Pace University v. National Labor Relations Board
Pace University v. National Labor Relations Board
Opinion of the Court
JUDGMENT
This cause was considered on the record from the National Labor Relations Board (“Board”) and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C. Cir. R. 34(j). It is
ORDERED AND ADJUDGED that the petition for review is denied, and the Board’s cross-application for enforcement is granted.
In two elections, a bargaining unit of transportation employees at Pace University voted to accept union representation by the New York State United Teachers. The Board set aside the first election, held on October 20, 2005, after the union and the university agreed that it was flawed. Following a re-run election, held on January 30, 2006, the Board certified the union as the unit’s exclusive representative, but the university refused to bargain, arguing that the second election was also invalid. The Board held this refusal to be an unfair labor practice and ordered the university to bargain with the union.
On appeal, the university challenges the validity of the election on four grounds, none of which persuades us to discount the “wide degree of deference”. NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). The university argues that the Board should have held a hearing to address improprieties in the first election. Given the Board’s decision to set aside the first election and hold a second, we can find no error, let alone any abuse of discretion, in the Board’s determination that no hearing was needed. See N. of Mkt. Senior Servs., Inc. v. NLRB, 204 F.3d 1163, 1166 (D.C.Cir. 2000) (acknowledging that a rerun election is a sufficient substitute for a hearing). The university’s suggestion that the taint from the first election somehow invalidated the second not only fails to account for the law of this circuit that “a court will overturn a Board decision to certify an election in only the rarest of circumstances,” id. at 1167, but also relies entirely on a case from the Seventh Circuit whose facts bear only scant resemblance to those before us. See NLRB v. Fresh’ndAire Co., 226 F.2d 737 (7th Cir. 1955) (invalidating re-run election after the Board failed to correct the union-aided misperception that employer’s conduct had voided initial election, where the initial election’s actual flaw was the egregiously pro-union conduct of a Board agent). The university’s resort to a “totality of the circumstances” argument offers nothing new but asks us, in effect, to displace the Board and its expertise with our own judgment, something we may not do. Amalgamated Clothing & Textile Workers Union v. NLRB, 736 F.2d 1559, 1562-63 (D.C.Cir. 1984).
Without any legal justification for invalidating the second election, the university cannot prevail. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41.
Reference
- Full Case Name
- PACE UNIVERSITY v. NATIONAL LABOR RELATIONS BOARD
- Status
- Published