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D ock e t 98-3086

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. e du/thir dc ir c uit_1999/60Filed 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 f or 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 Ce dar Tree Press, Inc. ("Cedar Tree" or "company") to bargain with the Graphic Communications International Union, Local 1 4-M, AFL-CIO ("union"). Although Cedar Tree concedes tha t it has refused to recognize or bargain with the union, the company contends that the NLRB should not have cert ified the union. More specifically, Cedar Tree asserts th at the Board abused its discretion by refusing to issue an absentee mail ballot to an eligible member of the b argaining 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 va cationing

2employee from voting by absentee ballot. Accordingl y, we

reject the company's contention and will enforce th e Board's order.

I.

Cedar Tree operates a commercial printing business in Wilmington, Delaware. On November 1, 1996, the unio n filed a representation petition with the NLRB, seek ing certification as the collective bargaining represen tative of certain Cedar Tree employees. In late December 1996 , the NLRB announced that the representation election wou ld be held on January 8, 1997.

David R. Perrine, an employee who was part of the bargaining unit, had previously arranged to be in P uerto 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 Octobe r 1996,
well before Perrine could have known of the electio n 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 polic y 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 employ ees voted. The tally totaled 25 votes for representation by th e union and 24 votes against representation; thus, the outc ome turned on a single vote.

On January 14, 1997, the company filed a timely objection to the election, alleging that the NLRB i mproperly denied Perrine an absentee ballot. On February 17, the NLRB's acting regional director issued a decision o verruling the company's objection and certifying the union. T he company filed a request for review of the acting re gional director's decision with the Board, but that reques t was denied. Following certification of the union, Cedar Tree continued to refuse to bargain. On July 24, 1997, t he NLRB issued a decision and order finding that the compan y's refusal to bargain with the union violated Section 8(a)(5)

3and (1) of the National Labor Relations Act.1 On Fe bruary

12, 1998, the NLRB filed this petition for enforcem ent of its July 24 order.

II.

We have jurisdiction over this matter pursuant to S ection 10(e) of the National Labor Relations Act. See 29 U .S.C. S160(e). Although appellate review of a legal quest ion raised in a Board decision and order is plenary, when revi ewing the policies and procedures established by the Boar d on the conduct of elections, we extend substantial deferen ce 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 dis cretion 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 th e courts." District 1199P, National Union of Hospital and Heal th Care Employees v. NLRB, 864 F.2d 1096, 1101 (3d Cir. 198 9) (quoting Fall River Dyeing & Finishing Corp. v. NLR B, 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 ballot s should be sent only to those who cannot vote in per son

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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 e mployees in the
exercise of the rights guaranteed in section 157 of this title;

. . .

(5) to refuse to bargain collectively with t he representatives of
his employees, subject to the provisions of sect ion 159(a) of this
title.

29 U.S.C. SS 158(a)(1) and (5).4because of employer action (e.g., assignment of

employees to duties that make it impossible or impractical for them to come to a polling pl ace). Pipeline employees, seamen, and traveling ut ility 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 hospit al, 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 a s mandating rejection of [the] absentee ballot reques t [of Perrine] without consideration of the individual fa cts [regarding his circumstances]." Respondent's Br. at 12. Cedar Tree contends that the regional director shou ld 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 wa s 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 tho se guidelines does not constitute an abuse of discreti on.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 regardi ng a variety of matters. In this case, the NLRB has adop ted a

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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."); Nationa l Labor Relations Board Casehandling Manual, Part Two, Purpose of Manual (" The guidelines
included . . . are not intended to be and should no t be viewed as binding procedural rules.").

5policy of freeing regional directors from the burde n of

individualized consideration of applications by vac ationing employees for absentee ballots. The NLRB did not ab use its discretion by sustaining the Regional Director's de cision to deny Perrine an absentee ballot in accordance with the
manual.3

Cedar Tree also fails to identify any statutory aut hority 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 argu e 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 ma il 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 sta ggered shifts); Reynolds Wheels Int'l, 323 NLRB 187 (June 20, 1997) (permitting mail balloting because of employe es scattered geographically). However, these mail ball oting cases are easily distinguished from absentee ballot s 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 o r partially by mail ballot is based on specific emplo yment factors (i.e., wide geographic disbursement of empl oyees or staggered work schedules) that make on-site electio ns impractical. See Manual S 11314. This decision does not

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3. Cedar Tree points out that the manual expressly provides that it is intended only "to provide procedural and operationa l guidance for the agency's staff " and that it "is expected that ther e may be departures through the exercise of professional judgment in va rying circumstances." It faults the Acting Regional Director for having t reated the manual as mandating rejection of the request for an absentee ballot and the Board for turning a non-binding guideline into an inflexi ble rule. We read the manual as establishing a policy that, in stipulated circumstances, a Regional Director can elect not to give individuali zed consideration to applications for absentee ballots. As explained her eafter, we reject the argument that this policy is arbitrary and capricio us.

