Associated Rubber Co. v. N.L.R.B.
| Decision Date | 05 July 2002 |
| Docket Number | No. 01-12884.,01-12884. |
| Citation | 296 F.3d 1055 |
| Parties | ASSOCIATED RUBBER COMPANY, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, United Steelworkers of America, AFL-CIO-CLC, Respondent-Intervenor. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Curtis L. Mack, Richard B. Hankins, Christopher Shane Keith, Diana D. Suber, McGuire Woods LLP, Atlanta, GA, for Associated Rubber Co.
Frederick C. Havard, Aileen A. Armstrong, Christopher Young, National Labor Relations Board, Washington, DC, Joseph P. Stuligross, United Steelworkers of America, AFL-CIO-CLC, Pittsburgh, PA, for N.L.R.B. and United Steelworkers of America.
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before EDMONDSON, Chief Judge, and CARNES and SILER,* Circuit Judges.
An employee of Associated Rubber Company was threatened and subjected to greater risk of physical injury on the job because of his opposition to the union, and news of that happening was disseminated among a number of employees. The issue is whether that misconduct invalidates the results of the close vote in favor of the union in the certification election which occurred shortly thereafter. In a split decision the National Labor Relations Board concluded that the election was not tainted and certified the union, the United Steelworkers of America, AFL-CIO-CLC, as the collective-bargaining representative of an appropriate unit of Associated Rubber's employees. When Associated Rubber thereafter refused to bargain with the newly certified union, the Board ordered it to do so. Associated Rubber has appealed that order, and the Board has cross-appealed asking us to enforce the order. For reasons we will discuss, we set aside the Board's order.
On June 14, 1999, the union filed a petition with the Board seeking certification as the collective bargaining representative of certain maintenance workers, truck drivers, and mechanics employed at Associated Rubber's three plants in Tallapoosa, Georgia, where the company operates its rubber production facilities. A secret ballot election was held on July 23, 1999, and the union won by a vote of 53 to 50, with one non-determinative challenged ballot. Associated Rubber, however, timely filed objections to the election, alleging that certain pro-union employees had unlawfully interfered with the election by, among other things, threatening personal harm and property damage to employee voters who did not support the union in the election.
The Board ordered a hearing on Associated Rubber's objections. At the hearing there was evidence of numerous incidents of objectionable conduct on the part of some of Associated Rubber's pro-union employees, occurring both before and after the filing of the election petition, as well as on the day of the election itself. Among other things, there was evidence about what the parties refer to as the "Banbury mixer incident."
A Banbury mixer is a piece of machinery used to custom mix rubber products. Raw materials, by formula, go into it at a rate controlled by the operator. When the materials reach a prescribed high temperature, the mixing is complete and the mixer automatically releases the resulting compound as one hot, large 450-pound batch, which falls eight to ten feet below to a lower level where there is a mill. There, the mill operator maneuvers the batch through two rollers until the material is worked into a pliable sheet of rubber.
Each batch of compound that comes out of the Banbury mixer has a prescribed cycle time which is based on how the compound was handled in the past. The cycle time is the total of the mix time, which is the time the raw materials are mixing in the mixer, and the "down time," which is the time the mill operator is maneuvering the batch through the rollers. The Banbury mixer operator and the mill operator know the prescribed cycle times for the different compounds. The Banbury mixer operator is responsible for timing the loading of the raw materials into the mixer to comport with the cycle times.
The operator of each Banbury mixer controls the rate at which materials flow into the corresponding mill operator's area, because the rate at which he puts raw materials into the mixer determines the rate at which the hot, 450-pound batches drop to the mill below. As a result, the Banbury mixer operator has the power to make life difficult or even dangerous for the mill operator who is on the receiving end of the output. The prescribed minimum cycle time is necessary to allow the mill operator to maneuver all 450 pounds of the scalding hot rubber batch through the rollers and into a pliable sheet of rubber before the next 450-pound batch falls. If the Banbury mixer operator feeds the raw materials into the mixer at an accelerated pace, the output rate will increase so that the mill operator may not be able to maneuver the entire batch of rubber through the rollers before the next batch drops, thereby leaving him with leftover compound to work with in addition to the latest 450-pound batch. If the cycle continues at an accelerated rate, the load can continue to back up on the mill operator, giving him less and less time to deal with more and more of the hot compound. The danger the Banbury mixer operator can create for the mill operator stems from the fact that accelerating the cycle time leaves the mill operator with less and less time to deal with ever increasing amounts of material.
