H.P. Hood, Inc. v. National Labor Relations Board , 30 F. App'x 148 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
H. P. HOOD, INCORPORATED, 
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
and  No. 01-1653
UNITED FOOD & COMMERCIAL
WORKERS, AFL-CIO, LOCAL 371,
Intervenor.
STATE OF CONNECTICUT,
Amicus Curiae.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
and
UNITED FOOD & COMMERCIAL
WORKERS, AFL-CIO, LOCAL 371,
Intervenor,  No. 01-1835
v.
H. P. HOOD, INCORPORATED,
Respondent.
STATE OF CONNECTICUT,
Amicus Curiae.

On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(34-CA-9599)
2 H. P. HOOD, INC. v. NLRB
Argued: January 23, 2002
Decided: March 1, 2002
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
Petition for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
COUNSEL
ARGUED: Geoffrey Paul Wermuth, MURPHY, HESSE, TOOMEY
& LEHANE, Boston, Massachusetts, for Hood. James Matthew
Oleske, Jr., NATIONAL LABOR RELATIONS BOARD, Washing-
ton, D.C., for Board. Warren Hugh Pyle, PYLE, ROME, LICHTEN
& EHRENBERG, P.C., Boston, Massachusetts, for Union. ON
BRIEF: Arthur P. Murphy, MURPHY, HESSE, TOOMEY &
LEHANE, Boston, Massachusetts, for Hood. Arthur F. Rosenfeld,
General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Dep-
uty Associate General Counsel, Robert J. Englehart, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board. Richard Blumenthal, Attorney General of Connecti-
cut, Richard T. Sponzo, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Hartford, Connecticut, for Amicus
Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
H. P. HOOD, INC. v. NLRB 3
OPINION
PER CURIAM:
H.P. Hood, Inc. petitions for our review, pursuant to 29 U.S.C.
§ 160(f), of the Decision and Order of the National Labor Relations
Board, filed May 3, 2001 (the "Order"), requiring Hood to bargain
with Local 371 of the United Food and Commercial Workers Union,
AFL-CIO (the "Union"). The Board has filed a cross-application
seeking enforcement of the Order.
In a razor-thin election conducted in August 2000, the production
and maintenance employees of Hood’s Suffield, Connecticut, dairy
processing facility selected the Union as their collective bargaining
representative. The Union prevailed by the margin of a single vote,
seventy-one to seventy, with one contested ballot. Thereafter, the
Board rejected Hood’s objections to the election and certified the
Union. Hood refused to bargain, however, claiming that the Union’s
certification was invalid. Following a complaint from the Union, the
Board concluded that Hood’s refusal to bargain constituted an unfair
labor practice, in violation of §§ 8(a)(1) and (5) of the National Labor
Relations Act (the "Act"), and it entered its Order of May 3, 2001,
requiring Hood to bargain. As explained below, the Board did not
abuse its discretion in certifying the Union, and we grant enforcement
of its Order.
I.
On June 19, 2000, the Union petitioned the Board for a representa-
tion election among a unit of production and maintenance employees
at Hood’s Suffield, Connecticut, facility. Ten days later, Hood and the
Union, with the approval of the Board’s Regional Director, entered
into a Stipulated Election Agreement (the "Stipulation"). The Stipula-
tion provided, inter alia, that a representation election would be held
on August 3, 2000, and that the appropriate collective-bargaining unit
would include "[a]ll full-time and regular part-time production and
maintenance employees." The Stipulation also provided that "seasonal
employees" would be excluded from the collective bargaining unit
and hence would be ineligible to vote. The Stipulation required Hood
to provide the Regional Director with an election eligibility list con-
4 H. P. HOOD, INC. v. NLRB
taining the full names and addresses of all eligible voters, and Hood
complied with this requirement.
