N.L.R.B. v. McCarty Farms, Inc.

• Citation: 24 F.3d 725
• Decision Date: 20 June 1994
• Docket Number: No. 93-4949,93-4949
• Parties: 146 L.R.R.M. (BNA) 2778, 128 Lab.Cas. P 11,148 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. McCARTY FARMS, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 725

24 F.3d 725

146 L.R.R.M. (BNA) 2778, 128 Lab.Cas. P 11,148

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. McCARTY FARMS, INC., Respondent.

No. 93-4949.

United States Court of Appeals,

Fifth Circuit.

June 20, 1994.

Paul J. Spielberg, Aileen Armstrong, Deputy Associate Gen. Counsel, Robert N. Herman, NLRB, Washington, DC, for petitioner.

Andrew Partee, Jr., Kenneth J. Servay, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for respondent.

H. Frank Malone, Regional Dir., Region 15, NLRB, New Orleans, LA, for other interested party.

Application for Enforcement of an Order of the National Labor Relations Board.

Before REAVLEY and JOLLY, Circuit Judges, and PARKER, ^* District Judge.

E. GRADY JOLLY, Circuit Judge:

The National Labor Relations Board (the "Board") petitions for enforcement of its order directing McCarty Farms, Inc. (the "Company") to bargain with United Food and Commercial Workers International Union, Local 1529 (the "Union"). The Company refused to bargain after the Union won the election because it asserted that the election was tainted by pro-union misconduct. The Board, without a hearing, found that the Company violated Sec. 8(a)(1) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(a)(1), (5), by refusing to recognize and bargain with the Union. Because we hold that the Company made a prima facie case that the pro-union misconduct impermissibly tainted the election, we deny the Board's petition and remand for a hearing.

I

On June 18, 1992, the Board held a certification election among certain employees at the Company's Canton, Mississippi plant to determine whether the employees desired the Union to be their collective bargaining representative. Of the votes cast, 83 were for the Union, 77 were against the Union, 5 resulted in challenged ballots, and 1 resulted in a void ballot. Thus, the Union's victory hinged on but 3 votes. ¹

II

The Company filed objections alleging Union misconduct had tainted the election. The Board's Regional Director conducted an administrative investigation into the Company's objections. After the investigation, and without a hearing, the Regional Director issued a report on July 30, 1992. The report recommended that the Board overrule the Company's objections in their entirety and that the Board certify the Union as the employees' bargaining representative. The Company filed exceptions to the Regional Director's report and supported the objections with affidavits. On December 15, the Board adopted the Regional Director's recommendations, overruled the Company's objections, and certified the Union as the employees' exclusive bargaining agent.

The Company, alleging that the Union had been improperly certified because the election was tainted, refused to bargain with the Union. Consequently, the Regional Director issued a complaint alleging an unfair labor practice under NLRA Sec. 8(a)(5) and (1), 29 U.S.C. Sec. 158(a)(5) and (1). On March 15, 1993, the Board denied the Company's request for a hearing, found that the Company had committed an unfair labor practice by refusing to bargain with the Union, and ordered the Company to cease and desist from such activity. Seeking judicial review, the Company refused to comply with the Board's order. Pursuant to NLRA Sec. 10(e), 29 U.S.C. Sec. 160(e), the Board petitioned this court for enforcement of its order.

III

Whether we enforce the Board's order depends on the soundness of the Board's decision to certify the Union which, in turn, depends on the validity of the election. NLRB v. Hood Furniture Mfg., Co., 941 F.2d 325, 328 (5th Cir.1991). We will respect the Board's decision if it is reasonable and based on substantial evidence in the record. NLRB v. New Orleans Bus Travel, Inc., 883 F.2d 382, 384 (5th Cir.1989). In challenging a representation election, the objecting party bears the burden of adducing prima facie facts that, if proven true, would invalidate the election. NLRB v. Klingler Elec. Corp., 656 F.2d 76, 79 (5th Cir.1981). The objecting party must produce evidence of misconduct that "interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.1969). To overturn a Board decision, the objecting party must submit affidavits that contain "specific evidence of specific events from or about specific people." NLRB v. Claxton, Mfg. Co., 613 F.2d 1364, 1366, clarified, 618 F.2d 396 (5th Cir.1980). We will remand for a hearing when the objecting party raises substantial and material factual issues supported by a specific proffer of evidence which, if true, would be sufficient to set aside the election. Gulf Coast Automotive Warehouse Co. v. NLRB, 588 F.2d 1096, 1098 (5th Cir.1979). We must review all of the events in their totality in making our determination. Hood, 941 F.2d at 330. Further, we must closely scrutinize misconduct when, as here, the election results were close. NLRB v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir.1972). Taking into account all of the circumstances--including the closeness of the vote--we must determine whether the alleged misconduct violated the "laboratory conditions" necessary for a valid election. Home Town Foods, Inc. v. NLRB, 416 F.2d 392, 396 (5th Cir.1969). As we have previously stated:

The "laboratory conditions" test represents an ideal atmosphere in which a free choice may be made by employees, protected from interference by employer, union, Board agent, or other parties. As to any conduct objected to as interference, the critical Board determination is whether the employees were permitted to register a free choice.

Id. (citations omitted). ²

We must apply the above standards to two instances of union misconduct that the Company contends invalidates the election. First, James Jones, a pro-union employee, cursed and threatened another employee who was standing in the voting line. Second, Herman Hart, a pro-union employee, electioneered in the voting room and in areas adjacent to the voting room.

A

In deciding whether the misconduct of an employee who was not an agent of a union, such as Jones, tainted the "laboratory conditions" necessary for a valid election, we must determine if the employee's acts "disrupted the voting procedure or destroyed the atmosphere necessary to the exercise of a free choice in the representation election." Claxton, 613 F.2d at 1371. In order to overturn an election based on coercive conduct, the objecting party must show that the coercive conduct is "so related to the election as to have a probable effect upon the employees' actions at the polls." Exeter 1-A Limited Partnership v. NLRB, 596 F.2d 1280, 1282 (5th Cir.1979).

Here, the affidavits show that Jones entered the voting room at approximately 10:30 a.m. and walked toward a line of 8 to 14 employees waiting to vote. Perry Leonard was close to the end of the voting line and was wearing a "Vote No" sticker. Jones walked directly toward Leonard and loudly exclaimed, "Look at this [m.f.] here." Leonard replied, "What's the matter?" Jones kept walking directly toward Leonard and loudly stated, "Here we are trying to do something to benefit you, and here you are with a 'Vote No' sticker on." Jones continued to walk directly toward Jones--shaking his finger in Leonard's face--until he was approximately six inches away from Leonard when Leonard reacted by putting up his hands to stop Jones. Leonard responded to Jones words and actions by stating, "Man, we can go outside with this if you want." Jones retorted, "You can't win." At this point another employee caught Jones by the arm and pulled him away from Leonard. Jones then joined the voting line and remained relatively quiet until Leonard finished voting and started to leave. Jones stated, "You can't win. It's not over with yet." Another employee, Dorothy Sims, was standing toward the front of the voting line when she heard the altercation. Sims stated that she heard other employees discussing the Jones-Leonard altercation when she returned to her workplace. The Board found that Jones was not trying to pick a fight and that there was no evidence of fear among other employees sufficient to destroy the atmosphere of free choice for the election.

We cannot agree with Board's finding. We must reiterate that Jones's conduct took place in the voting line, moments before voting, and that some 8 to 14 voters observed and heard the confrontation. Furthermore, our disagreement with the Board is affected by the posture of the record: the Board held no hearing and we must accept all allegations of the affidavits, and all reasonable inferences therefrom, in a light most favorable to the objecting party. See Hood, 941 F.2d at 329; NLRB v. Advanced Systems, Inc., 681 F.2d 570, 575 (9th Cir.1982). Finally, we are influenced to disagree with the Board because its pronouncements over the decades have insisted upon "laboratory conditions" for voting and the facts and reasonable inferences drawn from them show that the conditions were more typical of a picket line than a voting booth.

It is true that Jones did not make an overt statement that he was going to harm Leonard if he voted against the Union. Nevertheless, the only rational conclusion we can draw from the affidavits is that the combination of Jones's loud and belligerent cursing of Leonard and his menacing, stalking approach toward Leonard constitutes threatening and intimidating conduct directed at Leonard because of his voting choice. To be sure, Leonard, surely thought he was being threatened with an impending violent attack. The seriousness of the impact of the altercation was evidenced by the spread of the word of the incident to other employees in the plant.

The Board certainly has set aside elections based on similar, or even less, coercive conduct by employees. In Steak House Meat Co., 206 NLRB 28 (1973), the Board set...