N.L.R.B. v. Fenway Cambridge Motor Hotel

• Decision Date: 10 July 1979
• Docket Number: No. 78-1472,78-1472
• Parties: 101 L.R.R.M. (BNA) 2858, 86 Lab.Cas. P 11,427 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FENWAY CAMBRIDGE MOTOR HOTEL d/b/a Howard Johnson's Motor Lodge, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 33

601 F.2d 33

101 L.R.R.M. (BNA) 2858, 86 Lab.Cas. P 11,427

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FENWAY CAMBRIDGE MOTOR HOTEL d/b/a Howard Johnson's Motor Lodge, Respondent.

No. 78-1472.

United States Court of Appeals First Circuit.

Argued April 4, 1979.

Decided July 10, 1979.

William M. Bernstein, Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and John G. Elligers, Washington, D. C., on brief, for petitioner.

Murray S. Freeman, Boston, Mass., with whom David E. Watson and Nutter, McClennen & Fish, Boston, Mass., on brief, for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The issues in this case focus on the conduct of a disputed election. The National Labor Relations Board (Board or NLRB) seeks enforcement of its order that Fenway Cambridge Motor Hotel (Company) cease and desist from the unfair labor practice found by the Board, that it bargain with the Hotel, Restaurant, Institutional Employees and Bartenders Union, Local 26, AFL-CIO (Union), and that it post appropriate notices. The Board found, after a consent election, that the Company refused to bargain collectively with the Union in violation of 29 U.S.C. § 158(a)(5) and (1). The Company maintains that it need not recognize the Union because the election was improperly conducted and thus invalid. It argues that the Board abused its discretion in certifying the election because the requisite laboratory conditions were infected by four instances of Board agent misconduct, that each purported transgression alone was significant enough to invalidate the election and that, when the four errors are viewed together, the unfairness of the election becomes all the more glaring. In the alternative, the Company takes the position that the Board abused its discretion in refusing to hold an evidentiary hearing on the Company's objections to the election.

The Board agent who conducted the election was an inexperienced law student, working with the Board for the summer. Because a segment of the electorate was not fully conversant in the English language, the notices of the election were printed in Spanish, Portuguese and English. The Company filed timely objections to the election, ¹ alleging that it was invalid due to the Board agent's misconduct: (1) delaying the opening of the polls for two to five minutes; (2) permitting the Union observer to list the challenged voters at the outset of the election; (3) standing during much of the voting so as to obstruct the observers' view and instructing one employee to vote for the Union; and (4) failing to respond to the Company observer's request that the agent retrieve the voting list which the Union observer took with him when he left the polling area shortly after the election terminated. ²

The Regional Director conducted an investigation of the Company's objections and found against it on all four, recommending that the election be certified. The Company took exceptions to the Regional Director's report, but these were rejected by the Board. On February 9, 1978, the Board granted General Counsel's motion for summary judgment and certified the election. The Company refused to bargain with the Union and this refusal resulted in the Board's finding of an unfair labor practice. The Board now seeks enforcement of its order.

Of the four objections to the election raised by the Company, only one merits serious consideration: its claim that during the election, the fledgling Board agent instructed at least one employee, Athanasios Kokolis, to vote for the Union. In his report, the Regional Director explored this objection in detail. He examined affidavits submitted by Kokolis and took testimony from the agent and the election observers for the Union and Company. Kokolis stated in his affidavit that when the agent gave him his ballot, she pointed to the "Yes" choice and instructed him to place his mark there. Kokolis became angry and asked her what she had said, and, according to him, she then pointed to both choices. The agent's testimony was that she neither recalled Kokolis nor did she ever instruct any voter to cast a ballot for the Union. The Union's election observer testified that Kokolis said nothing when he presented himself at the poll and the Company's election observer testified that he did not hear anything which may have been said between the agent and Kokolis.

While the Regional Director acknowledged the severity of the allegation against the agent and was fully cognizant of the conflict in testimony concerning the alleged incident, he found it unnecessary to make a credibility judgment and determine what did occur. In his view, even though a "serious breach may have occurred in the laboratory conditions required by the Board for the conduct of its elections," there was no need for a credibility determination and the election need not be set aside because (a) those present had already voted; (b) no other voters were in the polling area at the time; (c) Kokolis was not swayed by the agent's purported instruction; and (d) Kokolis told no one of the alleged voting instruction until three days after the election. The Regional Director concluded:

Based on the above, it is clear that even if the Board agent made the statements attributed to her and if these statements were deemed to have been an improper instruction, no voter except Kokolis knew of it prior to the closing of the polls. Moreover, the instructions did not affect Kokolis' own vote. Accordingly, even if credited, Kokolis testimony would not establish a ground for setting aside the election.

As noted in NLRB v. New England Lithographic Co., 589 F.2d 29, 31 (1st Cir. 1978), the Board is vested with a wide degree of discretion with respect to establishing the safeguards and procedures for elections and our standard of reviewing whether an election was properly certified is limited to the narrow question of whether the Board abused its broad discretion in certifying the election. NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); NLRB v. S. Prawer & Co., 584 F.2d 1099, 1101 (1st Cir. 1978); NLRB v. O. S. Walker Co., 469 F.2d 813, 817 (1st Cir. 1972).

In determining whether there was an abuse of discretion, we first note that the Regional Director erred in applying only an "impact" standard to determine whether the elective process was contaminated. The correct standard to apply in determining whether a Board agent's misconduct invalidated an election is articulated in Athbro Precision Engineering Corp., 166 N.L.R.B. 966 (1967), Vacated sub nom. IUE v. NLRB, 67 LRRM 2361 (D.D.C.1968), Acquiesced in 171 N.L.R.B. No. 4 (1968), Enforced, NLRB v. Athbro Precision Engineering Corp., 423 F.2d 573 (1st Cir. 1970). While the procedural history of Athbro is curious, ³ its holding continues to be the yardstick against which misdeeds of Board agents are measured. See NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1280-81 (5th Cir. 1979); Provincial House, Inc. v. NLRB, 568 F.2d 8, 10-11 (6th Cir. 1977); Delta Drilling Co. v. NLRB, 406 F.2d 109, 112-14 (5th Cir. 1969). In Athbro, the Board agent conducting the election was observed between polling periods drinking beer with a union representative. The Board set aside the election, rejecting the impact of the conduct on the elections as the sole test.

Although the Board Agent's conduct did not affect the votes of employees, we do not agree that this is the only test to apply.

The Board in conducting representation elections must maintain and protect the integrity and neutrality of its procedures. The commission of an act by a Board Agent conducting an election which tends to destroy confidence in the Board's election process, or which could reasonably be interpreted as impugning the election standards we seek to maintain, is a sufficient basis for setting aside that election.

Athbro, supra, 166 N.L.R.B. at 966. It is the Company's position that the Athbro rule requires that the election be set aside, or at the very least, that a hearing be held to resolve the credibility determination left unanswered by the Regional Director.

The Board in its brief suggests that there have been more egregious transgressions committed by board agents during elections which were considered harmless, citing Abbott Laboratories v. NLRB, 540 F.2d 662 (4th Cir. 1976); NLRB v. Wabash...