Millard Processing Services, Inc. v. N.L.R.B.
| Decision Date | 30 July 1993 |
| Docket Number | AFL-CI,Nos. 92-3474,92-3631,I,s. 92-3474 |
| Citation | 2 F.3d 258 |
| Parties | 143 L.R.R.M. (BNA) 3025, 62 USLW 2132, 125 Lab.Cas. P 10,797 MILLARD PROCESSING SERVICES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Food and Commercial Workers, International Union, Intervenor. MILLARD PROCESSING SERVICES, INC., Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner, United Food and Commercial Workers, Union Local 271ntervenor. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Patrick J. Barrett, Omaha, NE (Roger J. Miller, on the brief), for appellant.
Jill A. Griffin, NLRB, Washington, DC (Howard E. Perlstein, NLRB, on the brief), for appellee.
Before WOLLMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
Millard Processing Services ("Millard") petitions for review of a decision and order of the National Labor Relations Board; the Board cross-applies for enforcement of its order. We affirm the Board's decision and enforce its order.
Millard operates a bacon-processing facility in Omaha, Nebraska. Millard employs approximately 275 people, who are divided evenly between two shifts. The first shift ends at 4:30 p.m. and the second shift begins at 5:00 p.m.
Local 271 of the United Food and Commercial Workers Union (the "union") filed a petition to represent Millard's production and maintenance employees. In an attempt to obtain media coverage of the representation election, Patrick O'Neil, the head union coordinator, contacted four Omaha television stations, leaving messages concerning the union campaign and the election. Additionally, O'Neil told Felipe Morales, a union representative, to inform Fernando Castillo about the campaign and election. Castillo, the assistant director of the Information and Service Network ("ISN"), a local production company that produces programming for a cable television station, had previously asked Morales to keep him apprised of any campaign events. Morales telephoned Castillo and informed him that the union was planning to hold a rally outside Millard's plant on June 28, 1990, the day before the election. Castillo told Morales that he would like to visit the Millard plant and interview employees about the election. Morales advised Castillo that the best time to contact employees would be during the shift change.
On June 28, Castillo went to the Millard facility with Morales, arriving at about 3:30 p.m. Castillo set his video camera on a tripod some twenty feet from where O'Neil and other union representatives were distributing leaflets in front of a union banner. Castillo's camera did not bear any identifying insignia, and he was not wearing anything that associated him with ISN. When Millard employees asked O'Neil about Castillo's identity, O'Neil explained that Castillo worked for a cable television station.
Castillo stayed at the Millard facility for about one and one-half hours. As background footage for his anticipated employee interviews, Castillo filmed the plant, employees entering and exiting the plant, and vehicles entering and exiting the plant parking lot. He also filmed employees as they accepted or declined the material being distributed by the union representatives. Castillo approached two or three employees, identified himself as being from ISN, and asked them what they thought about the union election. All employees that he approached declined to comment, however. Castillo also identified himself to those employees who asked why he was filming. Castillo did not distribute any union material or otherwise campaign for the union while he was at the Millard facility. He did, however, don one of the "Union, Yes" hats that union representatives were distributing.
The election was held the following day, June 29. Of the approximately 240 employees eligible to vote, 114 voted for union representation, and eighty-four voted against it, with ten challenged ballots.
Millard filed objections to the election, alleging, inter alia, that the union, through its representatives and agents, had created the impression of intimidating surveillance by using a video camera in front of employees. It contended that by videotaping employees and their automobiles as they declined union pamphlets, the union had intimidated employees, interfered with their free choice, and made a free and fair election impossible.
A Board hearing officer conducted a hearing to consider Millard's objections. Applying the doctrine of apparent authority, the hearing officer found that Castillo had acted as an agent of the union at the time that he videotaped employees. The hearing officer further found that videotaping employees was intimidating and coercive and would reasonably tend to interfere with employee free choice in an election. Accordingly, the hearing officer recommended that Millard's objections concerning Castillo's videotaping be sustained and that the election be set aside.