The election was conducted pursuant to the Stipulation, and a tally
conducted on August 3, 2000, revealed that seventy-one votes were
cast in favor of the Union and seventy votes were cast against it. One
additional ballot was challenged by the Board agent supervising the
election. The challenged ballot was not counted because the voter —
Danielle Bourdeau — was not on the eligibility list provided by Hood
to the Regional Director. As the Board and the parties recognized, if
Bourdeau’s ballot were counted, and if she voted against the Union,
the election would be tied. The result would then be a victory for
Hood, rather than a one-vote Union victory.1
Because of the significance of Bourdeau’s ballot, the Regional
Director requested that Hood and the Union advise him of their posi-
tions on Bourdeau’s eligibility to vote. By letter dated August 10,
2000, the Union took the position that Bourdeau was a seasonal tem-
porary employee and that, pursuant to the Stipulation, she was ineligi-
ble to vote. Five days later, Hood concurred with the Union’s position
that Bourdeau was ineligible to vote, also maintaining that she was a
seasonal employee. In support of its position that Bourdeau was ineli-
gible, Hood provided the Regional Director with a payroll record that
listed Bourdeau’s Work Status as "Seasonal Full Time." Three days
later, however, by letter of August 18, 2000, Hood "reserve[d] the
right to take an alternative position regarding the eligibility of Dan-
ielle Bourdeau."
Independent of the issue of Bourdeau’s eligibility, Hood timely
filed three separate objections to the election. By facsimile and letter
dated August 10, 2000, Hood maintained as follows: (1) the Union
had impermissibly offered to waive its initiation fee for certain
employees if they signed union authorization cards prior to the elec-
tion; (2) the Union had distributed and approved the use of tape
1
As the Seventh Circuit recently observed, "like a base runner who
reaches the bag at the same time as the ball, a[n electoral] tie goes to the
company." NLRB v. Americold Logistics, Inc., 214 F.3d 935, 937 (7th
Cir. 2000). See also NLRB v. A.G. Parrott Co., 630 F.2d 212, 213 (4th
Cir. 1980).
H. P. HOOD, INC. v. NLRB 5
recorders to coerce employees; and (3) two of the eligible Hood
employees, a married couple, were unable to vote due to the death of
a relative. On August 11, 2000, the Regional Director acknowledged
receipt of Hood’s objections, and it specifically advised Hood to fur-
nish any evidence in support of its objections no later than seven days
after the August 10, 2000, filing thereof, i.e., by August 17, 2000.
By facsimile dated August 18, 2000, Hood submitted its evidence
to the Regional Director in support of its objections to the election.
Specifically, Hood produced affidavits from five of its employees,
each of whom averred that a Union representative had said "[i]f you
sign a union authorization card before the election you won’t have to
pay an initiation fee."2 In submitting its evidence, counsel for Hood
stated in its facsimile letter that "[d]ue to a miscommunication
between counsel for the employer, the Employer’s evidence is being
submitted hours late." Hood explained that "[c]ounsel for the
employer had been on vacation this week," and it requested that the
Board extend the time for submission of the evidence.3
On the following Monday, August 21, 2000, the Regional Director
denied Hood’s "belated request to extend the time for receipt of its
evidence," concluding that Hood had not offered a sufficient explana-
2
Hood did not submit any affidavits to the Regional Director in support
of its allegation that the Union had distributed and approved the use of
tape recorders to coerce employees; it simply maintained that an
employee would be willing to so testify. Finally, Hood withdrew its third
objection, i.e., that two employees were unable to vote because of the
death of a relative.
3
At no time, either before the Board or this Court, has counsel for
Hood maintained that its submission of evidence on August 18, 2000,
was timely. The Board’s regulations require that objections to an election
be filed within seven days after the tally of ballots has been prepared. 29
C.F.R. § 102.69(a). The tally was completed on August 3, 2000, and
Hood timely filed its objections on the seventh day thereafter, August 10,
2000. The regulations further require that evidence in support of such
objections be filed within seven days of the filing of objections, and that
Saturdays and Sundays are to be included in computing the time. Id. As
such, given that Hood’s objections were filed on August 10, 2000, its
supporting evidence was due on August 17, 2000, and its August 18,
2000, submission was untimely.
6 H. P. HOOD, INC. v. NLRB
tion for its untimeliness. Following denial of its request for an exten-
sion of time, Hood faxed a request to the Board’s Executive Secretary
for special permission to appeal the Regional Director’s decision
refusing to consider its evidence. On August 30, 2000, the Board
granted Hood’s request for permission to appeal, and it also simulta-
neously denied the appeal on its merits.
