Canadian American Oil Co. v. N.L.R.B.
| Decision Date | 19 June 1996 |
| Docket Number | No. 95-1284,95-1284 |
| Citation | 82 F.3d 469 |
| Parties | 152 L.R.R.M. (BNA) 2108, 317 U.S.App.D.C. 225, 64 USLW 2738, 131 Lab.Cas. P 11,563 CANADIAN AMERICAN OIL CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Lisa P. Sullivan argued the cause for petitioner, with whom Kent C. Jonas was on the brief. Ronald I. Tisch, Washington, DC, entered an appearance.
Meredith L. Jason, Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on the brief. Linda Dreeben, Supervisory Attorney, entered an appearance.
Before: WALD, WILLIAMS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
The unfair labor practice charge in this appeal 1 arises out of a union election held at the Divisidero Touchless Car Wash ("Car Wash"). After Local 350 of the Sanitary Truck Drivers and Helpers, International Brotherhood of Teamsters ("the union") won the election and was certified as the exclusive bargaining representative of Car Wash's employees, Car Wash sought to have the election set aside because of alleged threats of violence by union representatives during the campaign. Prior to the hearing on these election objections, Car Wash also alleged that union officials were threatening employees with retaliation if they testified against the union. Claiming that the employees would be too afraid to testify in the face of these threats, Car Wash requested that the hearing officer close the hearing to everyone but each side's attorneys during the taking of testimony, and then bar the attorneys from revealing the identities of employee witnesses. The hearing officer rejected this proposal. When none of the employees subsequently showed up to testify at the hearing, Car Wash sought to admit their redacted statements into evidence as a substitute, but the hearing officer refused to admit the declarations. As a result, Car Wash was left with no evidence to support its objections to the election, and the hearing officer recommended that the Board rule against the employer. The National Labor Relations Board (the "Board") agreed and certified the union as the exclusive collective-bargaining representative of Car Wash's employees.
Car Wash seeks invalidation of this result, on the ground that the Board was obligated to accommodate threatened employees by shielding their identities from union representatives during the hearing. Although we are disturbed by the Board's inflexible response to allegations which, if true, give rise to reasonable fears of retaliation that would inhibit the employees from testifying, the Board did not abuse its discretion in denying Car Wash's specific proposals.
On July 19, 1994, the union filed a petition to represent the employees of Divisidero Touchless Car Wash, an entity owned by Canadian American Oil Company. The Board conducted an election on September 7, 1994; of the 86 eligible Car Wash employees, 58 voted for the union, 21 voted against the union, and 4 ballots were challenged. Car Wash filed objections to the election, arguing that the union had unlawfully intimidated employees who voiced anti-union sentiments and promised unlawful financial rewards to pro-union workers. In support of its objections, Car Wash submitted several declarations by employees who claimed that pro-union workers threatened them with physical violence and hefty union membership fees if they did not vote for the union. One employee also stated that he was threatened with loss of his job if he did not support the union. 2 Based on these declarations, the NLRB's Regional Director scheduled a hearing on the election objections.
Prior to the hearing, counsel for the employer wrote to the Regional Director, claiming that the employees whom Car Wash intended to call as witnesses against the union were afraid to appear. She stated:
... [These employees] have expressed grave fear of physical violence against them if they testify at the upcoming hearing. This fear was heightened when, at a recent union meeting, union officials said that they were anxious "to see the faces of those who are providing information against the union, so we can take care of them." One high-ranking union official said that once he saw the faces and learned the names of those who provided information against the union, he would tell others that they could "kick and break their ass" or kill them.
In this letter, Car Wash's counsel requested that the Board adopt special procedures to protect the identities of employee witnesses. Specifically, Car Wash proposed that the Board hold an "attorneys-eyes-only" hearing, excluding everyone but counsel for each party from the proceedings and prohibiting counsel from revealing the identity of employee witnesses to anyone else in the union. The Board's Regional Office Director rejected this proposal, informing Car Wash that the Board appreciated its concerns, but had no mechanism through which it could protect the identity of the witnesses.
On the hearing date, none of the employees subpoenaed by Car Wash showed up. The hearing officer asked Car Wash if it wanted the subpoenas enforced against its employees, but Car Wash declined, expressing reluctance to force its workers to identify themselves to the union representatives present at the hearing. The employer then tried to submit three declarations by employees who claimed to have been the subject of union intimidation and threats, with all information about their identities redacted. 3 The union objected, arguing that as hearsay, the affidavits were admissible only for cross-examination and could not be substituted for direct testimony of live witnesses. The hearing officer refused to admit the declarations into evidence, but reminded Car Wash that the Board's Regional Office was willing to investigate allegations that union representatives had threatened retaliation against any employees who testified at the hearing. Car Wash turned down this offer for the same reason it chose not to have the subpoenas enforced: any investigation would result in eventual disclosure of the threatened employees' identities to the union officials named as the sources of those threats.
Without live witnesses or admissible declarations, Car Wash had no case, and the hearing officer recommended that the Board overrule Car Wash's objections to the election. His report first addressed the Regional Director's decision to deny Car Wash's request for an "attorneys-eyes-only" hearing. He concluded that the Board's rules, which permit each party to have a representative of its choice at a hearing, precluded Car Wash's proposal. The hearing officer then explained why he had excluded the employee declarations, noting that settled case law and Board rules permit the use of affidavits only for impeachment of witnesses testifying on cross-examination, not as admissible evidence in lieu of oral testimony, and reasoning that even if the declarations were otherwise admissible, undisclosed evidentiary problems would have precluded their admission in redacted form. The Board accepted these recommendations and certified the union as the exclusive bargaining representative of Car Wash's employees.
Car Wash, however, refused to bargain in order to challenge the Board's resolution of its election objections. After the union filed an unfair labor practice charge against Car Wash, alleging that its refusal to bargain violated §§ 8(a)(5) and (1) of the National Labor Relations Act, the Board granted summary judgment against Car Wash. Car Wash now asks us to vacate the Board's order, claiming that the hearing officer's refusal to hold an "attorneys-eyes-only" hearing or permit the admission of the redacted employee declarations denied it a meaningful opportunity to present its election objections.
Before turning to the Board's ruling on each of Car Wash's proposals to preserve witness anonymity, we briefly set forth the applicable standard for reviewing the Board's decisions. On questions regarding representation, we accord the Board an especially "wide degree of discretion." NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946); see also C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 882 (D.C.Cir.1988) (citations omitted); Amalgamated Clothing & Textile Workers, 736 F.2d at 1564 () (citing Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 827 (D.C.Cir.1970)). We will affirm the Board's order to bargain unless the Board abused its discretion in overruling Car Wash's objections in the underlying election proceeding. See C.J. Krehbiel Co., 844 F.2d at 881-82.
Car Wash argues that the Board misinterpreted its own rules and abused its discretion by refusing to conduct an "attorneys-eyes-only" hearing. The hearing officer stated that the Board's rules, which give each party the right to have a representative of its choice present at a hearing, precluded use of the restricted type of hearing procedures requested by Car Wash. Rule 102.66(a) provides in relevant part that "[a]ny party shall have the right to appear at any hearing in person, by counsel, or by other representative." 29 C.F.R. § 102.66(a) (1995). Car Wash contends that instead of affirming the hearing officer's construction of the rule, the Board should have interpreted it as allowing the presence of either an attorney or a representative at a hearing, but not necessarily...
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