S. 192 (1986). Most of
the circuits, regardless of the outcome of their particular
cases, have held that challenges to NLRB bargaining
orders should be analyzed under principles of equity, in
order to determine whether “unusual circumstances” ex-
ist such as those allowed for in Brooks v. NLRB, supra.
See Mosey Mfg. Corp. v. NLRB, 701 F.2d at 617; see
also NLRB v. Pace Oldsmobile, 739 F.2d 108, 112 (2d
Cir. 1984); NLRB v. Marion Rohr Corp., 714 F.2d 228,
232 (2d Cir. 1983); NLRB v. Connecticut Foundry Co.,
688 F.2d at 881; NLRB v. Triplex Mfg. Co., 701 F.2d
at 709.

In the present case, however, the Court of Appeals
erroneously relied on certain dictum from this Court’s

decertification election for an additional three years. Jd. Alterna-
tively, the employer and the union could reach an impasse in
collective bargaining, resulting in a costly and disruptive strike, and
subjecting the employees to numerous pressures should they be
asked to cross union picket lines.

8 Nor does the lower court’s decision here draw any support from
this Court’s holding in NLRB v. Katz, 369 U.S. 736 (1962). In that
case, the Court held only that the mere existence of some delay,
without any other unusual circumstances, did not justify setting
aside a Board bargaining order in that particular case. The Court
was not presented with, and has never ruled on, the effects of the
types of equitable factors present in the instant case.

19

opinion in Financial Institution Employees, taking the
language out of its proper context in order to establish
a new standard for review of unlawfully delayed Board
bargaining orders. According to the Court of Appeals,
this Court’s passing reference to the requirements of
“objective considerations” supporting “loss of majority
status” somehow precludes appellate courts from consider-
ing unusual changed circumstances arising out of multi-
year Board delays. This view is clearly wrong and di-
rectly conflicting with other circuits. Therefore, review
by this Court is necessary, in order to prevent an errone-
ous and conflicting standard of review from being en-
forced.

NLRB v. Financial Institution Employees solely con-
cerned the question of whether the failure of a union to
allow non-member employees to vote on a proposed re-
affiliation raised a sufficient question of representation to
justify withdrawal of recognition of the previously certi-
fied or recognized union. None of the factors present
here, such as turnover, Board-sponsored delay, campaign
misrepresentations or otherwise disputed elections, were
considered by the Court or were otherwise at issue in the
Financial Institution Employees case. Therefore, no basis
existed for the court below to interpret that decision as
somehow precluding the courts of appeals from exercising
their equitable powers in connection with the enforce-
ment of Board bargaining orders generally. In this con-
nection, the Court of Appeals’ decision squarely conflicts
with each of the decisions cited above from the different
circuits, in that the other courts of appeals have tradi-
tionally considered equitable factors in ruling upon Board
orders.° |

9 See also Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939)
(“The jurisdiction to review rulings of the Labor Relations Board
is vested in a court with equity powers, and while the Court must
act within the bounds of the statute and without intruding upon the
administrative province, it may adjust its relief to the exigencies of
the case in accordance with the equitable principles governing
judicial action.”).

20

It should be noted that, even if the Financial Institu-
tion Employees standard adopted by the court below were
the correct one, the Court of Appeals decision would still
present a clear conflict among the circuits in need of res-
olution by this Court. This is because the court below
erroneously failed to find that the combined factors of
turnover, delay, change of union affiliation, and disputed
election, constituted “objective considerations that pro-
vide some reasonable for grounds for believing that the
union has lost its majority status,’ within the meaning
of Financial Institution Employees. Id. at 198."° In
other words, the present facts clearly meet the standard
for review set forth in this Court’s opinion to the extent
that the opinion establishes a new standard, which Peti-
tioner reiterates is not the case. In any event, the Court
of Appeals decision must be reversed because it purports
to remove equitable considerations of unusual changed
circumstances entirely from judicial consideration of
NLRB bargaining orders, which conflicts with the stand-
ard applicable in other circuits.

C. This Case Raises an Important and Continuing
Issue in a Posture Which is Ripe for Resolution by
This Court.

As has already been shown, the issue of the effects of
Board-sponsored delay upon NLRB bargaining orders is
a recurring one which has divided the circuits over an
extended period of time. Absent review and reversal by
this Court, together with announcement of a clear stand-
ard for review, the policy favoring employee free choice
will be frustrated and the Board will have no incentive
to avoid those unnecessary delays which result in bar-

10 The court below erroneously attempted to characterize this case
as involving the issue of employee turnover “without more.” (App.
12a). The court thereby failed to consider in combination the
additional factors relating to the dramatic expansion in the size of
the unit itself, the disputed nature of and misrepresentations con-
nected with the close election, and the union’s change in affiliation.

ee ee eT nee a ae Cee ee

T Pbiits X

a

21

gaining representatives being imposed upon employees
who no longer have any interest in such representation.
The competing policy considerations involved in deciding
this issue are uniquely suited to resolution by this Court.

Moreover, the facts of this case are better suited than
most such cases for certiorari review. The employer here
has committed no unfair labor practices other than the
initial refusal to bargain, which has been held to be a pre-
requisite to obtaining judicial review.’ The length of
time which has passed since the election on which the
bargaining order was based is substantial (eight years).
Indeed, this delay is greater than the vast majority of
the cases in which Board bargaining orders have been
challenged.'*? The delay is principally the responsibility
of the Board, which first failed to conduct a statutorily
required hcaring, and then failed to issue its decision on
remand for two-and-one-half years.

The Union also lacks “clean hands” in the matter, hav-
ing failed to inform either the Board or the Employer of
its reaffiliation in a timely manner. The Petitioner also
contends that the Union committed campaign misrepre-
sentations in order to achieve its disputed electoral vic-
tory, a contention which the court below avoided by er-
roneously allowing the Board to apply new policies retro-
actively to this case.

Finally, the amount of turnover which has occurred
here has been substantial. Over 73% of the current work
force has become employed since the time of the election. ©
Moreover, the expansion in the size of the unit has been

11 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941);
American Federation of Labor v. NLRB, 308 U.S. 401 (1940).

12 Petitioner is aware of only one similar case in which a longer
period transpired from the refusal to recognize a union to the court
decision on enforcement of a subsequent bargaining order. NLRB
v. Koenig Iron Works, 856 F.2d 1 (2d Cir. 1988). In that case,
following a twelve year delay, the court of appeals denied enforce-
ment of the Board’s bargaining order.

22

equally dramatic, growing by over 200%. Thus, no better
vehicle could be presented for this Court to resolve the
important issues presented herein.

CONCLUSION

For the reasons set forth above, and upon the entire
record herein, Petitioner respectfully asks this Court to
issue a writ of certiorari to review the judgment and
opinions of the United States Court of Appeals for the
Fourth Circuit.

Respectfully submitted,

MAURICE BASKIN *
VENABLE, BAETJER, HOWARD
& CIVILETTI
1301 Pennsylvania Avenue, N.W.
Suite 1200
Washington, D.C. 20004
(202) 662-4300

Attorneys for Petitioner
Date: December 11,1989 * Counsel of Record

APPENDIX

APPENDIX
TABLE OF CONTENTS

Document

National Posters, Inc., and National Litho., a Di-
vision of National Posters Inc. v. NLRB 885
FO STE tae Cae. SOE pire

National Posters, Inc. and National Litho, a Di-
vision of National Posters, Inc. v. NLRB, 720
FDe TS CGR CAR, Be cnseccanecicesiomsinn on

Report on Challenges & Objections (March 16,
QOD no ciceiseeciccehanconennth aden pains tania tame

National Posters, Inc., 265 NLRB No. 115 (Dec.
10, 1982) (Reissued June 30, 1988) .....................

National Posters, Inc., 282 NLRB No. 148 (Feb.
4, 1987), including Supplemental Decision of
Administrative Law Judge (Nov. 23, 1984)......

National Posters, Inc., 289 NLRB No. 58 (June 30,
1988), including Second Supplemental Decision
of Administrative Law Judge (Feb. 11, 1988)..

Affidavit filed with NLRB in 1988

Page

la

l4a

3la

50a

62a

119a

la

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 88-2602

NATIONAL POSTERS, INC.; NATIONAL LITHO,
A DIVISION OF NATIONAL POSTERS, INC.,
Petitioners,

versus

NATIONAL LABOR RELATIONS BOARD,
Respondent,

BALTIMORE GRAPHIC COMMUNICATIONS UNION,
LOCAL No. 61-C
Intervenor.

On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor
Relations Board
(Board Case No. 5-CA-14585)

Argued: April 11, 1989 Decided: September 13, 1989

Before ERVIN, Chief Judge, and PHILLIPS and
SPROUSE, Circuit Judges.

2a

Maurice Baskin (Rosemarie Schmidt, VENABLE,
BAETJER, HOWARD & CIVILETTI on brief) for Peti-
tioner. Marsha 8S. Berzon (Jeffrey B. Demain, ALT-
SHULER & BERZON; Laurence Gold; Sandra Hughes,
O’DONNELL, SCHWARTZ, & ANDERSON on brief)
for Intervenors. Joseph Henry Bornong (Rosemary M.
Collyer, General Counsel; Robert EK. Allen, Associate Gen-
eral Counsel; Aileen A. Armstrong, Deputy Associate
General Counsel; Paul J. Speilberg, Deputy Assistant
General Counsel on brief) for Respondent.

Ervin, Chief Judge:

National Posters Inc. (“NPI”), petitions for review
of a bargaining order issued by the National Labor Re-
lations Board (“NLRB”). NPI presses several argu-
ments in support of a claim that it should not be required
to recognize the Baltimore Graphic Communications
Union, Local 61-C (‘Local 61-C’’) as the collective bar-
gaining agent for its employees. Finding no merit in any
of these arguments, we grant enforcement of the NLRB’s
order.

I.

NPI is a commercial poster printer that employed over
fifty people at two Baltimore plants during 1981. During
that year, the predecessor to the Local 61-C, the Balti-
more Printing Pressmen and Assistants Union, Local 61
(“Local 61”), conducted a bitter organizing campaign.
On December 15, 1981, a representation election was held
for the stipulated bargaining unit which included NPI’s
production and maintenance workers. The initial vote
tally revealed 24 votes in favor of Local 61 and 21 votes
opposed, with three ballots challenged by Local 61 and
one ballot challenged by NPI. Without holding a hearing,
the NLRB’s Regional Director rejected NPI’s challenge
to the ballot cast by Samuel John. John’s ballot was sub-

ag ees RAS

8a

sequently opened and counted. Since it was cast in favor
of the union, his ballot gave the union a decisive 25 to
21 majority and the three remaining ballot challenges be-
came moot. Local 61 was thereafter certified and on
December 10, 1982, the NLRB issued an order requiring
NPI to bargain collectively with Local 61.

This is the second time the parties’ disputes over the
results of that election have been before us. In National
Posters Inc. v. N.L.R.B., 720 F.2d 1858 (4th Cir. 1983)
(“National Posters I”), we vacated the NLRB’s Decem-
ber 10th bargaining order because the NLRB’s Regiona!
Director rejected NPI’s challenge to John’s ballot without
affording NPI the opportunity for a hearing on the
underlying factual issues.’ On remand, Administrative
Law Judge Bernard Ries conducted a hearing on NPI’s
and Local 61’s ballot changes. After hearing three days
of testimony in June of 1984, Ries issued a lengthy opin-
ion in which he found that John was eligible to vote. He
also found that among the ballots challenged by Local
61, Wesley Souders was eligible to vote and Albert Amend
was not. After an unexplained two year delay, the NLRB
adopted ALJ Ries’ decision. On NPI’s motion, though,
the NLRB reopened the hearings in light of the inter-
vening merger of the International Printing and Graphic
Communications Union (Local 61’s former national affil-
iate) with the Graphie Arts International Union. As a
result of this merger, Local 61 adopted its current name
as the Baltimore Graphic Communications Union, Local
61-C. NPI charged that this merger substantially changed
the local union and therefore raised a question concern-
ing the local union’s continued majority status among
bargaining unit employees.

1 For reasons not pertinent here, we also instructed the NLRB
to allow NPI to amend its allegations of election campaign mis-
representations by Local] 61. National Posters I, 720 F.2d, at 1364.
NPI subsequently abandoned these allegations and the issue is no

~ longer before us.

4a

ALJ Ries conducted a second hearing in July of 1987.
In an opinion issued in February of 1988, he concluded
that the merger did not so substantially change the local
union as to require its decertification as the bargaining
representative for NPI’s employees. On June 30, 1988,
the NLRB adopted ALJ Ries’ findings and declined NPI’s
invitation to reopen the case yet again to consider whether
turnover among employees in the bargaining unit during
the seven years since the election required a new election.
Continuing its all out efforts to avoid the bargaining
table, NPI now petitions for review of each and every
decision by the NLRB recounted above.

IT.

We turn first to NPI’s claim that the NLRB errone-
ously found that John was eligible to vote in the repre-
sentation election. John worked at NPI off and on for
roughly six months prior to the representation election
as an on-call “racker” in the silk screen department.
Unlike NPI’s regular “rackers”, John was only paid the
minimum wage and received no fringe benefits. His time
cards show that some weeks he worked over forty hours
while during other weeks he did not work at all. For
purposes of determining voter eligibility, the NLRB dis-
tinguishes between part-time employees and seasonal or
casual workers. Seasonal workers are generally not eligi-
ble members of the relevant bargaining unit, while part-
time employees may be included in the bargaining unit
if they share a sufficient “community of interests” with
full time employees. Where part-time employees are in-
cluded in the bargaining unit, such employees are eligible
to vote if they average four hours of work per week in
the quarter preceding the election. V.J.P. Movers, Inc.,
232 NLRB 14, 97 LRRM 1498 (1977). Applying this

2 John’s weekly hours from the date of his hiring up until two
weeks after the election are reproduced in our prior opinion in
National Posters v. N.L.R.B., 720 F.2d, at 1359, n.1.

ORR Ra ee ST 7 aA

Pa AERP err Fa

5a

objective hours per week test, ALJ Ries found that John
was an eligible part-time employee.

NPI does not contest the propriety of including part-
time workers in the bargaining unit. Instead, it con-
tends that John was a casual or seasonal employee hired
solely to work for the 1981 Christmas peak season. Ac-
cording to NPI, John was not a part-time worker and
therefore the objective hours test was erroneously ap-
plied. Further, NPI argues that this conclusion is com-
pelled by the law of the case. In our previous decision,
we noted that NPI had made out a prima facie case that
John was a seasonal employee by alleging:

(1) [NPI] experienced a Christmas peak season;
(2) [NPI] maintains a pool of peak season em-
ployees; (3) John was hired to work only on a peak
season basis; (4) John was paid less than and re-
ceived none of the benefits available to full-time
employees and had no assurance of recall; and (5)
John, in fact, worked primarily during the Christ-
mas peak season and stopped work thereafter.

National Posters I, 720 F.2d, at 1863. NPI now claims
that evidence produced at the June 1984 hearing before
ALJ Ries proved each of these allegations and thus, ac-
cording to the law of the case, the ALJ was required to
find that John was ineligible.

This argument is unpersuasive for two reasons. First,
as discussed more fully below, ALJ Ries did not find
that NPI had proved all of its allegations. Second, by
expressly noting NPI’s allegations, we in no way intended
to alter the legal standard for determining whether John
was a seasonal or part-time employee. Instead, we merely
noted NPI’s allegations were sufficient to raise a prima
facie case and entitle NPI to a hearing. We explicitly
stated that “other facts might tend to support the Re-
gional Director’s conclusion [that John was a part-time
employee and], whether that conclusion is supported by

6a

substantial evidence is a question apart from whether
[NPI] was entitled to a hearing on the underlying factual
issue.” National Posters I, 720 F.2d, at 13863. Thus, even
if NPI had proved each of its allegations, ALJ Ries’ was
not bound by the law of the case to conclude that John
was a seasonal worker so long as other evidence sup-
ported a contrary conclusion. The “law of the case”
here is of no particular assistance to NPI’s cause for it
merely requires us to review the NLRB’s decision ac-
cording to the general principles of labor law.

Distinguishing between seasonal and part-time employ-
ees is no easy task. See N.L.R.B. v. Western Temporary
Services, 821 F.2d 1258 (7th Cir. 1987). Addressing is-
sues regarding the eligibility of non-permanent individ-
ual employees, courts have commonly looked to the lan-
guage defining the bargaining unit and where that lan-
guage was ambiguous, allowed the NLRB to resolve the
issues according to the “community of interests” stand-
ard. See, e.g., N.L.R.B. v. Boston Beef, 652 F.2d 223
(1st Cir. 1981); and N.L.R.B. v. Speedway Petroleum,
768 F.2d 151 (7th Cir. 1985). See also I.T.0. Corp of
Baltimore v. N.L.R.B., 818 F.2d 1108, 1112-13 (4th Cir.
1987) (discussing “community of interests” standard
generally). Applying this standard, “[{t]he Fourth Cir-
cuit has upheld [NLRB] decisions which permitted un-
employed seasonal employees to vote where they ‘had at
the time of the election a reasonable expectation of re-
employment within a reasonable time in the future.’ ”’
N.L.R.B. v. Atkinson Dredging, 329 F.2d 158, 162 (4th
Cir. 1964), quoting N.L.R.B. v. Jesse Jones Sausage Co.,
309 F.2d 664, 665 (4th Cir. 1962). The NLRB’s policy
is that on-call employees share the requisite “community
of interests” if their work history satisfies the objective
hours test. See V.I.P. Movers, 232 NLRB 14, 97 LRRM
1498 (1977).