Later that same day, August 30, 2000, the Regional Director issued
his Report on Challenged Ballot and Objections (the "Regional Direc-
tor’s Report"), in which he assessed Ms. Bourdeau’s eligibility to vote
as well as Hood’s objections to the election. Based on his independent
investigation, as well as on the positions of both the Union and Hood
that Bourdeau was a seasonal employee, the Regional Director con-
cluded that Bourdeau was ineligible to vote and that her ballot had
been properly excluded. The Regional Director also rejected Hood’s
other objections to the validity of the election, i.e., that the Union had
offered to waive its initiation fee for certain employees, and that it
had used tape recorders to coerce employees. Both of these objections
were rejected because Hood’s evidence was not timely filed. Finding
no meritorious objection to the election, the Regional Director recom-
mended that the Board issue a Certificate of Representation on behalf
of the Union.
The morning after the Regional Director recommended certifica-
tion of the Union, Hood made a 180-degree change in its position on
Bourdeau’s eligibility to vote. In a letter to the Regional Director
dated August 31, 2000, Hood maintained that Bourdeau was "a regu-
lar part-time production and maintenance employee." In support of its
new position, Hood submitted affidavits from two of its production
supervisors, claiming that Bourdeau had been hired to work full-time
through the Summer and regularly on a part-time basis thereafter.4 On
4
Hood maintains that its evidence of Bourdeau’s part-time employ-
ment status was submitted after issuance of the Regional Director’s
Report because Hood’s counsel was misled by an assistant to the
Regional Director. Specifically, Hood contends that, in a phone conver-
sation on August 30, 2000, an assistant to the Regional Director incor-
rectly stated that the Regional Director’s Report would not issue that day.
Hood contends that its reliance on the misstatement of the Regional
Director’s assistant explains why its evidence was not submitted until
August 31, 2000, as opposed to on August 30, 2000. Hood, however,
offers no reason why it did not submit evidence of Bourdeau’s employ-
ment status prior to August 30, 2000.
H. P. HOOD, INC. v. NLRB 7
September 1, 2000, Hood procured a hand-written affidavit from
Bourdeau herself, stating that after she returned to school full-time in
the Fall she "would be working several Saturdays every 3 months, but
the schedule was not set."
On October 11, 2000, the Regional Director dealt with Hood’s new
position and issued a Supplemental Report on Challenged Ballot and
Objections. Despite the tardy submission of affidavits with regard to
Bourdeau’s eligibility to vote, the Regional Director "considered all
of the Employer’s additional evidence." However, because the affida-
vits were not sufficiently specific and Bourdeau’s work schedule had
not yet been determined, the Regional Director decided that Bourdeau
was not a regular part-time employee and hence sustained the Union’s
challenge to her ballot. The Regional Director consequently reiterated
his earlier recommendation to the Board that Hood’s objections to the
election should be overruled. On November 21, 2000, the Board
adopted the findings and recommendations of the Regional Director
and certified the Union as the "exclusive collective-bargaining repre-
sentative" of the production and maintenance employees at Hood’s
Suffield, Connecticut, dairy processing facility. H.P. Hood, Inc.,
Decision and Certification of Representative, 34-RC-1829 (Nov. 21,
2000).
Following the Board’s November 2000 certification, the Union
unsuccessfully requested that Hood engage in collective bargaining.
Hood, however, refused to bargain and, on March 1, 2001, the Union
filed an unfair labor practice charge with the Board, alleging that
Hood’s refusal to bargain violated §§ 8(a)(1) and (5) of the Act.5
5
Section 8 of the Act sets forth the definitions of the unfair labor prac-
tices at issue in this case, providing in pertinent part as follows:
It shall be an unfair labor practice for an employer —
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights [to engage in union activities] . . .;
...
(5) to refuse to bargain collectively with the representatives
of his employees . . . .
