Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC v. N.L.R.B.

• Decision Date: 22 June 1984
• Docket Number: I,AFL-CI,CL,P,Nos. 82-2359,83-1369,s. 82-2359
• Citation: 736 F.2d 1559
• Parties: 117 L.R.R.M. (BNA) 2453, 237 U.S.App.D.C. 194, 101 Lab.Cas. P 11,092 AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, M. Lowenstein Corporation, Intervenor. M. LOWENSTEIN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Amalgamated Clothing and Textile Workers Union,ntervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1559

736 F.2d 1559

117 L.R.R.M. (BNA) 2453, 237 U.S.App.D.C. 194,

101 Lab.Cas. P 11,092

AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO, CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, M. Lowenstein Corporation, Intervenor.

M. LOWENSTEIN CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,

Amalgamated Clothing and Textile Workers Union, AFL-CIO,

CLC, Intervenor.

Nos. 82-2359, 83-1369.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 13, 1984.

Decided June 22, 1984.

Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Leon Schulzinger, New York City, with whom Arthur M. Goldberg and David M. Heiser, New York City, were on the brief, for Amalgamated Clothing and Textile Workers Union, petitioner in No. 82-2359 and intervenor in No. 83-1369.

John S. Burgin, Greenville, S.C., with whom Stuart M. Vaughan, Jr., Greenville, S.C., was on the brief, for M. Lowenstein Corp., petitioner in No. 83-1369 and intervenor in No. 82-2359.

Christine Weiner, Atty., N.L.R.B., Washington, D.C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., was on the brief, for respondent.

Before WRIGHT, MIKVA and BORK, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Concurring opinion filed by Circuit Judge BORK.

J. SKELLY WRIGHT, Circuit Judge:

On July 1, 1981 a representation election was held at the Morganton, North Carolina plant of M. Lowenstein Corp. (the company). The Amalgamated Clothing and Textile Workers Union (the union) won the election by the narrow margin of 101-94. In addition to the counted ballots, five ballots were challenged. Today, more than two and a half years later, collective bargaining between the company and the employees' elected representative at the plant has yet to begin. In the intervening period the company has contested the National Labor Relation Board's decision to certify the union and has refused to obey the Board's bargaining order so that it may obtain judicial review of the certification decision. See Boire v. Greyhound Corp., 376 U.S. 473, 477-478, 84 S.Ct. 894, 896-897, 11 L.Ed.2d 849 (1964) (certification decisions are not reviewable as such, but can be examined in the course of proceedings brought against employer for refusal to bargain); American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940) (same); Hartz Mountain Corp. v. Dotson, 727 F.2d 1308, 1310-1312 (D.C.Cir.1984) (discussing cases). The Board in turn has found the company's refusal to bargain to be an unfair labor practice in violation of Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), 158(a)(5) (1982). In No. 83-1369 the company petitions for review of the Board's unfair labor practice finding. In No. 82-2359 the union petitions for review of the Board's remedy for the unfair labor practices. The Board has cross-applied for enforcement of its order. For the reasons that follow we affirm the Board's order in all respects.

The procedural history of this case is apparently not unusual. The company filed timely objections to the election results. Among the objections urged by the company--and the only objections before the court today--were allegations that union agents and supporters had threatened and otherwise coerced eligible voters, thereby destroying the "laboratory conditions" required for an NLRB election. On September 1-2, 1981 a hearing was held on the company's charges. On November 5, 1981 the Hearing Officer issued his report recommending that the Board reject the company's charges and certify the union as the exclusive representative of the employees in the bargaining unit. The Board accepted ¹ the Hearing Officer's recommendations on March 17, 1982. After the company refused to bargain or to supply information to the union, the union filed an unfair labor practice charge. Both the NLRB General Counsel and the union filed motions for summary judgment before the Board, with the union's motion including a request for special "make whole" remedies (i.e., an "interim" grievance procedure, litigation expenses, attorney fees, and a bargaining order retroactive to the date of the election).

On September 24, 1982 the Board granted the General Counsel's summary judgment motion and denied the union's request for special remedies. 264 NLRB No. 14 (1982). It is this decision--challenged by the company as to liability and by the union as to remedy--that is before the court in this proceeding.

