On Application for Enforcement of an Order of the National Labor Relations Board. NLRB No. 31-CV-18658, NLRB No. 31-CA-18658.
Before: D.w. Nelson, and Reinhardt Circuit Judges and Callister*fn** District Court Judge.
Petitioner and Cross-respondent Lancaster Community Hospital petitions this court for review of the National Labor Relations Board's order finding that Lancaster had committed an unfair labor practice by refusing to bargain with the Hospital and Services Employees Union, Local 399 and instructing Lancaster to proceed to bargain with that union. The NLRB has filed a cross-petition requesting enforcement of its order and asking us to impose sanctions upon Lancaster for bringing a frivolous appeal.
The principal question is whether the Board acted within its discretion when it certified the Union as the sole bargaining agent for the hospital employees, over Lancaster's objection that the union should not be certified since the integrity of the representation election process had been breached.
For the reasons set forth below, we find that the NLRB acted within its discretion when it certified the union. Therefore, the NLRB's petition for enforcement is granted.
In an election petition filed on December 1, 1988, the Union sought to represent a group of professional and non-professional employees at Lancaster hospital. The election was held on February 24, 1989. At the direction of the Board, the ballots were impounded pending final deposition of certain unfair labor practice charges.
On August 8, 1989, the envelopes containing the ballots were opened. Out of approximately 421 eligible voters, 191 cast votes for union representation, 174 cast votes against, and 23 votes were challenged. The Board's Disposition of the challenged ballots is not now before the Court.
On August 15, 1989, Lancaster filed timely objections to the election. We are concerned with objection 9 where Lancaster alleged that the security of the impounded ballots was violated while in the custody and control of the Board. After conducting an investigation, the Board's Regional Director ordered a hearing to resolve the matter. On August 22, 1990, following a hearing at which evidence was received and testimony was heard, the hearing officer issued a report recommending that the Hospital's objection be overruled and that the union be certified. On January 4, 1991, the Board Chairman issued a supplemental decision adopting the hearing officer's findings and certifying the Union as the employees' exclusive bargaining representative.
The Union proceeded to ask Lancaster to bargain. Lancaster refused and the Union filed an unfair labor practice charge. The General Counsel for the NLRB then filed a motion for summary judgment which Lancaster opposed on the ground that the certification of the Union was contrary to law.
On June 12, 1991, the Board granted the General Counsel's motion for summary judgment. The Board determined that the issue of the integrity of the election process had already been litigated and that Lancaster failed to present any new evidence or special circumstance that would warrant re-litigation of the matter. In addition, the Board found that Lancaster's refusal to bargain constituted an unfair labor practice in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (Act), 29 U.S.C. §§ 158(a)(1) and (5). The Board ordered Lancaster to bargain with the Union.
Lancaster has properly preserved the issue of the propriety of the Union's certification for appellate review. Because election certifications are not enforceable final orders, AFL. v. NLRB, 308 U.S. 401, (1940), an employer challenging election irregularities in the Ninth Circuit must present its objections both in the certification proceeding and the unfair labor practice proceeding to preserve the issue for appellate review. NLRB v. Belcor, Inc., 652 F.2d 856, 858 n.2 (9th Cir. 1981).
We conduct a limited review of the Board's underlying decision. NLRB v. Cal-Western Transport, 870 F.2d 1481, 1483 (9th Cir. 1989). The Board has broad discretion to determine the propriety of the union representation election process. Micronesian Telecommunications Corp. v. NLRB, 820 F.2d 1097, 1101 (9th Cir. 1987). Therefore, we will not overturn a Board decision to certify a union unless it has abused its discretion. Cal-Western Transport, 870 F.2d at 1484. The Board's order must be enforced ...