29 U.S.C. § 158.
8 H. P. HOOD, INC. v. NLRB
Hood then admitted its refusal to bargain with the Union, but con-
tended that it was not obligated to do so because the Union’s certifica-
tion was invalid. On May 3, 2001, the Board issued the Order giving
rise to this proceeding, concluding that all representation issues raised
by Hood could have been or were litigated in the prior representation
proceeding, and deciding that Hood had not adduced any newly dis-
covered evidence or special circumstances that necessitated reexami-
nation of the representation proceeding. H.P. Hood, Inc., 333
N.L.R.B. No. 158 (May 3, 2001). As such, the Board ruled that
Hood’s refusal to bargain with the Union constituted a violation of
§§ 8(a)(1) and (5) of the Act, and it ordered Hood to bargain with the
Union on request.
On May 14, 2001, Hood filed its Petition for Review with this
Court, requesting that the Order be set aside or that the case be
remanded to the Board for an evidentiary hearing on the contested
issues. Shortly thereafter, the Union moved to intervene in this pro-
ceeding in order to oppose Hood’s effort to vacate the Board’s certifi-
cation, and the Board filed its cross-application for enforcement of the
Order. We possess jurisdiction pursuant to the provisions of 29 U.S.C.
§ 160(f),6 and we grant enforcement of the Order.
II.
As we have repeatedly observed, "[t]he results of a Board-
supervised representation election are presumptively valid." NLRB v.
Flambeau Airmold Corp., 178 F.3d 705, 707 (4th Cir. 1999). We
review a determination by the Board on the eligibility of a voter in
6
Section 160(f) of Title 29 provides in pertinent part as follows:
Any person aggrieved by a final order of the Board granting or
denying in whole or in part the relief sought may obtain a review
of such order in any court of appeals of the United States in the
circuit wherein the unfair labor practice in question was alleged
to have been engaged in or wherein such person resides or trans-
acts business . . . .
All relevant events underlying this proceeding occurred outside of our
bailiwick, in the State of Connecticut. We nevertheless possess jurisdic-
tion because Hood maintains a production and distribution facility in
Winchester, Virginia.
H. P. HOOD, INC. v. NLRB 9
a representation election for abuse of discretion. Airport Shuttle-
Cincinnati, Inc. v. NLRB, 703 F.2d 220, 223 (6th Cir. 1983). In other
words, "we may overturn the NLRB’s finding only if the NLRB has
abused its discretion in certifying the election." Elizabethtown Gas
Co. v. NLRB, 212 F.3d 257, 262 (4th Cir. 2000) (internal quotations
and citations omitted). In a similar vein, the Board’s decision to deny
an evidentiary hearing on election objections is also reviewed for
abuse of discretion. NLRB v. VSA, Inc., 24 F.3d 588, 596-98 (4th Cir.
1994). Finally, and in consideration of the deference which we accord
the Board, its construction of its own regulations should be set aside
only if it acted in a fashion "so arbitrary as to defeat justice." KBI Sec.
Serv., Inc. v. NLRB, 91 F.3d 291, 295 (2d. Cir. 1996). Because Hood
admits that it refused to bargain with the Union, the sole issue before
us is whether the Board abused its discretion in certifying the Union.
III.
Hood makes four contentions of error with regard to the Board’s
decision to certify the Union as the collective bargaining representa-
tive of the production and maintenance employees at its Suffield,
Connecticut, plant. Specifically, Hood maintains that the Board
abused its discretion in: (1) determining that Bourdeau was not eligi-
ble to vote in the election; (2) failing to conduct a hearing to investi-
gate Bourdeau’s eligibility to vote; (3) declining to consider Hood’s
late-filed evidence; and (4) refusing to remand the case in light of the
Regional Director’s alleged bias against Hood. We address each of
these contentions in turn.
A.
Hood maintains that the Board abused its discretion in concluding
that Bourdeau was not a regular part-time employee eligible to vote
in the election. Pursuant to the Stipulation, Hood provided the
Regional Director with the election eligibility list containing the
names of all eligible voters: Bourdeau’s name was not on the list. Fol-
lowing the election, the Regional Director afforded both parties an
opportunity to state their positions on Bourdeau’s eligibility to vote,
and both the Union and Hood promptly maintained that Bourdeau was
ineligible. Indeed, Hood provided the Regional Director with a pay-
roll record indicating that Bourdeau was a seasonal employee and
10 H. P. HOOD, INC. v. NLRB
thus ineligible to vote. Hood did not alter its position that Bourdeau
was ineligible until four weeks after the election.
