Lead Opinion
Cirсuit Judge TATEL filed a separate opinion concurring in part and dissenting in part.
B B & L, Inc. (B B & L) petitions for review of an order of the National Labor Relations Board (NLRB or Board) holding that B B & L violated sections 8(a)(1), (5) and 2(6), (7) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5) and 152(6), (7), by refusing to bargain with the Drivers and Employees of the Petroleum Industry, Local Union No. 273 a/w International Brotherhood of Teamsters, AFL-CIO (Union) aftеr the Union had been certified as the exclusive bargaining representative of B B & L’s full-time and regular part-time truck drivers at its Coraopolis, Pennsylvania terminal. Specifically, B B & L objects to the Board’s conclusion that a part-time, on-call truck driver was ineligible to vote in the union certification election because he had not worked an average of four hours per week during the quarter preceding the election eligibility date. The Board has cross-petitioned for enforcement of its order. As more fully set out below, we conclude that the Board did not — and cannot — justify its rigid adherence to the “four-hour rule” in light of its past flexible treatment of similarly situated employees. Accordingly, we grant B B & L’s petition for review and deny the Board’s cross-petition for еnforcement.
I.
In early May 1992, B B & L and the Union entered into a stipulated election agreement to determine whether the Union would represent B B & L’s full-time and regular part-time Coraopolis truck drivers. The agreement provided for mail-in voting by eligible drivers employed during the payroll period ending May 2, 1992. Twelve ballots were cast and of the eleven counted six favored Union representation, while five opposed it. The twelfth ballot, submitted by Kenneth Musgrave, B B & L’s sole part-time driver, was challenged by the Union on the ground that he worked so few hours in the quarter preceding the election that he lacked sufficient interest in the bargaining unit to vote in the representation election. Because Mus-grave’s vote could determine the election’s outcome, the Board’s regional dirеctor began an investigation of Musgrave’s eligibility and referred the matter for hearing.
A hearing was held on July 28,1992 and on September 10,1992 the hearing officer issued
By order dated March 1, 1993, the Board adopted the hearing officer’s recommendations and findings, while noting she had mis-charaeterized Board precedent as requiring that Musgrave average four hours of work per week in the quarter preceding the election rather than in the quarter preceding the eligibility date.
Despite the certification order, B B & L refused to bаrgain with the Union, claiming the certification was invalid because Mus-grave’s ballot should have been counted. As a result, the Union filed an unfair labor practice charge against B B & L.
II.
The coürt has jurisdiction over B B & L’s petition for review under 29 U.S.C. § 160(f) and over the Board’s cross-application for enforcement under 29 U.S.C. § 160(e). The Board exercises broad discretion when determining thе composition of the bargaining unit under 29 U.S.C. § 159(b). See Packard Motor Car Co. v. NLRB,
The Board has long applied a general rule that temporary, seasonal or contingent employees are not part of a unit comprised of regular and part-time employees, and therefore are not eligible to vote in a representation election, unless they average four or more hours of work per week during the quarter preceding the election еligibility date. See Saratoga County Chapter NYS-ARC, Inc.,
The four-hour formula is based on the rational premise that employees who work fеwer than four hours per week generally lack sufficient continuity and regularity of employment to establish community of interest with other unit employees. Trump Taj Mahal Assocs.,
For example, in Median, Inc.,
More instructive here are Board decisions addressing the eligibility of newly hired employees and those on leave during the quarter preceding the eligibility date. In Stockham Valve & Fittings, Inc.,
Here, Musgrave was hired in August 1991 to replace Charles Troutman who had earlier announced his intent to retire before April 1, 1992 and who in fact retired on March 31, 1992. Troutman, an on-call driver, worked more than the requisite four-hour weekly average during each of the last two quarters before his retirement, including the first quarter of 1992. In the quarter after Trout-man rеtired — the quarter during which the election took place — Musgrave too averaged more than four hours per week. In other words, Musgrave was hired to fill a position that consistently required more than the minimum four-hour weekly average during a given quarter and he met that minimum once his predecessor retired and he became, as intended, the terminal’s sole on-call driver. Thus, there can be little question that Mus-grave’s employment was continuous and regular, in that it required more than four hours of work per week on average, and that Mus-grave therefore shared a community of interest with the other Coraopolis drivers.
In sum, the Board has deviated from its usual formula, which focuses on the employee’s work pattern in the quarter preceding the eligibility date, in cases involving pregnant workers on leave, newly hired workers and workers in an industry with
So ordered.