The ALJ’s determination of John’s employment status
at NPI is a conclusion of law. National Posters I, 720

Ta

F.2d, at 1362-63. The correctness of that conclusion
turns, however, upon factual findings regarding NPI’s
intention in hiring John. See Id. As suggested in Na-
tional Posters I, if NPI hired John “based on the periodic
availability of work rather than on peak season demand,”
John was eligible to vote. ZJd., at 1363. NLRB deter-
minations of fact are to be upheid if supported by sub-
stantial evidence on the record as a whole, “even though
we might have decided the case differently de novo.” ARA
Leisure Services, Inc. v. N.L.R.B., 782 F.2d 456, 462
(4th Cir. 1986). See also N.L.R.B. v. Atkinson Dredging
Co., 329 F.2d, at 162.

ALJ Ries’ decision that John was hired with a reason-
able probability of working on more than a one-time sea-
sonal basis is supported by substantial evidence. NPI’s
Treasurer, Diane Hild, testified that the company main-~
tained a pool of on-call individuals who were routinely
called in to work as temporary replacements for sick or
vacationing workers in addition to helping fulfill peak
season labor needs. She also stated that NPI preferred
to rehire responsible people from its “call list” and that
“call list” employees were sometimes hired to fill full-
time positions. John was on this list for the six months
preceding the election. The record reveals that John was
hired to perform several different jobs prior to the elec-
tion and the NPI appeared to be satisfied with his work.
Hild testified that John was retained on the “call list’
after the Christmas, 1981, season. She could not explain,
however, why his name was removed from the list shortly
after the election. This evidence provides substantial
support for the ALJ’s finding that John had a reasonable
expectation of continued, albeit sporadic, employment and
that he was therefore eligible to vote. Accordingly, we
uphold the NLRB’s decision to count John’s ballot and to
certify Local 61.*

3 NPI also challenges the ALJ’s decision that Albert Amend was
a supervisor and therefore ineligible to vote. Having affirmed the
ALJ’s decision regarding John, it is unnecessary for us to review

8a
III.

Changes in circumstances may erode employee support
for a certified bargaining agent. For this reason, the
NLRA allows both employees and employers to petition
the NLRB to conduct new representation elections.
N.L.R.B. v. Financial Institution Employees, 475 U.S.
192, 198 (1986), 29 U.S.C. §159(¢) (1) (A) (ii) (pe
tition by employees), and 29 U.S.C. § 159(c) (1) (B)
(petition by employer). The NLRB may then direct a
new election if, after investigation, it finds that a ques-
tion of representation exists. 29 U.S.C. §159(c). In
order to raise a question of representation, “[t]he em-
ployer, however, must ‘demonstrate by objective con-
siderations that it has some reasonable grounds for be-
lieving that the union has lost its majority status.’” Fi-
nancial Institution Employees, 475 U.S., at 198, quoting
United States Gypsum Company, 157 NLRB 652, 656
(1966). A union reorganization, such as a merger or
a change in affiliation, may erode rank and file support,
especially if the reorganization “substantially change[s]
a certified union’s relationship with the employees it
represents.” Jd., at 202. In most instances, however,
organizational adjustments are generally internal union
affairs with which neither courts nor the NLRB should
lightly interfere.

NPI claims that the July, 1983, merger of the Inter-
national Printing and Graphic Communications Union
(“IPGCU”) with the Graphic Arts International Union
(“GAIU”) to form the Graphic Communications Inter-
national Union (the “GCIU’’) raises a question of repre-

sentation. As noted above, this reorganization merged

Local 61’s former national affiliate into a newly created

Amend’s eligibility. Once counted, John’s ballot brings the vote
tally to 25 in favor and 21 opposed to unionization. The three
remaining challenged ballots can not alter the outcome of the elec-
tion and we see no purpose in reviewing the merits of those chal-
lenges.

ates stamens, ee

9a

national affiliate, the GCIU. NPI argues that this merger
brought about such drastic changes that the substantial
continuity of Local 61 with the current Local 61-C is in
doubt.

In determining whether reorganizations “substantially
change a certified union’s relationship with the employees
it represents,” courts and the NLRB typically consider
the effect on a local union’s structure, administration,
officers, assets, craft jurisdiction, autonomy, by-laws, and
the rights and obligations of the union’s membership and
leadership. See N.L.R.B. v. Pearl Bookbinding, 517 F.2d
1108, 1111-12 (1st Cir. 1975); J. Ray McDermott & Co.
v. N.L.R.B., 571 F.2d 850, 857 (5th Cir. 1978); and
N.L.R.B. v. Insulfab Plastics, 789 F.2d 961, 966 (1st Cir.
1986). Whether corporate-style reorganizations of unions
and their affiliates so substantially change a union that
a new representation election is required depends on
factual determinations of the effects of reorganization.
See N.L.R.B. v. Insulfab Plastics, 789 F.2d, at 966. And,
of course, the NLRB’s determinations of the effects of
such reorganizations must be upheld if supported by sub-
stantial evidence.

NPI strenuously argues that several differences be-
tween the structure, officers, and craft jurisdiction of the
IPGCU and the new GCIU have transformed Local 61.
Specifically, NPI points to the fact that GCIU’s charter
expands the union’s craft jurisdiction beyond the printing
industry, and most of the new union’s national officers
are former officers of GAIU rather than IPGCU.‘ The

4 NPI also challenges the ALJ’s refusal to grant a delay in the
hearings so that NPI could subpoena GCIU Vice-President James
J. Mitchell. Mitchell was formerly an IPGCU officer. We find no
harm in the fact that NPI was unable to present Mitchell’s prof-
fered testimony regarding the existence of a conspiracy on the
part of former GAIU officers to dominate the new GCIU to the
exclusion of former IPGCU officers, and to ignore provisions of the
merger agreement. We see little relevance in this proffered testi-

10a

ALJ, however, discounted the effect of these and other
changes at the national affiliate level and instead focused
his inquiry on changes at the local level and alleged
changes in Local 61’s autonomy. This decision was en-
tirely appropriate on the facts of this case. Local 61 was
the former representative for NPI’s unit employees and
differences between Local 61 and Local 61-C clearly have
the most dramatic effect on the relationship between
unit employees and their representative. While changes
in the governing structure of a local union’s nationa!
affiliate could alter the identity of the local, especially if
the local’s bargaining autonomy is consequently restricted,
it is the substantial continuity of the local union rather
than the affiliate that remains at issue. See Financial
Institution Employecs, 475 U.S., at 207.

Turning, then, to the asserted differences between Local
61 and Local 61-C, we find that the record strongly sup-
ports the ALJ’s conclusion that these differences were
minor or illusory. In several important areas, the merger
brought no changes. All of Local 61’s officers except one
vice-president retained their offices in Local 61-C. Local
strike action had to be approved by the national both
before and after the merger. And per capita dues to the
affiliate remained unchanged by the merger. After the
merger, Local 61-C did relocate its offices and did raise
local dues, but this dues increase was proportional to pre-
merger dues increases. These changes were, at best, only
tangentially related to the merger. Other changes noted
by NPI hardly call rank and file support into question.
At GCIU’s instruction, Local 61-C obtained new legal
counsel and, as a result of the merger, local assets and
revenues rose moderately.

On these facts, we can hardly say that NPI has “dem-
onstrated by objective considerations” that Local 61-C

mony to the issue of substantial continuity between Local 61 and
Local 61-C.

Maite ei nrricrn tre

lla

has lost majority support. Thus the ALJ’s decision that
NPI has not raised a question of representation must be
upheld.

IV.

Finally we turn to NPI’s assertion that it was entitled
to have the hearings reopened so that it could present
evidence that employee turnover since the 1981 election
required a new election. NPI points out that its work
force has grown to over 130 employees and that 18 of the
original 55 workers have left the company since the
election. NPI suggests that under precedent established
in St. Regis Paper Co., 285 NLRB No. 39, 126 LRRM
1017 (1987), the NLRB was required to consider whether
employee turnover and the inordinate delay since the
election constitute changed circumstances which warrant
a withdrawal of the bargaining order. NPI also urges
that the eight year delay was solely the NLRB’s fault
and that we should therefore deny enforcement rather
than remanding the case for further hearings.

Courts have, albeit rarely and in extreme cases, de-
clined to enforce bargaining orders because of undue
delay, attributable to the NLRB, in the resolution of
election disputes. See Mosey Mfg. Co. v. N.L.R.B., 701
F.2d 610 (7th Cir. 1983). And in some cases, courts
have noted that employee turnover during such delays
may call into question the continuing validity of close
election results. See N.L.R.B. v. Katz, 701 F.2d 703 (7th
Cir. 1983); N.L.R.B. v. Nixon Gear, Inc., 649 F.2d 906
(2nd Cir. 1981); N.L.R.B. v. Connecticut Foundry Co.,
688 F.2d 871 (2nd Cir. 1981); N.L.R.B. v. Connecticut
Foundry Co., 688 F.2d 871 (2nd Cir. 1982). In most
of these decisions, the refusal to enforce bargaining
orders was justified on traditional principles of equity.
See, e.g., Mosey Mfg. Co., 701 F.2d at 613 (“When a
party asking a court to do equity has strung out the pro-
ceeding to the point where the court cannot determine
whether equitable relief would achieve the legitimate pur-

12a

poses of the suit . . . the court will withhold its assist-
ance.”). On this authority, NPI argues that employee
turnover and NLRB delays in deciding this case justify
denying enforcement of the NLRB’s bargaining order.

Unlike the delays in the cases relied upon by NPI, we
hesitate to lay the entire blame for the eight year delay
in the proceedings below on the NLRB.’ Without at-
tempting to further distinguish the decisions of our sister
circuits, though, we hold that NPI’s challenge must be
analyzed under the principles set forth in Financial In-
stitution Employees, supra, rather than the principles of
equity. In other words, employee turnover, just like a
union reorganization, is a change in circumstance of no
particular consequence unless it raises a question of rep-
resentation. And again, to raise a question of represen-
tation, NPI must “demonstrate by objective considera-
tions that it has some reasonable grounds for believing
that the union has lost its majority status.” Financial
Institution Employees, 475 U.S., at 198.

NPI’s only evidence, however, is the bare fact that
employee turnover has occurred during the eight years
since the election. This, without more, is insufficient to
raise a question of representation. Cf. Universal Se-
curity Instruments Inc., v. N.L.R.B., 649 F.2d 247, 255
(4th Cir., 1981) (“Replacement employees are presumed
to support the unit in the same ratio as those replaced.’’),
and N.L.R.B. v. 1199, National Union of Hospital and
Health Care Employees, 824 F.2d 318, 323 (4th Cir.
1987) (‘Where a union is certified after a representa-
tion election, the employer cannot challenge majority
status until it has bargained with the union for a rea-
sonable period, usually one year.’”’). Indeed, the record is
entirely devoid of evidence that new employees are dis-

5 We do note, however, that the NLRB’s disposition of this case
has been no model of administrative efficiency. Almost two and a
half years elapsed after the first hearings on John’s voting eligi-
bility an the NLRB’s decision. No good reason for this delay has
been offe ed by the General Counsel.

13a

satisfied with or otherwise opposed to Local 61-C’s rep-
resentation. Were we to adopt NPI’s argument that it
was entitled to a hearing on this evidence, we would
effectively hold that the passage of time and employee
turnover are sufficient to raise doubts about rank and
file support. This we will not hold. Since NPI failed to
present sufficient evidence to raise a question of repre-
sentation, the NLRB properly declined to hold hearings
on the issue of employee turnover.

V.

We conclude that the record supports the NLRB’s de-
terminations that John was eligibile to vote in the 1981
election and that the intervening merger of Local 61-C’s
former affiliate did not call into question Local 51-C’s
rank and file support. We also conclude that NPI’s bare
assertions of employee turnover did not necessitate fur-
ther hearings and further delays in these already unduly
protracted proceedings. The NLRB’s order directing Na-
tional Posters, Inc., to bargain with the Baltimore
Graphic Communications Union, Local 61-C is hereby

ENFORCED,

14a

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 82-2140

NATIONAL POSTERS, INC. and NATIONAL LITHO a division
of National Posters, Inc.,
Petitioners,

Vv.

NATIONAL LABOR RELATIONS BOARD,
Respondent.

On Petition for Review and Cross-Application for
Enforcement of
an Order of the National Labor Relations Board

Argued: July 12, 1983 Decided: November 3, 1983

Before PHILLIPS, SPOUSE and ERVIN, Circuit
Judges.

Maurice Baskin (Venable, Baetjer, Howard & Civiletti
on brief) for Petitioner; Daniel R. Pollitt, National La-
bor Relations Board (William A. Lubbers, General Coun-
sel, John E. Higgins, Jr., Deputy General Counsel, Rob-
ert E. Allen, Associate General Counsel, Elliott Moore,

15a

Deputy Associate General Counsel, Jolane A. Findley on
brief) for Respondent.

ERVIN, Circuit Judge:

This is a petition by National Posters, Inc. (“Em-
ployer’) for review of an order by the National Labor
Relations Board (“Board”). That order, issued De-
cember 10, 1982, requires Employer to bargain collec-
tively with the Baltimore Printing Pressmen and As-
sistants Union (“Union”). Employer had refused to
bargain with the Union in order to obtain judicial re-
view of the Board’s certification of the Union as the
bargaining representative of all production and main-
tenance employees at Employer’s two Baltimore plants.
Because we conclude that the Board improperly certified
the Union, we vacate the order and remand to the Board
fr further proceedings.

I.

Employer is a commercial poster printer. It employs
over 50 people at its two Baltimore plants. Ear! Seth,
Jr., is president and owner of Employer. In the fall of
1981, the Union conducted an organizing campaign
among Employer’s employees. A central issue in the
campaign was the level of wages and benefits, which had
been cut back as a result of Employer’s financial prob-
lems. The campaign culminated in a representation elec-
tion which was held on December 15, 1981. The initial
election tally was 24 for the Union and 21 against, with
4 challenged ballots, three by the Union and 1 by Em-
ployer.

Employer challenged the vote of employee Samuel John.
The challenge was supported by an affidavit submitted
by Seth, who indicated that he intended John to be em-
ployed only on a peak seasonal basis. John was hired
in June, 1981 as a seasonal employees who is “on call”

16a

to perform the job of “racking.” ! When John worked,
he did so “shoulder-to-shoulder” with Employer’s two
full-time rackers. John was paid the minimum wage,
$3.35 per hour, while the two full-time rackers earned
$3.47 and $4.37 per hour respectively. Unlike John, their
salaries would increase with their length of service. John
also did not receive any of the benefits enjoyed by full-
time employees such as health and welfare insurance,
vacation pay, sick pay, or holiday pay.

1From the date of his hiring through the end of 1981, John
worked the following number of hours during the weekly pay
periods.

Week ending 1981 Hours Worked
6/30 9
7/3 6
7/10 0
7/17 0
7/24 36
7/31 8
8/7 0
8/14 0
8/21 0
8/28 2215
9/4 0
9/11 0
9/18 0
9/25 301%

10/2 4334
10/9 0
10/16 0
10/23 27
10/30 36
11/6 45
11/13 5114
11/20 AT%,
11/27 2834
12/4 81%,
12/11 35%
12/18 50
12/25 261%

1/2/82 16

Pe er rer Pei eee ee ere

17a

Employer’s business experienced a seasonal surge of
business during the Christmas rush season. Employer
maintained a pool of seasonal employees who could work
during that period of increased demand. Seasonal em-
ployees, including John, were free to work elsewhere
when not working for Employer. These employees had no
assurance of recall.

Employer maintains that John’s hours during late Sep-
tember through December reflect the Christmas rush and
that John did not work after the payroll period ending
January 2, 1982, because the Christmas rush period
ended.

Employer also objected to the ele tion on grounds that
the Union had engaged in campaign misconduct by mak-
ing five material misrepresentations that affected the
election results. In its Objection 1, Employer alleged
that in the week prior to the election, Union President
Gerald Brown, as well as other Union representatives,
falsely told numerous employees that Employer had spent
large sums of money on gifts for his children, including
the purchase of a large farm for his daughter. In its
Objection 2, Employer alleged that the Union had ma-
terially misrepresented the Union’s pension plan by stat-
ing or implying that employees automatically would be
entitled to participate in the Union’s plan upon select-
ing the Union, and that employees’ participation in the
plan automatically would be paid for out of union dues.
In its Objection 3, Employer alleged that the Union ma-
terially misrepresented the health and welfare benefits
to which the employees would be entitled if the Union
were selected by stating or implying that all of the
Union’s contracts contained all health and welfare bene-
fits being promised by the Union and leading the em-
ployees to believe that they automatically would be en-
titled to optical coverage and other benefits upon mere
payment of dues following the Union’s certification. In
its Objection 4, Employer alleged that Union representa- —

18a

tives misrepresented to numerous employees the amount
of dues employees would be required to pay to join the
Union. Lastly, in its Objection 5, Employer generally
alleged that “various other false and misleading state-
ments” were made by Union representatives. These ex-
ceptions were supported by the affidavits of Seth and
three supervisors.

On March 16, 1982, the Board’s Regional Director is-
sued, without a hearing, a report recommending that
Employer’s challenges be overruled. The Regional Di-
rector found that John was an eligible voter, rejecting
Employer’s claim that John was a seasonal employee.
Instead, the Regional Director characterized John as a
part-time employee, finding that “Employer’s need for
John’s services is more dependent upon the availability
of jobs requiring extra racking, than upon particular
peak periods of the business year.” The Regional Di-
rector considered the ruling supported by (1) John work-
ing in each of the six months prior to the December
election, (2) John performing, when he did work, the
same tasks as full-time workers and working shoulder-
to-shoulder with those workers and (3) John being su-
pervised by the supervisor of the full-time employees.
The Regional Director then applied the Board’s objective
number of hours test for determining if part-time em-
ployees are eligible voters: part-time employees are eligi-
ble voters #f they average four hours of work per week
in the quarter preceeding the election. See V.I.P. Mov-
ers, Inc., 232 NLRB 14 (1977); Davison-Paxon Co., 185
NLRB 21 (1970). Since John averaged more than four
hours per week, he was found to be eligible.

The Regional Director also overruled one of the Union’s
voter challenges and after counting the two challenged
ballots, the new tally became 25-22 in favor of the Union.
Thus, the two remaining challenged votes could not affect
the election, assuming the challenges to the other two votes
were properly overruled,

eee

19a

The Regional Director rejected all of the objections
concerning Union misrepresentations. The Regional Di-
rector found that even if the allegations in Objection 1
were true, the misrepresentations did not accuse Seth of
corporate malfeasance and, thus, under the standard set
out in Hollywood Ceramics/General Knit did not affect
election results. See General Knit of California, Inc., 239
NLRB 619 (1978) ; Hollywood Ceramics Co., 140 NLRB
221 (1952). Objections 2 through 5 were overruled be-
cause they were supported by only the hearsay affidavits
of three supervisors, and not by the statements of wit-
nesses to the alleged misrepresentations.

Employer filed timely objections to the Regional Di-
rector’s decision, but on June 29, 1982, the Board af-
firmed that decision. The Board did so without a hear-
ing and without review of the affidavits submitted by
Employer to the Regional Director in support of its chal-
lenges. The Regional Director did not transmit the affi-
davits to the Board as part of the record. In its opinion,
the Board did not specifically address Employer’s chal-
lenge to John’s eligibility or the alleged misrepresenta-
tion in Objection 1. With respect to Objections 2-5, the
Board affirmed the Regional Director on the grounds
that the alleged misrepresentations did not violate Holly-
wood Ceramics/General Knit standards:

Assuming the veracity of the Employer’s claims re-
garding Employer’s Objections 2-5, we find that the
Employer failed to establish a prima facie case that
the Petitioner made representations which would war-
rant setting aside the results of the election.

On July 14, 1982, the Regional Director certified the
Union. Employer refused to bargain with the Union,
and on December 10, 1982, the Board issued a cease and
desist order requiring Employer to bargain collectively
with the Union. Employer then petitioned this court for
review of the Board’s order.

20a

Il.

Employer first claims that under NLRB v. Cambridge
Wire Cloth Co., Inc., 622 F.2d 1195 (4th Cir. 1980), this
case should be remanded to the Board with direction to
the Regional Director to transmit all material included
in his decision, including the various affidavits submitted
by Employer, to the Board for its consideration. Cam-
bridge Wire involved facts identical in material respects
with those here. In that case, as here, the employer con-
tended for the first time on appeal to this court that the
Regional Director failed to transmit to the Board certain
affidavits submitted by the employer. The Regional Di-
rector had issued his decision without a hearing and
the employer had assumed that upon filing its request for
heview by the Board, the Regional Director would trans-
mit to the Board all the material that had been pre-
sented to or considered by him.

This court, relying on 29 C.F.R. § 102.69(g) and
Prestolite Wire Division v. NLRB, 592 F.2d 302 (6th
Cir. 1979), held that it was the Regional Director’s re-
sponsibility to transmit the record, including the affi-
davits, to the Board and that his failure to do so re-
quired a denial of enforcement. In Prestolite, the Sixth
Circuit had held that “[wl]ithout expressly ruling that
the Regional Director is invariably required under Sec-
tion 102.69(g) to transmit to the Board all of the ma-
terials considered by him (although the language says
‘shall’), we think that the better practice is to do so and
we are unable to fault the company for having failed to
anticipate that this procedure would not have been fol-
lowed here.” * Jd. at 305. In adopting the Prestolite rea-
soning, this court stated:

2 Section 102.69 (g), as it read at the time, provided:
The notice of hearing, motions, rulings, orders, stenographic
report of the hearing, stipulations, exceptions, documentary
evidence, together with the objections to the conduct of the

as A

ee ee ae een

2la

We are asked to construe a somewhat ambiguous
regulation, 29 C.F.R. §102.69(g) ....

The Board argues that 29 C.F.R. § 102.69(g) sup-
ports its assertion that it was Cambridge Wire’s re-
sponsibility to transmit the record. Subsection (g)
permits the party filing objections to “append to its
submission to the Board copies of documents it has
timely submitted to the regional director and which
were not included in the report or decision.” As did
the Court in Prestolite Wire, we do not find that
this language imposes responsibility on Cambridge
Wire to transmit to the Board all the material it
furnished the Regional Director in his investigation.

Cambridge Wire, 622 F.2d at 1199.

The Board replies that in response to the Prestolite de-
cision (and, presumably, Cambridge Wire), the Board
amended § 102.69(g), effective September 14, 1981, to
make it clear that it is the employer’s, and not the Re-
gional Director’s, responsibility to file supporting affi-
davits with the Board. We agree that new § 102.69(g)
requires a result contrary to that reached in Cambridge
Wire. The new section clearly provides that supporting
affidavits are not part of the record unless submitted to
to the Board by the employer and that “[flailure to

election or conduct affecting the results of the election, any
report on such objections, any report on challenged ballots,
exceptions to any such report, any briefs or other legal memo-
randa submitted by the parties, the decision of the regional
director, if any, and the record previously made as described
in § 102.68, shall constitute the record in the case. Materials
other than those set out above shall not be a part of the record;
except that in a proceeding in which no hearing is held, a party
filing exceptions to a regional director’s report on objections
or challenges, a request for review of a regional director’s
decision on objections or challenges, or any opposition thereto,
may append to its submission to the Board copies of docu-
ments it has timely submitted to the regional director and
which were not included in the report or decision.

22a

timely .. . append that evidence to its submission to the
' Board ... shall preclude a party from relying on such
evidence.” * Furthermore, in a notice included at the
end of his decision, the Regional Director informed Em-
ployer that it was its responsibility to transmit the affi-
davits to the Board.*

3 New § 102.69(g) provides, in pertinent part:

(g) (1) Gii) In a proceeding pursuant to this section in which

no hearing is held, the record shall consist of the objections to

the conduct of the election or to conduct affecting the results

of the election, any report on objections or on challenged
ballots and any exceptions to such a report, any regional direc-

tor’s decision on objections or on challenged ballots and any

request for review of such a decision, any documentary evi-

dence, excluding statements of witnesses, relied upon by the
regional director in his decision or report, any briefs or other ;
legal memoranda submitted by the parties, and any other
motions, rulings, or orders of the regional director. Materials
other than those set out above shall not be a part of the record,
except as provided in paragraph (g) (3) of this section.

* * é

(g) (3) In a proceeding pursuant to this section in which no
hearing is held, a party filing exceptions to a regional direc-
tor’s report on objections or challenges, a request for review
of a regional director’s decision on objections or challenges,
or any opposition thereto may support its submission to the
Board by appending thereto copies of documentary evidence,
including copies of any affidavits, it has timely submitted to
the regional director and which were not included in the ;
report or decision. Documentary evidence so appended shall
thereupon become part of the record in the proceeding. Failure .
to timely submit such documentary evidence to the regional i
director, or to append that evidence to its submission to the
Board in the representation proceedings as provided above,
shall preclude a party from relying on such evidence in any
subsequent related unfair labor practice proceedings. :

isis So

4 The notice informed Employer: ;
Under the provisions of Section 102.69 of the Board’s Rules |
and Regulations, exceptions te this report may be filed with
the Board in Washington, D.C. Under the provisions of Sec-
tion 102.69(g) of the Board’s Rules, documentary evidence,
including affidavits, which a party has timely submitted to

23a

ITI.

Employer next claims that the Board erred by not
granting a hearing on the issue of John’s eligibility to
vote. The Board is required by “both due process of law
and the Rules and Regulations of the Board itself” to
hold a post-election hearing when the objecting party
raises a “substantial and material issue of fact relating
to the validity of a representation election.” The Metho-
dist Home v. NLRB, 596 F.2d 1173, 1178 (4th Cir. 1979).
See 29 C.F.R. §§ 102.69(c) (1), 102.69(d) (“hearing shall
be conducted with respect to those objections or challenges
which the regional director concludes raise substantial
and material factual issues”). Whether there is such a
material and substantial factual issue is ‘“‘a question of
law and ultimately a question for the courts.” NLRB v.
Bata Shoe Co., 377 F.2d 821, 826 (4th Cir.), cert denied,
389 U.S. 917 (1967). Furthermore, it is not sufficient
for an employer merely to question the interpretation of
or legal conclusions drawn from the facts by the Re-
gional Director. See Macomb Pottery Co. v. NLRB, 376
F.2d 450, 453 (7th Cir. 1967); NLRB v. Sun Drug Co.,
359 F.2d 408, 414 (3d Cir. 1966).

The critical legal conclusion drawn by the Regional
Director was that John was a part-time, and not a sea-
sonal, employee.’ That legal conclusion allowed the Re-

the Acting Regional Director in support of its challenges and
objections and which are not included in the Report, are not a
part of the record before the Board unless appended to the
exceptions or opposition thereto which a party files with the
Board. Failure to append to the submission to the Board
copies of evidence timely submitted to the Acting Regional
Director and not included in the Report shall preclude a party
from relying vpon that evidence in any subsequent related
unfair labor practice proceedings. Exceptions must be received
by the Board in Washington by March 29, 1982.