Hood’s only evidence that Bourdeau was a regular part-time
employee eligible to vote — submitted the day after issuance of the
Regional Director’s Report — consisted of three conclusory affida-
vits. The first two affidavits were made by Hood production supervi-
sors and, as the Regional Director observed, both contained "the
identical general statement that in the summer of 2000 she was told
that she would work ‘on a part time basis regularly after the sum-
mer.’" Moreover, as the Regional Director also explained, "neither
[affidavit] provided any specific evidence as to the terms and condi-
tions of her employment, the anticipated duration of her employment,
or the days or number of hours she would be working during any pay-
roll period." Hood’s third affidavit was from Bourdeau herself and it
was equally vague, asserting that after Bourdeau returned to school
in the Fall she would be "working several Saturdays every 3 months
but the schedule was not set." Simply put, these three affidavits did
not compel the Board to conclude that Bourdeau would be working
as a regular part-time employee at Hood’s Suffield plant.
Indeed, giving Hood the benefit of any doubt on Bourdeau’s state-
ment that she would work "several Saturdays every 3 months," the
Board’s decision would not constitute an abuse of its discretion.
Although "the Board generally excludes summer employees from the
appropriate unit, such employees will be deemed eligible if, upon
returning to school, their employment evidences regular part-time sta-
tus." Crest Wine & Spirits, Ltd., 168 N.L.R.B. 754, 754 (1967). To
be included in a bargaining unit, however, such students must share
a "sufficient community of interest" with the unit’s other employees.
Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531, 535 (4th Cir. 1999).
An employee, such as Bourdeau, who merely works "several Satur-
days every three months," plainly would not share such a community
of interest.
As the First Circuit has recognized, "[w]hile consistent employ-
ment but one day a week may be enough to satisfy the Board’s ‘com-
munity of interest’ standard . . . less than consistent Saturday
employment . . . cannot sustain a finding of regular part-time employ-
ment without other evidence." NLRB v. Sandy’s Stores, Inc., 398 F.2d
H. P. HOOD, INC. v. NLRB 11
268, 273 (1st Cir. 1968); see also Wehrenberg Theatres, Inc., 260
N.L.R.B. 18, 22 (1982), enforced 690 F.2d 159 (8th Cir. 1982) (find-
ing student who worked only "several" times during fall and Christ-
mas vacation after summer employment to be ineligible to vote in
representation election); Century Moving & Storage, Inc., 251
N.L.R.B. 671, 681 (1980) ("The determinative criteria as to whether
students are to be included in a unit appears to be the regularity of
their part-time employment [which may be as little as one day a
week.]"). The First Circuit’s decision in Sandy’s Stores, as well as the
Board’s own decisions, indicate that an employee should generally
work at least a day each week to be a regular part-time employee.7
Bourdeau’s averment that she will work "several Saturdays every 3
months," by contrast, indicates that she will likely work, at most, only
one or two Saturdays per month, i.e., far less than one day per week.
Because Bourdeau would be working sporadically, and signifi-
cantly less than one day per week, the Board did not err in concluding
that she did not share a sufficient community of interest with the pro-
duction and maintenance unit’s employees. Given that Bourdeau was
not on the election eligibility list furnished by Hood, and that Hood’s
own payroll records listed her as a seasonal employee, it is clear that
the Board did not abuse its discretion in concluding that she was not
a regular part-time employee, and hence that she was not eligible to
vote.
B.
Hood next contends that the Board erred in failing to conduct a
hearing to investigate Bourdeau’s eligibility to vote. The Board, how-
7
Hood maintains that the dispute over Bourdeau’s employment status
is controlled by the Board’s 1978 decision in Dick Kelchner Excavating
Co., 236 N.L.R.B. 1414 (1978). There the Board determined that a stu-
dent who worked full-time during the summer, holidays, and occasional
Saturdays was a regular part-time employee who should be included in
the bargaining unit. The Board’s decision in Dick Kelchner is easily dis-
tinguishable, however, because in that case the employer’s business was
seasonal in nature, with its peak time being from May to November.
