Timsco Inc. v. National Labor Relations Board

819 F.2d 1173, 260 U.S. App. D.C. 374, 125 L.R.R.M. (BNA) 2636, 1987 U.S. App. LEXIS 6909
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 2, 1987
Docket86-1351
StatusPublished
Cited by23 cases

This text of 819 F.2d 1173 (Timsco Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timsco Inc. v. National Labor Relations Board, 819 F.2d 1173, 260 U.S. App. D.C. 374, 125 L.R.R.M. (BNA) 2636, 1987 U.S. App. LEXIS 6909 (D.C. Cir. 1987).

Opinion

Opinion for the court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Petitioner Timsco Inc. (the Company) challenges a decision and order of the National Labor Relations Board (the Board) which found unlawful the Company’s refusal to bargain with a certified union. The Union was certified after it won the second of two secret ballot representation elections. The Board set aside the first election, which the Union lost, because it found that the Company had conducted seven coercive interrogations of employees during the election campaign. The Company urges that this action by the Board was unreasonable and that therefore the Union was not properly certified. We reject the Company’s arguments and conclude that the Board acted reasonably in finding that the seven exchanges upset the “laboratory conditions” that are supposed to prevail when employees vote on the question of union representation.

I. Factual and Procedural Background

Timsco is a company engaged in the manufacture, nonretail sale, and distribution of screen printing products in Washington, D.C. On October 25, 1984 the Graphic Communications International Union Local 285, AFL-CIO (the Union) filed a petition with the Board seeking a representation election among the Company’s production and maintenance employees. The Board conducted a secret ballot election on De *1175 cember 7, 1984 which resulted in a tie vote of 11-11 with no challenged ballots. Because it failed to obtain a majority of the votes, the Union lost its bid for representation. On December 14, 1984 the Union filed eighteen specific objections to the Company's preelection conduct. On January 18, 1985 the Board's Regional Director for Region 5 issued a report approving the Union's withdrawal of some of its objections and directing a hearing on several others.

A Board Hearing Officer held a hearing on January 28 and February 12, 1985 and issued his Report on Objections on March 19, 1985. The Report recommended that several of the Union's objections be sustained and that the December 7 election be set aside and a new election held. The Company filed timely objections to the Report and the Union filed an answering brief. On July 26, 1985 the Board issued a decision which purported to adopt generally the Hearing Officer's findings and recommendations, but relied solely on one objection-Objection 6, which charged that the Company had coercively interrogated its employees during the election campaign. The Board found it unnecessary to pass on the other objections that the Hearing Officer recommended it sustain.

Pursuant to the Board's order, the Regional Director held a second secret ballot election on August 23, 1985. This time the Union won by a vote of 11-6 with no challenged ballots. On September 4 the Union was certified as the exclusive bargaining representative of the Company's employees. By letter dated September 6, 1985 the Union requested that the Company bargain collectively. Since September 10 the Company has refused on the ground that the Union was not properly certified because the first election was incorrectly set aside. Moreover, since September 16, 1985 the Company has refused the Union's written requests to bargain over the specific issue of the discharge of probationary employee Louise Robinson. In addition to insisting that the Union was not properly certified, the Company maintains that because its decision to discharge Robinson was made on August 27, after the Union won the second election but before the Union was certified, it has no duty to bargain over the discharge. The Union argues both that notice to Robinson of her discharge took place after certification and that in any event the Company's duty to bargain runs from election rather than certification.

On September 12, 1985 the Union filed an unfair labor practice charge against the Company, which it amended on September 26. On October 24, 1985 the General Counsel issued a complaint against the Company charging that its refusal to bargain with the Union generally and over Robinson's discharge violated § 8(a)(5) and (1) of the National Labor Relations Act. These provisions make it unlawful for an employer "to refuse to bargain collectively with the representative of his employees" or to "interfere with, restrain, or coerce employees in the exercise of [their] rights [under the Act]." 29 U.S.C. § 158(a)(5) and (1). The Company answered the complaint, admitting its refusal to bargain but denying that the refusal was unlawful. On January 10, 1986 the General Counsel filed a motion for summary judgment alleging that all issues raised by the Company were or could have been raised, litigated, and decided in the underlying representation proceeding and that no newly discovered, previously unavailable evidence or special circumstances warranted relitigation. The Company responded that summary judgment was inappropriate because the certification had been improper and because there was a dispute about material facts regarding the Company's duty to bargain over Robinson's discharge. On May 27, 1986 the Board granted the General Counsel's motion for summary judgment and ordered the Company to cease and desist from unlawful conduct and to bargain with the Union generally and over Robinson's discharge. The Company now petitions this court to deny enforcement of the Board's decision and order.

II. THE APPROPRIATE STANDARD OF JUDICIAL REVIEW

The Supreme Court repeatedly has noted the "wide degree of discretion" af *1176 forded the Board by Congress in matters concerning the conduct of representation elections. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946) (citing Southern S.S. Co. v. NLRB, 316 U.S. 31, 37, 62 S.Ct. 886, 889, 86 L.Ed. 1246 (1942); NLRB v. Waterman S.S. Co., 309 U.S. 206, 226, 60 S.Ct. 493, 503, 84 L.Ed. 704 (1940); NLRB v. Falk Corp., 308 U.S. 453, 458, 60 S.Ct. 307, 310, 84 L.Ed. 396 (1940)). In its discussion of the impact of the Taft-Hartley Act of 1947 on the scope of judicial review of Board decisions, the Supreme Court reaffirmed its vision of the NLRB as an agency “equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). This court more recently has addressed the specific degree of deference due the Board’s decision to hold a rerun certification election. See Amalgamated Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559 (D.C.Cir.1984).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cadillac of Naperville, Inc. v. NLRB
14 F.4th 703 (D.C. Circuit, 2021)
The American Bottling Company v. NLRB
992 F.3d 1129 (D.C. Circuit, 2021)
Fernbach v. Raz Dairy, Inc.
881 F. Supp. 2d 452 (S.D. New York, 2012)
Prog Elec Inc v. NLRB
453 F.3d 538 (D.C. Circuit, 2006)
United Svc Auto Assn v. NLRB
387 F.3d 908 (D.C. Circuit, 2004)
Macmillan Plbsh Co v. NLRB
D.C. Circuit, 1999
Perdue Farms Inc v. NLRB
D.C. Circuit, 1998

Cite This Page — Counsel Stack

Bluebook (online)
819 F.2d 1173, 260 U.S. App. D.C. 374, 125 L.R.R.M. (BNA) 2636, 1987 U.S. App. LEXIS 6909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timsco-inc-v-national-labor-relations-board-cadc-1987.