5 Because we decide that a hearing should have been granted,
we do not reach the question of whether this conclusion is sup-
ported by substantial evidence.

24a

gional Director to apply the objective number of hours
test, which test the Board does not apply to seasonal em-
ployees. See Davison-Paxon Co., 185 NLRB 21 (1970).
The conclusion is based on the Regional Director’s factual
finding that Employer’s need for John’s services was
based on the periodic availability of work rather than on
peak season demand.* That finding, however, is a reso-
lution of the substantial and material factual issue
raised by Employer. Employer’s affidavits contain alle-
gations that are prima facie sufficient to support the
opposite finding that the need for John’s services was
dependent upon the Christmas peak season: (1) Em-
ployer experienced a Christmas peak season; (2) Em-
ployer maintains a pool of peak season employees; (3)
John was hired to work only on a peak season basis; (4)
John was paid less than and received none of the bene-
fits available to full-time employees and had no assurance
of recall; and (5) John, in fact, worked primarily during
the Christmas peak season and stopped work thereafter.
See Seneca Foods Corp., 248 NLRB 1119 (1980); See’s
Candy Shops, Inc., 202 NLRB 538 (1973) ; United Foods,
Inc., 174 NLRB 91 (1969). While other facts might
tend to support the Regional Director’s conclusion,’
whether that conclusion is supported by substantial evi-
dence is a question apart from whether Employer was
entitled to a hearing on the underlying factual issue. We
believe that Employer’s allegations created a substantial

© The dissent argues that this finding raises no separate issue of
fact but depends on a legal conclusion alone—whether John was a
part-time or seasonal employee. The question of what motivated
Employer to call John to work, however, seems clearly to be a
factua! question, the resolution of which leads to a legal conclusion
concerning John’s status at work.

7 We note, however, that employees have been held to be seasonal
employees even though they worked sporadically outside the busy
season, NLRB v. Sandy's Stores, Inc., 398 F.2d 268 (1st Cir. 1968),
or performed the same duties as regular employees, Sce’s Candy
Shops, Inc., 202 NLRB 538 (1973).

25a

and material issue of fact and that Employer is entitled
to a hearing on that issue.

IV.

During the past ten years, the Board has flip-flopped
several times on the standard to be applied in deter-
mining whether an election should be set aside where
the successful party has made a material misrepresenta-
tion during the campaign. Under Hollywood Ceramics
Co., 140 NLRB 221, 224 (1962), an election would be
set aside where the misrepresentation ‘may reasonably
be expected to have a significant impact on the election,”
and was made at a time when the other party could not
make an effective reply. In 1977, the Board overruled
Hollywood Ceramics to the extent that it permitted the
setting aside of an election because of misleading cam-
paign statements. Shopping Kart Food Market, 228
NLRB 1311 (1977). The Hollywood Ceramics test then
was reinstated in General Knit of California, Inc., 239
NLRB 619 (1978), but General Knit itself was over-
ruled and the Shopping Kart test reinstated in Midland
Nat'l Life Ins. Co., 263 NLRB No. 24, 110 L.R.R.M.
1489 (1982). At present, the Board “will_not set elec-
tions aside on the basis of misleading campaign state-
ments,” but “will . . . intervene in cases where a party
has used forged documents which render the voters unable
to recognize propaganda for what it is.” Jd. at 1494.

Midland was decided subsequent to the Board’s deci-
sion in this case and Employer would have us apply it
- prospectively only. Appellate courts, however, ordinarily
apply the law in effect at the time of the appellate de-
cision. Bradley v. School Board of Richmond, 416 U.S.
696, 711 (1974). Where, as here, there is an interven-
ing change of agency policy, the central question is
“whether giving the change retrospective effect will best
effectuate the policies underlying the agency’s governing
act,” and that question is committed, in the first instance,

26a

to the agency’s sound discretion. NLRB v. Food Store
Employees Union, 417 U.S. 1, n.10 (1974). The Board
clearly has indicated that Mid/and should apply to this
case. In Midland, the Board balanced the hardships im-
posed by retroactivity against the prospect of producing
results contrary to the statutory design and determined
that Midland would apply “to all pending cases in what-
ever stage.” * Midland, 110 L.R.R.M. at 1494 n.24. In-
deed, the only hardship to employer is that, in reliance on
the Hollywood Ceramics/General Knit standard, it re-
frained from making any misrepresentations of its own
during the campaign. We thus join those other courts of
appeals that have applied Midland retroactively. See
NLRB v. Monarch Boat Co., No. 82-1963 (8th Cir., filed
July 22, 1983); NURB v. Milwaukee Brush Mfg. Co.,
705 F.2d 257 (7th Cir. 1983); NLRB v. Rollingon Corp.,
702 F.2d 589 (5th Cir. 1983).

Nevertheless, since Employer’s objections were drawn
under the Hollywood Ceramics/General Knit standard
and no hearing was held on the misrepresentations issue,
we carnot determine whether the alleged misrepresenta-
tions included the kind of forged document use discussed
in Midland. Thus, on remand, Employer should be given
the opportunity to amend its objections in light of the
Midland standard. Furthermore, we decline to resolve
Employer’s challenge to the validity of the Midland
standard. Given the incompleteness of the record before
us, resolution of that challenge would be premature.’

8 This case is unlike Cedar Coal Co. v. NLRB, 678 F.2d 1197,
1199 (4th Cir. 1982), where we declined to apply retroactively an-
other Board decision because the Board had “not indicated its
policy on retroactive application to earlier Board decisions which
have been appealed.”” We read the “to all pending cases in whatever
stage” statement to mean that the Board would apply Midland to
earlier decisions that have been appealed, including this one.

® Employer claims that it was entitled to a hearing on the mis-
representation issue. The Board affirmed the Regional Director’s
overruling, withouf a hearing, of Employer’s objections 2-5 on the

27a
V.

For the foregoing reasons, the Board’s order is va-
cated and the case is remanded to the Board for further
proceedings.

VACATED AND REMANDED.

grounds that they failed to establish a prima facie case for setting
aside the election under the Hollywood Ceramics/General Knit
standard. On appeal, the Board does not argue that the objections
did not warrant a hearing under the Hollywood Ceramics/General
Knit standard. Rather, it argues that the Midland standard applies
and since the objections contain no allegation of union use of forged
documents, Employer failed to allege a prima facie case. Thus,
no hearing was required. On remand, if the Board decides that
the Hollywood Ceramics/General Knit standard should apply—
although, as discussed above, we believe the Board clearly has
indicated that Midland applies to this case—then Employer is en-
titled to a hearing on the misrepresentation issue. A central issue
in the Union campaign was the level of employee benefits and
Objections 2-4 contain allegations of material misrepresentations
concerning benefits. Whether Employer is entitled to a hearing if
the Mid/and standard is applied will depend on the allegations in
the amended objections.

28a

SPROUSE, Circuit Judge, dissenting:
I respectfully dissent.

I disagree with the pivotal point of the majority de-
cision—that National Posters raised substantial issues
of fact about Samuel John’s employment status requir-
ing a hearing by the Regional Director.

A post-election hearing undoubtedly must be conducted
when the objecting party raises a “substantial and ma-
terial issue of fact relating to the validity of a repre-
sentation election.” Methodist Home v. NLRR, supra.
One cannot, however, raise a substantial issue of fact
merely by questioning the interpretation of the Regional
Director’s findings. Macomb Pottery Co. v. NLRB, 376
F.2d 450, 453 (7th Cir. 1967); NLRB v. Sun Drug Co.,
359 F.2d 408, 414 (3d Cir. 1966).

The Director carefully considered all the objective evi- |

_ dence before reaching a decision on John’s employment |
status. He correctly credited John with working at least |

some hours in each month from June through December, i

1981. He found that John was paid slightly less and |

received fewer benefits than his co-workers because he |

had only recently been employed. He found, however, |

that John worked shoulder to shoulder with full-time em-

ployees, performing the same job assignments and report-

ing to the same supervisors.

National Posters relies on the affidavit of Earl Seth,
its president and sole owner, as sufficient to raise a sub-
stantial and material issue of fact as to whether John
was a “part-time” or “seasonal” employee. Seth’s affi-
davit essentially stated his subjective view that he had
hired John in anticipation of increased seasonal work.
The Regional Director, in rejecting this bare assertion,
based his findings on uncontested documented evidence.
In my mind, the entirely subjective intent of the em-
ployer under these circumstances is entitled to little

7
7
———E eee

29a

weight. Specific and objective facts from company rec-
ords were introduced into evidence and fully considered
by the Regional Director. A single self-serving, and en-
tirely subjective, impression simply does not have the
probative force to create an issue of fact when measured
against that evidence.

I have, moreover, a more fundamental difference with
the majority opinion. It states: “the critical legal con-
clusion drawn by the Regional Director was that John
was a part-time, and not a season employee .... The
conclusion is based on the Regional Director’s factual
finding that Employer’s need for John’s services was
based on the periodic availability of work rather than
on peak season demand. That finding, however, is a reso-
lution of the material factual issue raised by Employer.”