Thus, the student, like other employees, worked full-time during the peak
season and less regularly during the off season.
12 H. P. HOOD, INC. v. NLRB
ever, was under no obligation to conduct such a hearing, and it did
not, in these circumstances, abuse its broad discretion in declining to
do so.
As we have recognized, "[a] hearing is necessary if it is shown that
there are substantial and material issues of disputed fact relating to the
validity of the election." NLRB v. Hydrotherm, Inc., 824 F.2d 332,
335 (4th Cir. 1987). An evidentiary hearing is not required when, "if
all the facts supporting the position of the objecting party were cred-
ited, no ground is shown for setting aside the election." NLRB v. Mfr’s
Packaging Co., 645 F.2d 223, 226 n.1 (4th Cir. 1981). Moreover, in
seeking an evidentiary hearing, "it is not sufficient for an employer
merely to question the interpretation of or legal conclusions drawn
from the facts by the Regional Director." National Posters, Inc. v.
NLRB, 720 F.2d 1358, 1362 (4th Cir. 1983). Rather, "[t]o be entitled
to a hearing, the objecting party must make a proffer of evidence
which prima facie would warrant setting aside the election." Hydro-
therm, 824 F.2d at 335 (internal quotations and citations omitted).
Hood has failed to point to any substantial and material issues of
disputed fact regarding Bourdeau’s eligibility to vote. Indeed, in its
brief, Hood asserts that "the evidence [of Bourdeau’s employment
status] was uncontested." Appellant’s Br. at 27. If the evidence is
uncontested, there can be no substantial and material issue of disputed
fact. See Hydrotherm, 824 F.2d 335-36 ("In fact, the company has
acknowledged that ‘[i]n this case, the evidence is uncontroverted, so
there is no unresolved issue of fact.’ Thus, the Board did not abuse
its discretion in refusing to grant the company a hearing.").
Rather than point to a substantial and material issue of disputed
fact, Hood contends that "[t]he Board and Regional Director failed to
draw the only reasonable conclusion, namely that Ms. Bourdeau had
a legitimate expectation of continued employment." Appellant’s Br.
at 27-28. In essence, Hood maintains that the Board reached the
wrong conclusion in its interpretation of the evidence. As this Court
recognized in National Posters, however, an employer is not entitled
to a hearing merely because it questions the Board’s interpretation of
the facts. 720 F.2d at 1362.
In seeking a hearing on the issue of Bourdeau’s eligibility to vote,
the burden was on Hood to point to substantial and material issues of
H. P. HOOD, INC. v. NLRB 13
disputed fact and to make a "proffer of evidence which prima facie
would warrant setting aside the election." Hydrotherm, 824 F.2d at
335 (internal quotations and citations omitted). Because no such prof-
fer was made, the Board did not abuse its discretion in declining to
conduct a hearing on Bourdeau’s eligibility to vote.
C.
Hood also maintains that the Board erred in refusing to consider its
late-filed evidence, i.e., the five affidavits of its employees averring
that union officials told them "[i]f you sign a union authorization card
before the election you won’t have to pay an initiation fee."8 Pursuant
to Rule 102.69(a) of the Board’s Rules and Regulations, a party filing
objections to a representation election must furnish its evidence to the
Regional Director within seven days "after the filing of objections."9
As we have noted, Hood filed its objections on August 10, 2000, and,
as such, it was required to furnish its evidence to the Regional Direc-
tor no later than August 17, 2000. Hood readily acknowledges that its
evidence was submitted "hours late," on the morning of August 18,
2000.
The Board has explained that Rule 102.69(a) will be "strictly
applied," Star Video Entm’t, 290 N.L.R.B. 1010, 1010 (1988), and it
has frequently rejected late-filed evidence submitted by both employ-
ers and unions. For example, in TA Inv. Co., Inc., 300 N.L.R.B. 473(1990), the Board refused to consider a union’s late-filed evidence in
8
The Supreme Court has made clear that a union may not offer to
waive its initiation fee in exchange for an employee signing a union
authorization card prior to the election. NLRB v. Savair Mfg. Co., 414
U.S. 270 (1973). Indeed, as this Court observed in Hydrotherm, "[a]
waiver of initiation fees conditioned upon the signing of a union authori-
zation card prior to an election is improper and must result in the setting
aside of a union victory." 824 F.2d at 336. Thus, if credited, Hood’s evi-
dence would be grounds for setting aside the election.