Notes
. The Board determined that “[tjhis inadvertent error does not affect the result." JA 330 n. 1.
. Refusing to bargain and thereby engendering an unfair labor practice complaint is the standard route to challenge a certification order, which is not subject to direct review. See, e.g., St. Margaret Memorial Hosp. v. NLRB,
. Continuity and regularity of employment are two of the factors considered in determining community of interest; others include the employee's duties, supervision and pay. See TriState Transp. Co.,
. No one disputes the adequacy here of other factors considered in determining community of interest. See supra note 3.
. Given the Board’s insistence on “inclusive" eligibility criteria, its refusal in Trump Taj Mahal to determine community of interest by percentage of days or weeks, rather than average hours, worked and its focus in Beverly Enters, and Stockham Valve on the period between the eligibility date and the election, the Board could not, as the dissent suggests, find Musgrave ineligible on the ground that he worked only one day between Troutman’s retirement on April 1 and the eligibility date of May 2. The employee found eligible in Beverly Enters, worked 11.5 hours in the week before the eligibility date and an average of 7 hours weekly between the eligibility date and the election; Musgrave worked 10 hours in the week before the eligibility date and an average of about 9 hours weekly between the eligibility date and the election. That Musgrave worked only one day between April 1 and the eligibility date is of no significance as the Board appears never to have used the period between a relevant change of circumstance and the eligibility date as a basis for excluding workers.
. In its brief, the Board was not responsive on this issue. Regarding new hires, the Board stаted: "The Court should also reject the Company's implicit attempt to have this Court measure Mus-grave's voter eligibility as if he were a newly hired employee. Simply put, as the Company concedes, Musgrave was not a newly hired employee — he became an on-call employee in August 1991....” NLRB Brief at 20 (footnote omitted). The Board was no more expansive in discussing temporary, lаid-off or seasonal employees: "Musgrave was neither a temporary, nor a laid-off, nor a seasonal employee. Rather, he was a casual or on-call driver who had worked for a non-seasonal employer since August 1991.” Id. at 22. In each case, the Board simply noted that Musgrave's status differs from that of other employees who have been treated differently, without explaining why the difference is significant.
Concurrence Opinion
concurring in part and dissenting in part:
I agree that the Board failed to explain its decision adequately, and thus concur with the majority’s denial of the Board’s petition for enforcement. But because I think it is possible for the Board to set forth a rational and consistent explanation for not counting Mus-grave’s ballot, I would remand to the Board for further explanation.
The Board’s mаin flaw was not that it improperly applied the law, but that it failed to explain why it did not follow the flexible approach it has taken in some past cases. As I read those cases, the Board has deviated from the four-hour rule in three specific circumstances: 1) where employment in the particular industry is by its nature sporadic, see Trump Taj Mahal Assocs.,
The responsibility for deciding whether one of these exceptions applies, or a more general exception implicit in them, is the Board’s, not ours. We should take that responsibility from the Board — that is, reverse without remanding — only if we are sure that no way exists for it to reasonably articulate a basis for excluding Musgrave’s ballot. This is not such a case.
The Board could reasonably find, for example, that the first two exceptions do not apply because B B & L’s business is not sporadic, and because Musgrave’s irregular work was not due to personal circumstances. As for the third exception, the Board could conclude that Musgrave was clearly not a “new hire” in the sense of Stockham Valve or Pat’s Blue Ribbons since he was working for B B & L on a casual basis for seven months
The majority points out that the Board “appears never to have used the period between a relevant change of circumstance and the eligibility date as a basis for excluding workers.” Maj.Op. at 371 n. 5 (emphasis omitted). This is true, but only because the “relevant change of circumstance” in Stock-ham Valve, Beverly Enterprises, and other “new hire” decisions has always involved an entirely new hire, never, as here, the evolution of a “casual” into a “part-time” employee. In these circumstances, the Board could reasonably conclude that it will not consider a continuing “casual” employee eligible to participate in the election, even if he has ostensibly changed jobs, unless a change in the hours or duties of that employee demonstrates that the employee has come to share the community of interest enjoyed by regular employees. This is at least one explanation that the Board could articulate on remand which would support its decision to exclude Musgrave’s ballot and to which we could defer. By reversing without remanding, the majority precludes the Board from articulating this or other plausible explanations and substitutes the court’s own judgment for the Board’s expertise in the arena of representation. I think the better route — and one that best ensures that national labor policies and the certainty of the four-hour rule are advanced — is to remand this case to the Board so that it can better articulate how its eligibility rules apply to the unique circumstances of this case.