                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-1999

NLRB v. Cedar Tree Press
Precedential or Non-Precedential:

Docket 98-3086




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Filed March 9, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-3086

NATIONAL LABOR RELATIONS BOARD,

       Petitioner,

v.

THE CEDAR TREE PRESS, INC.,

       Respondent

THE GRAPHIC COMMUNICATIONS INTERNATIONAL
UNION LOCAL 14M AFL-CIO,

       Intervenor
       (See Clerk's Order of 3/11/98)

ON APPLICATION FOR ENFORCEMENT
FROM NATIONAL LABOR RELATIONS BOARD
( No. 4-CA-25843)

ARGUED OCTOBER 26, 1998

BEFORE: STAPLETON, LEWIS, and MAGILL,*
Circuit Judges.

(Filed March 9, 1999)



_________________________________________________________________

* Honorable Frank J. Magill, Senior Circuit Judge for the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
       AILEEN A. ARMSTRONG
       CHARLES P. DONNELLY
       MEREDITH L. JASON (ARGUED)
       National Labor Relations Board
       1099 14th Street, N.W., Suite 8101
       Washington, DC 20570-0001

        Attorneys for Petitioner

       STEPHEN C. RICHMAN
       ANNE C. RITTERSPACH (ARGUED)
       Markowitz & Richman
       121 South Broad Street, Suite 1100
       Philadelphia, PA 19107

        Attorneys for Intervenor Petitioner

       SHELDON N. SANDLER (ARGUED)
       Young, Conaway, Stargatt & Taylor
       Post Office Box 391
       Rodney Square North, 11th Floor
       Wilmington, DE 19899-0391

        Attorney for Respondent

OPINION OF THE COURT

LEWIS, Circuit Judge.

The National Labor Relations Board ("NLRB" or"Board")
petitions for enforcement of its order directing Cedar Tree
Press, Inc. ("Cedar Tree" or "company") to bargain with the
Graphic Communications International Union, Local 14-M,
AFL-CIO ("union"). Although Cedar Tree concedes that it
has refused to recognize or bargain with the union, the
company contends that the NLRB should not have certified
the union. More specifically, Cedar Tree asserts that the
Board abused its discretion by refusing to issue an
absentee mail ballot to an eligible member of the bargaining
unit who was unable to be present on the day of the union
representation election. In this case, however, the NLRB
adhered to its internal guidelines prohibiting a vacationing

                                  2
employee from voting by absentee ballot. Accordingly, we
reject the company's contention and will enforce the
Board's order.

I.

Cedar Tree operates a commercial printing business in
Wilmington, Delaware. On November 1, 1996, the union
filed a representation petition with the NLRB, seeking
certification as the collective bargaining representative of
certain Cedar Tree employees. In late December 1996, the
NLRB announced that the representation election would be
held on January 8, 1997.

David R. Perrine, an employee who was part of the
bargaining unit, had previously arranged to be in Puerto
Vallarta, Mexico, on January 8. Perrine had won an all-
expenses paid vacation in a supermarket contest and he
and his wife had scheduled their vacation in October 1996,
well before Perrine could have known of the election date,
for the period between January 3 through January 10,
1997. Upon learning of the conflict, Perrine asked the NLRB
for an absentee ballot so that he could vote in the election.
A Board representative informed him that NLRB policy
forbids absentee ballots for vacationing employees.

The NLRB conducted the secret-ballot election, on
January 8, 1997 as scheduled, without Perrine's
participation. Forty-nine of the 52 eligible employees voted.
The tally totaled 25 votes for representation by the union
and 24 votes against representation; thus, the outcome
turned on a single vote.

On January 14, 1997, the company filed a timely
objection to the election, alleging that the NLRB improperly
denied Perrine an absentee ballot. On February 17, the
NLRB's acting regional director issued a decision overruling
the company's objection and certifying the union. The
company filed a request for review of the acting regional
director's decision with the Board, but that request was
denied. Following certification of the union, Cedar Tree
continued to refuse to bargain. On July 24, 1997, the NLRB
issued a decision and order finding that the company's
refusal to bargain with the union violated Section 8(a)(5)

                               3
and (1) of the National Labor Relations Act.1 On February
12, 1998, the NLRB filed this petition for enforcement of its
July 24 order.