I suggest that my respected colleagues have not sep-
arately stated a legal conclusion and a factual finding
upon which it was based; rather, they have simply taken
the legal conclusion—that John was a part-time employee
and recategorized it as a finding of fact under the cloak
of factual terminology. The Director’s findings of fact
were that John worked a stated number of hours in each

-month, received a certain level of pay and benefits, and

worked “shoulder to shoulder” with regular employees.
The Director concluded from these facts that John’s serv-
ice was based on the periodic availability of work. This
was, at least, an ultimate conclusion of fact from which
only one conclusion of Jaw was possible—that John was a
part-time employee. To create an issue of fact under the
circumstances of this case, National Posters must offer
evidence, by affidavit or otherwise, contradicting the Di-
rector’s factual findings as to hours worked, job assign-
ments, and the conditions of his employment. Instead,
it by affidavit merely disputed the inferences and con-
clusions drawn by the Regional Director from record
facts. I feel the Board correctly rejected the contention
that such a subjective impression created a substantial

30a

and material issue of fact. Macomb Pottery Co. v. NLRB,
376 F.2d 450, 453 (7th Cir. 1967); NLRB v. Sun Drug
Co., 359 F.2d 408, 414 (3d Cir. 1966). a

I agree with the majority that the standard announced
by the Board in Midland controls the misrepresentation
issues, but since National Posters raised no Midland is-
sues, I do not feel a remand is necessary.

I would enforce the Board’s order.

‘i diseD ie Raifeiteinind teal dea '

3la

UNITED STATES OF AMERICA
BEFORE THE
NATIONAL LABOR RELATIONS BOARD
REGION 5

Case 5-RC-11680

NATIONAL POSTERS, INC., AND NATIONAL LITHO, A
DIVISION OF NATIONAL POSTERS, INC.,
Employer
and .

BALTIMORE PRINTING PRESSMEN AND
ASSISTANTS UNION #61
Petitioner

REPORT ON CHALLENGES AND OBJECTIONS

Pursuant to a Stipulation for Certification Upon Con-
sent Election! approved by the undersigned on November
10, 1981, a secret-ballot election was conducted under
his supervision on December 15, 1981, with the following
results:

Approximate number of eligible voters 53
Void ballots 0
Votes cast for Petitioner 24
Votes cast against participating labor

organization 21
Valid votes counted 45
Challenged ballots 4
Valid votes counted plus challenged ballots 49

1The unit is: “All production and maintenance employees in-
cluding truck drivers, employed by the Employer at its 800 Debelius
Avenue, Baltimore, Maryland and 4206 Shannon Drive, Baltimore,
Maryland locations; but excluding all office clerical employees,
guards and supervisors as defined in the Act.” The eligibility pe-
riod is the payroll period ending Sunday, November 8, 1981.

32a

The challenged ballots affect the results of the election.

Timely objections to conduct affecting the results of
the election were filed by the Petitioner and the Em-
ployer on December 22, 1981.7

THE CHALLENGES

The Empleyer challenged the ballot cast by Samuel
John on the grounds he was a casual employee, and there-
fore not eligible to vote. Petitioner challenged the ballots
east by Albert Amend and Wesley Souders on the grounds
they were supervisors and/or managerial employees within
the meaning of the Act. Additionally Petitioner chal-
lenged the ballot cast by Robert Beddoe on the grounds
he was an Office clerical employee, and therefore not eligi-
ble to vote.

SAMUEL JOHN

With respect to the challenged ballot of Samuel John,
Petitioner contends he is eligible as a regular part-time
employee but failed to submit evidence in support of its
position. The Employer maintains John was hired in
June 1981, as a casual, seasonal employee who is “on
call” to perform the job of “racking” * on an as-needed
basis. John is paid the minimum wage ($3.35 per hour),
while the Employer’s two full-time rackers earn $3.47 and
$4.37 per hour respectively. Unlike John, their salaries
increase with their length of service. Moreover, John
does not receive any of the benefits enjoyed by other em-
ployees such as health and welfare insurance, vacation
pay, sick pay or holiday pay.

2 The petition was filed on October 22, 1981. The undersigned
will consider on its merits only that alleged interference which
occurred during the critical period which begins on and includes
the date of the filing of the petition and extends through the elec-
tion. Goodyear Tire and Rubber Company, 138 NLRB 453.

3 Racking is a job essentially consisting of helping to lift sheets
of completed posters off machines,

33a

The Employer telephonically offers racking work to
John when there is too much work for the two regular
full-time rackers to complete. Inasmuch as the need for
an extra racker fluctuates with the availability of jobs
requiring racking, the Employer has had occasion to use
John anywhere from one to over ten consecutive days.
Conversely, there are periods during which John was not
used for as much as three weeks. The table below lists
the hours John has worked during the weekly pay periods
covering his employment:

Week Ending (1981) Hours Worked
6/30 9
7/3 0
7/10 0
T/17 0
7/24 36
7/31 8
8/7 0
8/14 0
8/21 6
8/28 2214
9/4 0
9/11 0
9/18 0
9/25 3014
10/2 433),
10/9 0
10/16 0
10/23 27
10/30 36
11/16 45
11/13 5114,
11/20 473/,
11/27 2834,
12/4 81%
12/11 3534,
12/18 50
12/25 ' 2614,

January 2, 1982 16

34a

The Employer maintains that John’s increased hours
between October and December reflect the Employer’s sea-
sonal increase in business as well_as the Employer’s
acquisition of a “large account” which necessitated rack-
ing. John has not worked since the payroll period ending
January 2, 1982, because the seasonal period has ended
and because the “large account” has been completed.

The Board normally determines eligibility for part-time
and on-call employees on the basis of a representative
period, in some cases, the three month quarter which
immediately precedes the eligibility date. Motor Trans-
port Labor Relations, Inc., 189 NLRB 70, 72; Davison-
Paxon Company, 185 NLRB 21, 23; Sears, Roebuck and
Co., 193 NLRB 330; Hardy Herpolsheimer’s—A Division
of Allied Stores of Michigan, Inc., 227 NLRB 652. In
several cases the Board has found part-time and on-call
employees eligible to vote if they regularly averaged four
hours of work per week in the quarter preceding the
election. Davison-Paxon Company, supra.; V.I.P. Movers,
Inc., 232 NLRB 14. Moreover, in some cases cited herein

_the Board has applied these standards even though part-
time and on-call employees receive different benefits than
regular full-time employees. V.J.P. Movers, Inc., supra.
As noted above, the Employer contends John is a seasonal
and/or casual employee. This conclusion does not follow
from the facts supplied by the Employer. The Employer’s
need for John’s services is more dependent upon the avail-
ability of jobs requiring extra racking, than upon par-
ticular peak periods of the business year. In this re-
gard, it is noted that John, following his hire in June
1981, worked during each of the six successive months.
When John reports to work he performs racking duties
also performed by full-time rackers who were eligible to
vote. Moreover, John labors “shoulder to shoulder” with
employees regularly assigned to operate printing presses
and he is supervised by the supervisor of the regular
full-time and part-time employees.

35a

In view of the above, and considering that John aver-
aged in excess of four hours per week in each of the two
quarters preceding the election, it appears John has a
substantial community of interest with other employees.
Accordingly, the undersigned recommends the challenge
to his ballot be overruled.

ALBERT AMEND AND WESLEY SOUDERS

With respect to the challenged ballots of Albert “Pete”
Amend and Wesley Souders, Petitioner contends they are
supervisors within the meaning of the Act because, inter
alia, they receive greater wages and benefits than other
employees, enjoy different working conditions and exer-
cise independent judgment in matters such as hiring,
firing, disciplinary section, assignment of work and the
adjustment of grievances. Conversely, the Employer as-
serts that Amend and Souders are merely working fore-
men and do not have the supervisory authority alleged
by the Petitioner. Inasmuch as the challenges to the bal-
lots of Amend and Souders raise substantial issues of fact
which can best be resolved by record testimony, the un-
dersigned recommends a hearing be held with respect
to the challenges of Albert Amend and Wesley Souders.

ROBERT BEDDOE

Regarding the challenge to the ballot cast by Robert
Beddoe, Petitioner contends he is an office clerical and,
therefore, does not share a sufficient community of in-
terest with the eligible employees. Petitioner failed to
submit any evidence in support cf its challenge. The
Employer contends Beddoe is eligible to vote in the
election inasmuch as he is a shipping clerk spending sub-
stantial time working in the plant among other eligible
employees. According to the testimony of Earl Seth, Jr.,
president of the Emplover, Beddoe is responsible for
keeping the inventory of paper stock as it proceeds
through the plant. In addition, Beddoe loads and un-

36a

loads trucks and actually moves paper supplies around
the plant via forklifts. Beddoe also lifts and stores paper
stock when it is delivered to the National Litho facility
and works in the warehouse. Finally, Seth asserts that
Beddoe does not perform typing and secretarial functions
at National Litho inasmuch as the Employer employs
_- another employee who is responsible for those duties.
Based upon the evidence submitted during the investi-
gation it appears that Beddoe is a plant clerical em-
ployee since his duties are directly related to unit work
and are, in fact, largely performed in the plant where
other employees work. Risdon Manufacturing Company,
195 NLRB 579. Accordingly, the undersigned recom-
mends the challenge to his ballot be overruled.