6require an individualized determination of personal

circumstances to award mail ballots upon request. I nstead, the decision to use mail balloting as the form of e lection is made prior to setting the election date. The employ ees are easily identified; in fact, they are pre-determined . The purpose of such narrow criteria is to ensure that m ail 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 ba llot policy was applied in this case. Instead, it merely attacks the fact that the policy was applied at all while d eriding the Board's action as "arbitrary and erroneous." Noneth eless, despite our traditional deference to the Board, we are required to examine the policy and the Board's reas ons for adopting it. See Bro-Tech Corp. v. NLRB, 105 F.3d 8 90, 894 (3d Cir. 1997). Upon review, we conclude that an assortment of sound policy reasons exist to prohibi t
absentee ballots.

First, requiring regional directors to accommodate individual requests for absentee ballots, as Cedar Tree advocates, would apply to virtually every NLRB elec tion. It seems obvious that this would significantly alter t he Board's work and allocation of resources, perhaps l eading to considerable delay, administrative burdens and bureaucratic confusion in conducting elections. 4 A s the NLRB notes, an individualized determination regardi ng the availability of an absentee ballot would prove time consuming and potentially lead to extensive post-el ection litigation. On the other hand, a blanket rule requi ring the use of absentee ballots upon demand would be partic ularly burdensome and costly for the NLRB to implement and
administer.

The logistical demands of delivering, receiving, pr ocessing and counting absentee ballots in nearly 3,500 separ ate elections each year would require the NLRB to alloc ate significant financial resources. As a government ag ency, the
Board has limited resources and must make difficult policy

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4. For instance, in fiscal year 1997, the Board con ducted 3,480 representation elections. See Petitioner's Br. at 1 3.

7choices based upon those resources while attempting to

serve the public interest and fulfill its legislati ve mandate. Obviously, mandating absentee ballots in all electi ons would be a costly endeavor. We believe the Board ha s made a valid, well-reasoned determination to deploy its limited
resources elsewhere and that this determination sho uld 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 C ir. 1990).

Second, the widespread use of absentee ballots is n ot without risks. Absentee ballot procedures would add an additional layer of bureaucracy and complexity whic h, if not handled properly, could compromise the fair electio n process. See e.g., Marks v. Stinson, 19 F.3d 873 (3 d 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) (n oting that absentee balloting, which was permitted at tha t time, "frequently raised material and substantial issues relating to the conduct of the ballot and the election.").

Moreover, the Board's current policy forbidding abs entee

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5. Interestingly, to demonstrate that this is a rea soned policy choice, we note that both the Board's union-side and managemen t-side advisory panels have advised the Board against allocating it s precious and limited
resources for absentee ballots. See Remarks at Nati onal Labor Relations Board Union Advisory Panel Meeting (March 12, 1998) at 10-11 (union advisor commenting that "[r]esources are limited. W e recognize that . . . as long as the [Board] is so crippled . . . with re spect to its resources, we do question the value of devoting . . . any capi tal to [the absentee ballot] issue."); Remarks at National Labor Relatio ns Board Management Advisory Panel (March 18, 1998) at 4-5 (management advisor commenting that a `consensus' of the panel determin ed 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[B oard] itself not to allow the use of absentee ballots.").

8ballots regardless of individual circumstances prov ides the

advantages of predictability and even-handed applic ation. See Cavert Acquisition Co., 83 F.3d at 606 (approvi ng the Board's voting eligibility standard permitting empl oyees absent from work for medical reasons to remain elig ible to vote without an individualized inquiry into whether they are "reasonably expected" to return to work because it is "simple, predictable and easily administered."). Th e policy does not provide a systematic advantage to any inte rested party, yet it maintains the integrity of the secret election process which has been a hallmark of NLRB represent ative
elections.

In addition, the widespread use of absentee ballots could easily delay the election process by postponing vot e 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 ex tend the
time between the announcement of the election date and the actual vote.6 We can imagine a litany of unfore seen 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 belie ve such a determination is better left to the election experts at
the NLRB.

III.

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

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

9grant the NLRB's petition for enforcement of its Ju ly 24,

1997 order.

A True Copy:

Teste:

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

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