The Board rejected the hearing officer's findings and recommendations, finding that Castillo's videotaping of employees did not warrant setting aside the election. Millard Processing Services, Inc., 304 N.L.R.B. No. 99, 1991 WL 187498 (August 27, 1991). The Board found that Castillo had not acted as an agent of the union while videotaping employees. The Board also found that Castillo's videotaping was not objectionable conduct under the Board's standard for assessing third-party conduct during election campaigns. Accordingly, the Board certified the union as the exclusive collective bargaining representative of Millard's employees.
In order to challenge the Board's certification of the union, Millard refused to recognize and bargain with the union and to provide the union with information that it had requested. The Board found that by engaging in such conduct Millard had committed unfair labor practices in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the "Act"). Millard Processing Services, Inc., 308 N.L.R.B. No. 138, 1992 WL 246282 (September 22, 1992). The Board issued an order requiring Millard to bargain with the union, to furnish the union with the requested information, and to post an appropriate notice to employees.
Millard petitions for review of the Board's order; the Board cross-applies for enforcement of its order. Additionally, the union intervenes in support of the Board's order.
Representation elections are not to be set aside lightly. Beaird-Poulan Div. v. NLRB, 649 F.2d 589, 592 (8th Cir.1981). The party challenging an election carries a heavy burden: the objecting party must "show by specific evidence not only that improprieties occurred, but also that they interfered with employees' exercise of free choice to such an extent that they materially affected the election results." Id. In reviewing the Board's decision concerning whether to set aside an election, the standard is whether "the Board acted within the 'wide degree of discretion' vested in it by Congress regarding representation matters." Id. (quoting NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946)).
In some circumstances, the Board has set aside elections in which employees were videotaped or photographed during the election campaign; in other circumstances, however, the Board has refused to do so. For example, in Pepsi-Cola Bottling Co., 289 N.L.R.B. 736, 1988 WL 213816 (1988), the Board overturned an election where, on the day before the election, a union representative videotaped employees as they exited the employer's premises and were offered union leaflets. In Mike Yurosek & Son, Inc., 292 N.L.R.B. 1074, 1989 WL 223861 (1989), the Board set aside an election where, on virtually every day of the campaign, a union agent had photographed prounion and antiunion employees engaging in campaign activity at the employer's entrance gate. On the other hand, in Nu Skin Int'l, Inc., 307 N.L.R.B. No. 46, 1992 WL 87489 (April 22, 1992), the Board refused to overturn an election where a union representative had photographed employees at a union-sponsored picnic on the day before the election.
In both Pepsi-Cola and Mike Yurosek, the individual who engaged in the misconduct was a union representative or agent. When misconduct is directly attributable to the union, the Board will overturn the election when the "conduct reasonably tend[ed] to interfere with the employees' free and uncoerced choice in the election." Pepsi-Cola, 289 N.L.R.B. at 736. Less weight is accorded to third-party misconduct, however, than to union (or management) misconduct. Monark Boat Co., 713 F.2d 355, 360 (8th Cir.1983); Beaird-Poulan, 649 F.2d at 594 (citing NLRB v. Griffith Oldsmobile, Inc., 455 F.2d 867, 870 (8th Cir.1972)). When misconduct is attributable to a third party, the election will be overturned only if the conduct created " 'an atmosphere of fear and reprisal such as to render a free expression of choice impossible.' " Monark Boat, 713 F.2d at 360 (quoting Griffith Oldsmobile, 455 F.2d at 870). Accordingly, the first inquiry in this case is whether Castillo was acting as an agent of the union when he videotaped Millard employees.
In rejecting the hearing officer's findings, the Board found that the absence of any identification connecting Castillo to ISN, his wearing a hat promoting unions, and his relatively close proximity to the union organizers and the union banner were insufficient to establish that Castillo had apparent authority to act on behalf of the union. The Board concluded that Millard had failed to show that the union had acted in a manner to cause reasonable employees to believe that Castillo was its agent.
"We will enforce an order of the Board if the Board has correctly applied the law and its factual findings are supported by substantial evidence on the record considered as a whole, even though we might have reached a different...
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