The facts surrounding the Banbury mixer incident in this case are as follows. Less than two weeks before the election, Tim Spears, the first shift mill operator in Plant 2 for Banbury mixer 1's production line, showed his opposition to the union by refusing to accept some literature that a union supporter offered him. Leroy Brown, a union supporter and first shift operator for that Banbury mixer, told Spears he had better accept the literature. When Spears declined, Brown told him that he would "pay" for it the next day. Spears did not pay for it the next day, but he did pay for it seven or eight days later — just three days before the union certification election.
On July 20, 1999, while Brown was operating Banbury mixer 1 and Spears was operating the mill below, Brown speeded up the rate at which the heavy, hot batches of compound were falling and had to be handled by Spears.1 The designated cycle time for the compound being produced is five minutes, and the customary cycle time for it ranges from five to six minutes.2 Production records show, however, that between approximately 7:00 a.m. and 9:30 a.m. on July 20, over thirty batches were run, and more than twenty of those batches were run at less than the designated five minute cycle time, with the range for most of those cycles being from 4.1 to 4.6 minutes. Spears attempted to get Brown to slow down by repeatedly ringing a buzzer available for that purpose, but it did no good. Brown kept up the faster pace. At one point another employee, Tony Gerald (who happened to favor the union), had to come to Spears' aid and help him get the batches off the mill. The undisputed effect of Brown's malicious conduct over the two-and-a-half hour period was to make things difficult for Spears.
When relieved that morning for his first break, Spears complained to the general shift foreman that Brown had been running the Banbury mixer "a lot faster than the [normal] cycle," which was "making his job extremely rough on him." Only after that complaint did the output from Brown's mixer slow down to the normal rate. Spears was sufficiently rattled by the incident to tell the foreman that if the union won the election, he would quit his job out of fear that the incident might reoccur.
It was no secret around the plant that Brown had threatened Spears for refusing to take union literature, and had then carried out the threat. Before the election other employees were aware of the threat and knew that Brown had speeded up the mixer to Spears' detriment. Spears himself told employee Larry Howard, and five or six employees, including Brown (but not Spears, of course), later talked and laughed about the incident in the break room. The election was held just three days after it happened.
After a Board-ordered hearing, the hearing officer issued a report recommending that all of Associated Rubber's objections to the election be overruled and that the union be certified as the employees' bargaining representative. With regard to the Banbury incident, the hearing officer, with considerable understatement, found that it was "evidently more serious than a harmless prank." However, in light of the fact that the incident was not of a sustained or repeated nature, and that a pro-union employee had eventually come to Spears' aid, the hearing officer concluded that Associated Rubber had not established that Brown's conduct tainted the election.
Associated Rubber filed with the Board exceptions to the hearing officer's recommendation and report. The Board adopted the officer's recommendation that the objections to the validity of the election be overruled and certified the union as the unit's exclusive collective-bargaining representative. With regard to the Banbury incident, while not doubting that it had happened, two members of the Board did not believe the incident was severe enough to justify invalidating the results of the election, believing instead that the incident and the dissemination of news about it did not affect the results.
The Board majority found, first, that Spears' affidavit had gotten the date of the incident wrong. His affidavit said that the Banbury incident occurred on July 13, but production records showed that the shortened cycles actually happened on July 20. Second, the majority noted that Spears had not actually sustained any physical injury as a result of the incident. Third, it said that the risk of injury...
To continue reading
Request your trial
-
Transit Connection, Inc. v. Nat'l Labor Relations Bd.
...decision so long as its conclusion is supported by ‘substantial evidence,’ viewing the record as a whole." Associated Rubber Co. v. N.L.R.B. , 296 F.3d 1055, 1060 (11th Cir. 2002) (quoting Cooper/T. Smith , 177 F.3d at 1261 ). We must accept the NLRB’s factual findings, especially credibili......