THE EMPLOYER’S OBJECTIONS
Objection 1

Throughout the week prior to the election, represent-
atives of the Petitioner, including President Gerald
L. Brown, told numerous employees that Ear] Seth,
Sr., President of the Company, had spent large
amounts of company funds on presents for his
children (i.e., a large tract of expensive property
for his daughter). The Union made these state
ments, which were completely false, during visits to
the homes of the employees, of which the Employer
was unaware until after the election. The Union’s
purpose in making these misrepresentations was to
indicate that the Employer had more money available
than it was telling the employees, and/or to indi-
cate that the Employer was committing malfeasance
in spending the money which it did have. This mone-
tary issue was one of the central issues in the cam-
paign due to a recent decrease in wages and bene-
fits resulting from the company’s financial condi-
tion.

ai al es Pn

37a

In support of this Objective, the Employer submitted
the statement of its President and sole owner, Earl
Seth, Jr., as well as the statements of two employees
eligible to vote in the election. According to Seth, fol-
lowing the election several employees told him that Peti-
tioner representatives, including Union President Gerald
L. Brown, had visited the employees’ homes a few days
prior to the election and told them, inter alia, that Seth
had spent large sums of money on presents for his child-
ren, three of whom are employed by the Employer. The
employees told Seth the Petitioner’s representatives
stated the presents included the purchase of a large
farm for Seth’s daughter and similar gifts for his other
children, money which supposedly should have been spent
on behalf of Seth’s other employees. The Employer con-
tends Seth did not learn of Brown’s statements until
after the election. According to the employee statements
submitted in support of this Objection, about a week prior
to the election Brown stated the Employer had money
available (for the employees) and that Earl Seth had
bought a lot of property for his children. One employee
witness states Brown told him Seth had purchased “a
lot of property” for his daughter’s wedding present and
Brown either characterized the property as consisting of
30 acres or as costing $30,000. The Employer denies the
contents of the statements attributed in Brown. The
Employer maintains its financial status was a central
campaign issue especially since the Employer had been
forced to lay off several employees and impose an across-
the board ten percent pay reduction in October 1981. The
Petitioner denies having engaged in objectionable conduct
as described in Objection 1.

The Board has held an election may be set aside where
a party engages in last-minute misrepresentations involv-
ing a substantial departure from the truth which may
reasonably be expected to have a significant impact on
the election. General Knit of California, Inc., 239 NLRB

38a

619. Moreover, the Board has been sensitive to union
misrepresentations regarding the financial status and ac-
tivities of an employer during a campaign in which such
matters are central to the employees. In Comier Hosiery
Mills, Inc., 248 NLRB 19, the Board directed a new elec-
tion based upon the Union’s misrepresentations that the
Employer’s poor financial statement was the result of an
inprudent two million dollar loan by the Employer to a
wholly owned subsidiary. In fact, the Employer had not
made such a loan. In the instant case, however, even
assuming, arguendo, that the Employer’s allegations are
accurate, this merely establishes that the Petitioner rep-
resented: 1) the sole owner of the Employer had money
available and; 2) had purchased a substantial amount of
property and gifts for his children. The Employer’s evi-
dence does not show the Petitioner accused Seth of cor-
porate malfeasance. In all these circumstances, it does
not appear reasonable to conclude that Petitioner’s alleged
misrepresentations affected the results of the election. Ac-
cordingly, the undersigned recommends Employer’s Ob-
jection 1 be overruled in its entirety.

Objection 2

Representatives of the Petitioner also materially mis-
represented the Union’s pension plan by stating or
implying that the employees would automatically be
entitled to participate in the Union’s plan upon vot-
ing in the Union, and that the employees’ participa-
tion in the plan would be automatically paid for out
of union dues.

Objection 3 =

Representatives of the Union materially misrepre-
sented the health and welfare benefits to which the
employees would be entitled if the Union were se-
lected as the employees’ representative, stating or
implying that all of Local 61’s contracts contained
all the health and welfare benefits being promised by

39a

the Union, and leading the employees to believe they
would automatically be entitled to optical coverage
and other benefits upon mere payment of dues fol-
lowing certification of the Union.

Objection 4
The Union representatives misrepresented to numer-

ous employees the amounts of dues which the em-
ployees would have to pay to join the union.

Objection 5

The Union made various false and misleading state-
ments to the employees during the days immediately
prior to the election. Each of these statements and
the statements described above misrepresented ma-
terial and significant facts, to which the Employer
had no effective opportunity to reply, and consti-
tuted such improper conduct as to destroy the condi-
tions necessary to a fair and impartial election.

Due to certain similarities, Employer’s Objections 2,
3, 4, and 5 will be discussed together.

In support of these Objections the Employer submitted
the statements of President Seth and Supervisors Janis
Trogden and Dave Sutphin. In their statements, Seth,
Trogden and Sutphin described how employees, during
a post election company meeting, apprised them of numer-
ous misrepresentations made by Petitioner during the
election campaign. The employee told the Employer, Pe-
titioner’s agents had falsely stated or implied that em-
ployees would automatically be entitled to participate in
the Union’s pension plan upon Union certification, and
that the employees’ participation in the plan would be
automatically paid for out of union dues. According
to the Employer, employees also claimed that union repre-
sentatives inaccurately represented that if Petitioner wor
the election employees would be entitled to all benefits
contained in a standard union health plan such as free

40a

optical coverage. Further, Petitioner allegedly claimed
that employee participation in the health plan would be
paid for out of union dues. Finally, Seth, Trogden and
Sutphin describe how the employees told them that Pe-
titioner’s agents claimed the union dues would be $15
per month. The Employer contends the actual union dues
are $21 per month for apprentices and $23 per month
for journeymen. Further, the Employer asserts it did not
have an opportunity to reply to Petitioner’s misrepre-
sentations since the Employer did not learn of them
until after the election. Petitioner denies the allegations
contained in Objectives 2, 3, 4 and 5.

By mailgram dated December 23, 1981, the Employer
was advised as follows:

Objections received. As set forth in Notice of Pro-
cedures served with the Notice of Election in this
case, submit all affidavits, signed statements, docu-
ments, other supporting evidence. Absent receipt by
December 30, 1981 of specific evidence which prima
facie would warrant setting aside the election and
objections will be dismissed. Section 102.69 of the
rules and regulations requires immediate service of
objections on other parties.

The Employer’s representative was also given a copy
of the above-noted Notice of Proceedings by the Board
agent who conducted the election on December 15, 1981.
As set forth above, the Employer was notified on three
separate occasions that the Notice of Procedures spe-
cifically requires the objecting party to submit evidence
which prima facie warrant setting aside the election.
Moreover, paragraph 3(a) of the Notice of Procedures
fully apprised the Employer of the Region’s requirements
as to the form of the evidence submitted:

As to witnesses, a list of all witnesses whose testi-

mony is relied on to support the objections, together
with the written statements or affidavits incorporat-

~

4la

ing the witnesses’ testimony and signed by the wit-
ness.

In support of Objections 2, 3, 4 and 5, the Employer
merely submitted the hearsay statements of three super-
visors. The Employer failed to provide a statement from
any of the employees who witnessed the alleged acts of
Petitioner misconduct described in Objections 2, 3, 4 and
5. Accordingly, in light of the Employer’s failure to com-
ply with established Board procedures and the specific
instructions of the undersigned to provide signed state-
ments of witnesses, the undersigned recommends Em-
ployer’s Objections 2, 3, 4 and 5 be overruled in their
entirety. Bob G. Lewis d/b/a Classic Courts, 246 NLRB
603.

THE PETITIONER’S OBJECTIONS

Objection 1

Subsequent to the filing of the petition-herein and
prior to the election on December 15, 1981, the Em-
ployer, by and through its agents, representatives,
and others, began making payments for health care
benefits on behalf of employees, in order to per-
suade said employees to oppose Petitioner.

In support of this Objection, Petitioner submitted the
statements of several employees who testified prior to
July 1981, the Employer furnished employees a free health
plan, but, in August 1981, the Employer required em-
ployees to pay for the plan, apparently due to the poor
financial status of the Employer. The employee wit-
nesses further state on or about November 15, 1981,
after the Union campaign began, the Employer reestab-
lished its practice of providing the plan to employees
free of charge. Petitioner contends the Employer’s con-
duct in November was designed to persuade employees
to oppose the Petitioner. The Employer desires the Peti-
tioner’s contentions. In support of its position the Em-
ployer furnished statements and profit/loss figures dem-

42a

onstrating how the Employer’s conduct was based entirely
upon business conditions which were poor in the first
half of 1981 and dramatically improved during t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0738%3A1. Public record. Not legal advice.