Before: Wald, Ginsburg and Henderson, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Opinion for the court filed by Circuit Judge Henderson.
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.
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. *fn1
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.
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. *fn2 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.
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. *fn3 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.
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.
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. *fn4 Of the 68 unchallenged ballots ...