690 F.3d 969
8th Cir.2012Background
- Union petitions for certification of 135 employees at Warren Unilube West Memphis; stipulated election agreement; Board scheduled election for Oct 8, 2010.
- Newspaper editorial Oct 6, 2010 warned of dire consequences of a union victory and plant closure; Union filed unfair labor practice charge the next day.
- Board’s blocking charge policy allowed postponement, impounding ballots, or certification prior to investigation when charges filed too late; Regional Director postponed the election and abeyed the petition.
- Union requested to proceed with petition despite pending charge; November 5, 2010 election held; 69–56 vote in favor of Union; Warren Unilube filed objections alleging delay and improper conduct.
- Board certified Union and Warren Unilube refused to bargain; Board granted summary judgment; petition for review denied and Board’s order enforced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the election should be set aside due to delay caused by the Union’s charge | Unilube argues delay was baseless to deter free choice | Union’s charge had basis; postponement reasonable under policy | No; substantial evidence supports postponement and no basis to set aside election |
| Whether the Board abused its discretion requiring an evidentiary hearing | Unilube claims prima facie facts warrant a hearing | No prima facie case; no hearing needed | No; no substantial and material facts showing need for hearing |
| Whether the Board properly applied the blocking charge policy and allowed postponement | Unilube contends policy misused to delay election | Policy properly applied given timing, seriousness of allegations | Yes; Board acted within discretion and the postponement was justified |
| Whether the Board’s certification decision is reviewable and enforceable despite challenge to election | Unilube seeks to negate bargaining duty by attacking election validity | Review limited; certification upheld if supported by substantial evidence | Enforceable; petition denied and Board’s order enforced |
Key Cases Cited
- NLRB v. A.J. Tower Co., 329 U.S. 324 (U.S. 1946) (Board discretion in procedure for ensuring free choice)
- Beaird-Poulan Div. v. NLRB, 649 F.2d 589 (8th Cir. 1981) (substantial evidence standard in election improprieties)
- Millard Processing Servs., Inc. v. NLRB, 2 F.3d 258 (8th Cir. 1993) (need for showing improprieties affected results)
- Hope Elec. Corp., 293 F.3d 409 (8th Cir. 2002) (blocking charge policy and postponement guidance)
- Superior of Missouri, Inc., 233 F.3d 547 (8th Cir. 2000) (review of certification when challenge to election occurs)
- Wright Memorial Hospital v. NLRB, 771 F.2d 400 (8th Cir. 1985) (special circumstance where Board delay affected neutrality)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (substantial evidence standard in Board findings)
- Arlington Hotel Co. v. NLRB, 712 F.2d 333 (8th Cir. 1983) (review limited to reasonableness of Board decision)