9
Rule 102.69(a) provides, in relevant part, as follows: "Within 7 days
after the filing of objections, or such additional time as the Regional
Director may allow, the party filing objections shall furnish to the
Regional Director the evidence available to it to support the objections."
29 C.F.R. § 102.69(a).
14 H. P. HOOD, INC. v. NLRB
support of objections, in spite of the fact that the union’s attorney was
hindered by a family emergency. Just like Hood, the union in TA
Investment did not request an extension to file its evidence until the
day after the evidence was due. In rejecting the union’s belated
request for an extension, the Board explained that Rule 102.69(a)
"does not require consideration of a request for an extension of time
when the request itself is untimely." Id. at 473 n.1. The Board also
strictly applied the provisions of Rule 102.69(a) in its decision in
Public Storage, 295 N.L.R.B. 1034 (1989), where it reversed the
Regional Director’s consideration of a union’s late-filed evidence.
The Board determined that the union’s failure to receive the Regional
Director’s courtesy letter reminding it of the submission deadline did
not excuse non-compliance with Rule 102.69(a). More recently, in
Goody’s Family Clothing, Inc., 308 N.L.R.B. 181 (1992), the Board
refused to consider an employer’s evidence in support of its objec-
tions to a representation election because the evidence was filed a day
late. Cf. Drum Lithographers, 287 N.L.R.B. 22 (1987) (refusing to
consider union’s late-filed objections to representation election).
As we have observed, the Board’s construction of its own regula-
tions may only be set aside by us if it acted in a fashion "so arbitrary
as to defeat justice." KBI Sec. Serv., Inc. v. NLRB, 91 F.3d 291, 295
(2d. Cir. 1996). Because the Board has consistently followed its
admonition in Star Video that the provisions of Rule 102.69(a) will
be strictly applied, we are unable to conclude that it acted arbitrarily
in refusing to consider Hood’s late-filed evidence. In this situation,
the Regional Director sent Hood a certified letter, on August 11,
2000, reminding it that evidence was due no later than seven days
after the August 10, 2000, filing of its objections. Hood nevertheless
submitted its evidence a day late, on August 18, 2000, offering the
explanation that there had been "a miscommunication between coun-
sel for the employer" and that "[c]ounsel for the employer has been
on vacation this week and through inadvertence did not request the
extension until today." Given the Board’s decision in TA Investment
that an attorney’s family emergency does not excuse failure to comply
with Rule 102.69(a), we see no reason why an attorney being on vaca-
tion should constitute an exception to the Board’s uniform application
of its Rule.
H. P. HOOD, INC. v. NLRB 15
D.
Finally, Hood has maintained that a hearing was warranted on its
objections to the election because the record revealed that both the
Board and the Regional Director were biased against it. In support of
its bias allegation, Hood pointed to certain "harshly critical" state-
ments of the Regional Director. For example, according to Hood’s
brief, the Regional Director stated that Hood’s counsel "‘erroneously
and disingenuously’ made misrepresentations to the Region, [and]
‘once again’ failed to ‘provide a valid basis for excusing its neglect.’"
Appellant’s Br. at 41. We see Hood’s contention of bias as meritless.
While the terminology utilized by the Regional Director may be con-
sidered as strong, it is premised on Hood’s conduct during the pro-
ceedings before the Regional Director and the Board. The Regional
Director’s language is not dissimilar to that frequently found in judi-
cial and administrative opinions, and its statements fail to support the
assertion that the Board and the Regional Director were somehow
biased against Hood. See Liteky v. United States, 510 U.S. 540, 555
(1994) (recognizing in recusal context that "judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion,"
and that remarks that are "critical or disapproving of, or even hostile
to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge.").
IV.
For the foregoing reasons, we conclude that the Board did not
abuse its discretion in certifying the election. We accordingly deny
Hood’s petition for review, and we grant the Board’s cross-
application for enforcement of its Order.
PETITION FOR REVIEW DENIED AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED