1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"NLRB v. Cedar Tree Press" (1999). 1999 Decisions. Paper 60.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/60
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 allexpenses 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 timeconsuming 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 

 10