I. THE LIABILITY DETERMINATION

A. Applicable Legal Standards

The Board has stated that a representation election should be held in "laboratory * * * conditions as nearly ideal as possible, to determine the uninhibited desires of the employees." General Shoe Corp., 77 NLRB 124, 127 (1948). But, although the "laboratory conditions" standard represents a noble ideal, it must be applied flexibly, for in its extreme form it is a standard that "no seasoned observer considers realistic." Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 HARV.L.REV. 38, 45 (1964). We have noted "that union elections are often not conducted under ideal conditions" and that "there will be minor (and sometimes major, but realistically harmless) infractions by both sides, and that the Board must be given some latitude in its effort to balance the right of the employees to an untrammeled choice, and the right of the parties to wage a free and vigorous campaign." NLRB v. Mar Salle, Inc., 425 F.2d 566, 571 (D.C.Cir.1970) (internal quotation marks omitted); accord NLRB v. ARA Services, Inc., 717 F.2d 57, 66 (3rd Cir.1983) (en banc ) ("Given the nature of inter-employee relations, the Board cannot realistically be expected to create a totally frictionless election environment."); NLRB v. Heath Tec Division/San Francisco, 566 F.2d 1367 (9th Cir.1978); Bush Hog, Inc. v. NLRB, 420 F.2d 1266, 1267 (5th Cir.1969). It is for the Board in the first instance to make the delicate policy judgments involved in determining when laboratory conditions have sufficiently deteriorated to require a rerun election.

The company's particular allegation in this case is that laboratory conditions were destroyed by activities of union agents and supporters that created a climate of fear and coercion. In cases involving allegations of pro-union coercion, a court will overturn the Board's decision to certify the victorious union only where the activities of union supporters created "an atmosphere of fear and coercion which made a free and fair election impossible." Daylight Grocery Co. v. NLRB, 678 F.2d 905, 909 (11th Cir.1982); accord Tuf-Flex Glass v. NLRB, 715 F.2d 291, 296 (7th Cir.1983); NLRB v. Advanced Systems, Inc., 681 F.2d 570, 575 (9th Cir.1982); Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 649 F.2d 589, 594 (8th Cir.1981) (citing NLRB v. Griffith Oldsmobile, Inc., 455 F.2d 867, 870 (8th Cir.1972)). In controlling and overseeing representation elections, the Board enjoys great discretion. See Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 826-828 (D.C.Cir.1970).

There are a number of reasons, however, why the Board has particularly broad discretion in making the kind of decision under review here: the decision whether employees' free choice was so attenuated that a rerun election is necessary. The Board's conclusion concerning the level of coercion present in the "atmosphere" of a plant at the time of an election is the kind of delicate, fact-based determination that can be made only after careful weighing of all of the evidence. Because the Board is much closer to the facts than we as an appellate court can possibly be, our review of the Board's conclusions is limited. See 29 U.S.C. Sec. 160(e) (1982) ("The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive."); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Conair Corp. v. NLRB, 721 F.2d 1355, 1367-1368 (D.C.Cir.1983). In this case, for instance, a Hearing Officer held a two-day hearing in which representatives of the company, union officials, and factory employees testified. The Hearing Officer was uniquely well-placed to draw conclusions about credibility when testimony was in conflict, and he was also far better situated than are we to draw conclusions about a matter as ephemeral as the emotional climate of the plant at the time of the election. See, e.g., Tuf-Flex Glass, supra, 715 F.2d at 295 (Hearing Officer's credibility determinations "may not be overturned absent the most extraordinary circumstances such as utter disregard for sworn testimony or the acceptance of testimony which is on its fact incredible"); Beaird-Poulan Division, supra, 649 F.2d at 592 n. 2; Certain-Teed Products Corp. v. NLRB, 562 F.2d 500, 505 (7th Cir.1977). The Hearing Officer's conclusions were fully endorsed by the Board, and we are extremely reluctant to second-guess these conclusions based on our reading--two years later--of a cold record. See Worley Mills, Inc. v. NLRB, 685 F.2d 362, 364 (10th Cir.1982).

Equally important in counseling deference to Board decisions in cases of this kind is the fact that the Board's particular expertise qualifies it--rather than the courts--to decide whether to call for a rerun election. Cf. Conair Corp., supra, 721 F.2d at 1373. The representation election process under the NLRA is not an abstract exercise in achieving ideal conditions; it is rather an intensely practical process designed to maximize employee free choice under the very real constraints and conditions that exist in the nation's workplaces. One of these constraints is the fact that delay itself almost inevitably works to the benefit of the employer and may frustrate...