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SHEPARD CONVENTION SERVICES v. NATIONAL LABOR RELATIONS BOARD </h1> <p class="docCourt"> </p> <p> June 11, 1996 </p> <p class="case-parties"> <b>SHEPARD CONVENTION SERVICES, INC., PETITIONER<br><br>v.<br><br>NATIONAL LABOR RELATIONS BOARD, RESPONDENT AND INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, AFL-CIO, INTERVENOR</b><br><br> </p> <div class="caseCopy"> <div class="facLeaderBoard"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACLeaderBoard */ google_ad_slot = "8524463142"; google_ad_width = 728; google_ad_height = 90; //--> </script> <script type="text/javascript" src=""> </script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p><br> Before: Wald, Ginsburg and Henderson, Circuit Judges.</p></div> <div class="numbered-paragraph"><p> Karen LeCraft Henderson, Circuit Judge</p></div> <div class="numbered-paragraph"><p> FOR PUBLICATION</p></div> <div class="numbered-paragraph"><p> FOR THE DISTRICT OF COLUMBIA CIRCUIT</p></div> <div class="numbered-paragraph"><p> Argued April 2, 1996</p></div> <div class="numbered-paragraph"><p> On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board</p></div> <div class="numbered-paragraph"><p> Opinion for the court filed by Circuit Judge Henderson.</p></div> <div class="numbered-paragraph"><p> Shepard Convention Servs., Inc. (Shepard) petitions for review of a decision of the National Labor Relations Board (Board) finding that Shepard committed an unfair labor practice by failing to bargain with the newly certified International Alliance of Theatrical Stage Employees (Union). The Board cross-applies for enforcement of its order. Shepard alleges several defects in the election and certification process. Because the Board improperly reversed the Regional Director's decision to conduct a manual election, we grant the petition for review and deny the cross-application for enforcement.</p></div> <div class="numbered-paragraph"><p> I.</p></div> <div class="facAdFloatLeft"> <script type="text/javascript"><!-- google_ad_client = "ca-pub-1233285632737842"; /* FACContentLeftSkyscraperWide */ google_ad_slot = "1266897617"; google_ad_width = 160; google_ad_height = 600; //--> </script> <script type="text/javascript" src=""></script> </div class="facLeaderBoard"> <div class="numbered-paragraph"><p> Shepard is a Georgia corporation that installs, maintains and dismantles trade show and convention displays. On October 8, 1991 the Union, an AFL-CIO affiliate, filed with the Board's Region 10 office a petition seeking to represent a unit consisting of all of Shepard's "regular full-time and regular part-time" employees, who were then represented by the Brotherhood of Trade-Show and Display Workers Union, Local 349 (Local 349), another AFL-CIO affiliate, under a collective bargaining agreement set to expire on December 31, 1991. Local 349 intervened, alleging the petition violated the AFL-CIO's "anti-raiding" prohibitions. Accordingly, on December 11, 1991, the Regional Director "suspended for 30 days" "[f]urther action" on the Union's representation petition. Deferred Appendix (DA) 3. <a href="#D*fn1" name="S*fn1">*fn1</a></p></div> <div class="numbered-paragraph"><p> Shepard and Local 349 subsequently negotiated a new collective bargaining agreement on May 18, 1992. On January 8, 1993, the Union and Local 349's parent union entered into a "Memorandum of Understanding" under which they agreed that the Union would not seek to represent "regular" employees of any Atlanta exhibition employer with which the parent union had a collective bargaining agreement in effect but that the Union could seek to represent "non-regular" employees, that is those employed "from time to time on a call or job basis." DA 234.</p></div> <div class="numbered-paragraph"><p> By letter dated February 10, 1993, the Union requested the Regional Director to "resume processing of its petition," asserting that the "competing claims of interest" between it and Local 349 had "been resolved by agreement between the two unions." DA 8. On March 1, 1993, the Regional Director issued a "Notice of Representation Hearing." Local 349 again intervened and Shepard filed a "Motion to Cancel Hearing and Dismiss Petition" on the ground that the Union's representation petition had lapsed at the end of the thirty-day suspension. <a href="#D*fn2" name="S*fn2">*fn2</a> On April 22, 1993, the Regional Director ruled that the Union's petition, which was timely when first filed on October 8, 1991, remained valid after the thirty-day suspension and that its processing could be reactivated at any time thereafter, notwithstanding the new collective bargaining agreement negotiated in the interim. Accordingly, he directed that a union representation election be held.</p></div> <div class="numbered-paragraph"><p> By letter dated April 11, 1994 the Union asked the Regional Director to conduct the election by mail because of the "large number of eligible voters that will be on-call workers." DA 107. On April 13, 1994, the Regional Director rejected the Union's "suggestion." The Union then filed a "special request" for review by the Board, which both Shepard and Local 349 opposed. Meanwhile, in a letter dated April 19, 1994, Shepard requested the Regional Director to order a new "showing of interest" because of the length of time since the last showing and because of the increase in the unit's size since the petition was filed. <a href="#D*fn3" name="S*fn3">*fn3</a> The Regional Director denied the request on May 2, 1994. In a decision dated August 3, 1994 the Board summarily denied Shepard's request for a new showing of interest "as lacking in merit," Shepard Convention Servs., Inc., 314 N.L.R.B. 689, 690 n.3 (1994), and, by a 2-1 vote, "decided to grant the Petitioner's request for a mail ballot election for the "on-call' employees," finding that "[u]nder the facts ... the Regional Director abused his discretion by denying the Petitioner's request for a mail ballot for the "on-call' employees," id. at 689-90.</p></div> <div class="numbered-paragraph"><p> On September 12, 1994, the Regional Director ordered an election to be conducted with mail voting by all eligible employees. On September 16, 1994, Shepard requested review from the Board on the ground that the Board's August 3, 1994 decision had authorized mail voting only for on-call employees and that it therefore "must be read as denying [the Union's] request that other employees be permitted to vote by mail ballot." DA 175. The Board summarily denied the request on September 23, 1994.</p></div> <div class="numbered-paragraph"> <p> An election was conducted entirely by mail over a two-week period in late September and early October 1994. Of the 438 eligible employees, a maximum of 77, or roughly 17.5%, cast valid ballots, including nine that were challenged. <a href="#D*fn4" name="S*fn4">*fn4</a> Of the 68 unchallenged ballots ...</p> </div> </div> </div> <div id="caseToolTip" class="caseToolTip" style="display: none;"> <div class="toolTipHead"> </div> <div class="toolTipContent"> <p> Our website includes the first part of the main text of the court's opinion. To read the entire case, you must purchase the decision for download. With purchase, you also receive any available docket numbers, case citations or footnotes, dissents and concurrences that accompany the decision. Docket numbers and/or citations allow you to research a case further or to use a case in a legal proceeding. 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