National Labor Relations Board v. S.R.D.C., Inc.

45 F.3d 328 148 L.R.R.M. (BNA) 2257 , 129 Lab.Cas. P 11,265 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S.R.D.C., INC., Respondent. No. 93-70280. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 17, 1994. Decided Jan. 18, 1995. Angela Michelle Washington, N.L.R.B., Washington, DC, for petitioner. Thomas M. Gosselin and Jonathan K. Levy, Pahl & Gosselin, San Francisco, CA, for respondent. Petition for Review of a Decision of the National Labor Relations Board. Before: LAY, * PREGERSON, and O'SCANNLAIN, Circuit Judges. Per Curiam; Partial Concurrence and Partial Dissent by Judge O'Scannlain. PER CURIAM: 1 The National Labor Relations Board applies for enforcement of an order of the Board finding that S.R.D.C., Inc. violated section 8(a)(5) and (1) of the National Labor Relations Act ("the Act"), 29 U.S.C. Sec. 158 (a)(5) and (1), by refusing to bargain with Operating Engineers, AFL-CIO, which had been certified as the exclusive bargaining representative of a unit of S.R.D.C.'s employees. We grant enforcement of the Board's order. I. Background 2 At issue in this case are the votes of two employees of S.R.D.C. in the election which led to the…

concurring in part and dissenting in part:

While I am in agreement with the court’s decision to grant enforcement of the Board’s order based on Figueroa’s status as an eligible employee, I must respectfully dissent from the implication that we might also hold that Reyes was eligible.

As the opinion expressly states, “[s]ince the union won the election by two votes, S.R.D.C. must prevail on both challenges to succeed in setting aside the Board’s order.” The union quite properly wins the appeal if Figueroa is deemed an eligible employee. Despite our recognition of this fact, the opinion finds it necessary to address both challenges, in the process needlessly inferring adoption of the “date certain” test of NLRB v. New England Lithographic Co., 589 F.2d 29, 32 (1st Cir.1978), a rule heretofore not applied in this or any other circuit. The panel unanimously agrees that Figueroa was not a statutory supervisor and thus was eligible to vote in the election; there is no need to reach the question of whether Reyes was eligible to vote as a temporary employee. Indeed, if we were properly to reach it without entering the realm of dicta as we do, I would counsel rejection of the “date…

Partial Concurrence and Partial Dissent by Judge O’Scannlain.

The National Labor Relations Board applies for enforcement of an order of the Board finding that S.R.D.C., Inc. violated section 8(a)(5) and (1) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158 (a)(5) and (1), by refusing to bargain with Operating Engineers, AFL-CIO, which had been certified as the exclusive bargaining representative of a unit of S.R.D.C.’s employees. We grant enforcement of the Board’s order.

I. Background

At issue in this case are the votes of two employees of S.R.D.C. in the election which led to the certification of the Operating Engineers Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO (“the union”) by the Board as the exclusive bargaining representative of the S.R.D.C.’s employees.

*330 A. The Representation Proceeding

S.R.D.C. is a company engaged in the business of recycling concrete and asphalt. In December 1990, the union filed a representation petition with the Board requesting certification as the bargaining representative of the company’s recycling employees. Two months later, the Board held a secret ballot election. Of twenty-one ballots…