II.

We have jurisdiction over this matter pursuant to Section
10(e) of the National Labor Relations Act. See 29 U.S.C.
S160(e). Although appellate review of a legal question raised
in a Board decision and order is plenary, when reviewing
the policies and procedures established by the Board on the
conduct of elections, we extend substantial deference to the
Board. See Cavert Acquisition Co. v. NLRB, 83 F.3d 598,
603 (3d Cir. 1996); see also Jamesway Corp. v. NLRB, 676
F.2d 63, 67 (3d Cir. 1982) (noting that NLRB v. A.J. Tower
Co., 329 U.S. 324 (1946) "accords the NLRB wide discretion
in formulating election procedures. . .").

Since the NLRB enjoys wide discretion in its
administration of representation elections, as long as "the
Board adopts a rule that is rational and consistent with the
Act, then the rule is entitled to deference from the courts."
District 1199P, National Union of Hospital and Health Care
Employees v. NLRB, 864 F.2d 1096, 1101 (3d Cir. 1989)
(quoting Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27, 41-42 (1987)). Thus, we review the Board's
decision for abuse of discretion.

In the National Labor Relations Board Casehandling
Manual, the NLRB takes the following position:

       In a mixed manual-mail election, mail ballots should
       be sent only to those who cannot vote in person
_________________________________________________________________

1. The Act states, in relevant part:

         (a) It shall be an unfair labor practice for an employer --

       (1) to interfere with, restrain, or coerce employees in the
exercise of
       the rights guaranteed in section 157 of this title;

         . . .

         (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. SS 158(a)(1) and (5).
4
       because of employer action (e.g., assignment of
       employees to duties that make it impossible or
       impractical for them to come to a polling place).
       Pipeline employees, seamen, and traveling utility crews
       usually vote by mail.

       Mail Ballots should not be sent to those who are in the
       Armed Forces, are ill at home or in a hospital, are on
       vacation, or are on leave of absence due to their own
       decision or condition.

Manual S 11336.1 (emphasis added).

Cedar Tree argues that the NLRB "should not have
treated its provisions concerning absentee voting as
mandating rejection of [the] absentee ballot request [of
Perrine] without consideration of the individual facts
[regarding his circumstances]." Respondent's Br. at 12.
Cedar Tree contends that the regional director should have
disregarded the language of the casehandling manual,
which clearly states the NLRB's policy prohibiting absentee
ballots, and instead should have made an exception in
Perrine's case. In fact, Cedar Tree asserts, "it was an abuse
of discretion to deny [Perrine] the opportunity to vote by
absentee, mail ballot based on . . . the Manual."
Respondent's Br. at 15. We disagree.

Although the casehandling manual is not binding on the
Board, a regional director's decision to follow those
guidelines does not constitute an abuse of discretion.2 See
Shepard Convention Services, Inc. v. NLRB, 85 F.3d 671,
674 & n.7 (D.C. Cir. 1996). While not authoritative, the
manual's "provisions a fortiori reflect the Board's policies."
Id. In fact, the manual's guidelines represent the Board's
reasoned policy choices and are designed to relieve regional
officers from having to exercise discretion regarding a
variety of matters. In this case, the NLRB has adopted a
_________________________________________________________________

2. See e.g., Kwik Care Ltd. v. NLRB, 82 F.3d 1122, 1126 (D.C. Cir. 1996);
London's Farm Dairy, Inc. v. NLRB, 1997 WL 345623 (N.L.R.B.) (June 20,
1997) (noting that the casehandling manual does not constitute "a form
of authority binding . . . on the Board."); National Labor Relations Board
Casehandling Manual, Part Two, Purpose of Manual ("The guidelines
included . . . are not intended to be and should not be viewed as binding
procedural rules.").

                               5
policy of freeing regional directors from the burden of
individualized consideration of applications by vacationing
employees for absentee ballots. The NLRB did not abuse its
discretion by sustaining the Regional Director's decision to
deny Perrine an absentee ballot in accordance with the
manual.3

Cedar Tree also fails to identify any statutory authority
which would compel the Board to make individualized
determinations about absentee ballots. Instead, the
company relies on a series of cases related to the NLRB's
discretion to mandate mail ballot elections to argue for
independent discretion in granting absentee ballots for
vacationing employees in on-site elections. See e.g.,
Shepard Convention Servs., 314 N.L.R.B. 689 (1994), enf.
denied, 85 F.3d 671 (D.C. Cir. 1996) (permitting mail
balloting because of the large number of "on-call"
employees); London's Dairy Farm Inc., 323 NLRB 186 (June
20, 1997) (permitting mail balloting because of staggered
shifts); Reynolds Wheels Int'l, 323 NLRB 187 (June 20,
1997) (permitting mail balloting because of employees
scattered geographically). However, these mail balloting
cases are easily distinguished from absentee ballots in
manual (i.e., on-site) elections.

Mail ballot elections provide an alternative method to
traditional manual ballot representation elections. The
decision to conduct an election either completely or
partially by mail ballot is based on specific employment
factors (i.e., wide geographic disbursement of employees or
staggered work schedules) that make on-site elections
impractical. See Manual S 11314. This decision does not
_________________________________________________________________

3. Cedar Tree points out that the manual expressly provides that it is
intended only "to provide procedural and operational guidance for the
agency's staff " and that it "is expected that there may be departures
through the exercise of professional judgment in varying circumstances."
It faults the Acting Regional Director for having treated the manual as
mandating rejection of the request for an absentee ballot and the Board
for turning a non-binding guideline into an inflexible rule. We read the
manual as establishing a policy that, in stipulated circumstances, a
Regional Director can elect not to give individualized consideration to
applications for absentee ballots. As explained hereafter, we reject the
argument that this policy is arbitrary and capricious.

                               6
require an individualized determination of personal
circumstances to award mail ballots upon request. Instead,
the decision to use mail balloting as the form of election is
made prior to setting the election date. The employees are
easily identified; in fact, they are pre-determined. The
purpose of such narrow criteria is to ensure that mail
balloting is employed in a limited number of cases each
year.

Cedar Tree has not raised any specific allegations
challenging the way in which the NLRB's absentee ballot
policy was applied in this case. Instead, it merely attacks
the fact that the policy was applied at all while deriding the
Board's action as "arbitrary and erroneous." Nonetheless,
despite our traditional deference to the Board, we are
required to examine the policy and the Board's reasons for
adopting it. See Bro-Tech Corp. v. NLRB, 105 F.3d 890, 894
(3d Cir. 1997). Upon review, we conclude that an
assortment of sound policy reasons exist to prohibit
absentee ballots.

First, requiring regional directors to accommodate
individual requests for absentee ballots, as Cedar Tree
advocates, would apply to virtually every NLRB election. It
seems obvious that this would significantly alter the
Board's work and allocation of resources, perhaps leading
to considerable delay, administrative burdens and
bureaucratic confusion in conducting elections. 4 As the
NLRB notes, an individualized determination regarding the
availability of an absentee ballot would prove time-
consuming and potentially lead to extensive post-election
litigation. On the other hand, a blanket rule requiring the
use of absentee ballots upon demand would be particularly
burdensome and costly for the NLRB to implement and
administer.

The logistical demands of delivering, receiving, processing
and counting absentee ballots in nearly 3,500 separate
elections each year would require the NLRB to allocate
significant financial resources. As a government agency, the
Board has limited resources and must make difficult policy
_________________________________________________________________

4. For instance, in fiscal year 1997, the Board conducted 3,480
representation elections. See Petitioner's Br. at 13.

                               7
choices based upon those resources while attempting to
serve the public interest and fulfill its legislative mandate.
Obviously, mandating absentee ballots in all elections
would be a costly endeavor. We believe the Board has made
a valid, well-reasoned determination to deploy its limited
resources elsewhere and that this determination should not
be disturbed without good cause or clear statutory authority.5
See NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,
787 (1990) ("we will uphold a Board rule as long as it is
rational and consistent . . . even if we would have
formulated a different rule had we sat on the Board"); NLRB
v. Kemmerer Village, Inc., 907 F.2d 661, 663 (7th Cir.
1990).

Second, the widespread use of absentee ballots is not
without risks. Absentee ballot procedures would add an
additional layer of bureaucracy and complexity which, if not
handled properly, could compromise the fair election
process. See e.g., Marks v. Stinson, 19 F.3d 873 (3d Cir.
1994) (a case in which numerous illegally obtained
absentee ballots were cast in a Pennsylvania state senate
election); Wilson & Co., 37 NLRB 944, 952 (1941) (noting
that absentee balloting, which was permitted at that time,
"frequently raised material and substantial issues relating
to the conduct of the ballot and the election.").

Moreover, the Board's current policy forbidding absentee
_________________________________________________________________

5. Interestingly, to demonstrate that this is a reasoned policy choice, we
note that both the Board's union-side and management-side advisory
panels have advised the Board against allocating its precious and limited
resources for absentee ballots. See Remarks at National Labor Relations
Board Union Advisory Panel Meeting (March 12, 1998) at 10-11 (union
advisor commenting that "[r]esources are limited. We recognize that . . .
as long as the [Board] is so crippled . . . with respect to its resources,
we do question the value of devoting . . . any capital to [the absentee
ballot] issue."); Remarks at National Labor Relations Board Management
Advisory Panel (March 18, 1998) at 4-5 (management advisor
commenting that a `consensus' of the panel determined that "[a]lthough
there may be individual cases where it would be to an employer's
advantage to allow an employee to cast an absentee ballot, . . . we
believe that in the long run it will be in the best interest of both
employers and unions and employees and indeed the[Board] itself not
to allow the use of absentee ballots.").

                               8
ballots regardless of individual circumstances provides the
advantages of predictability and even-handed application.
See Cavert Acquisition Co., 83 F.3d at 606 (approving the
Board's voting eligibility standard permitting employees
absent from work for medical reasons to remain eligible to
vote without an individualized inquiry into whether they are
"reasonably expected" to return to work because it is
"simple, predictable and easily administered."). The policy
does not provide a systematic advantage to any interested
party, yet it maintains the integrity of the secret election
process which has been a hallmark of NLRB representative
elections.

In addition, the widespread use of absentee ballots could
easily delay the election process by postponing vote counts.
Although there are logistical procedures that could ensure
that absentee ballots would be mailed and received before
the actual manual election, such procedures would
unquestionably require the NLRB to significantly extend the
time between the announcement of the election date and
the actual vote.6 We can imagine a litany of unforeseen and
unintended consequences (e.g., an extension of the
campaigning period, increased tension between
management and labor, driving up of campaign costs, etc.)
from extending the time between the election date
announcement and the actual election date. We believe
such a determination is better left to the election experts at
the NLRB.

III.

In conclusion, we are satisfied that the NLRB's policy
choice regarding absentee ballots is supported by cogent
and reliable analysis. We do not believe it is our role to
substitute our judgment for that of the Board in the
adoption and application of policies governing
representation elections. See NLRB v. L & J Equipment Co.,
745 F.2d 224, 230 (3d Cir. 1984). We find that the acting
regional director's decision to follow the manual guidelines
did not constitute an abuse of discretion. Therefore, we will
_________________________________________________________________

6. In this case, for example, the election date was announced on
December 30, 1996, and held on January 8, 1997.

                               9
grant the NLRB's petition for enforcement of its July 24,
1997 order.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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