Colquest Energy, Inc. v. N.L.R.B.
| Citation | 965 F.2d 116 |
| Decision Date | 02 June 1992 |
| Docket Number | AFL-CI,91-5763,I,Nos. 91-5622,s. 91-5622 |
| Parties | 140 L.R.R.M. (BNA) 2799, 122 Lab.Cas. P 10,199 COLQUEST ENERGY, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, United Mine Workers of America,ntervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Herbert S. Sanger, Jr. (briefed), Wagner, Myers & Sanger, Knoxville, Tenn., and Roger K. Quillen (argued and briefed), Fisher & Phillips, Atlanta, Ga., for Colquest Energy, Inc.
Aileen A. Armstrong (argued), Deputy Associate Gen. Counsel, Peter Winkler (briefed), N.L.R.B., Office of Gen. Counsel, Washington, D.C., Martin M. Arlook, Director, N.L.R.B., Region 10, Atlanta, Ga., Rosa Wiener, N.L.R.B., Washington, D.C., for N.L.R.B.
Robert H. Stropp, Christy Hoffman (briefed), United Mine Workers of America, Washington, D.C., John L. Quinn, Claudia Pearson (argued), Longshore, Nakamura & Quinn, Birmingham, Ala., for United Mine Workers of America, AFL-CIO.
Before KENNEDY and JONES, Circuit Judges, and PECK, Senior Circuit Judge.
This matter comes before the court on petition of Colquest Energy, Inc. [Colquest] to review an order of the National Labor Relations Board [NLRB or Board] issued May 15, 1991. The NLRB has cross-petitioned for enforcement of the same order. The court has jurisdiction of this case pursuant to Sections 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. §§ 160(e) and (f). Colquest, a Tennessee corporation engaged in the business of mining and selling coal, has its facilities in Clairfield, Tennessee. For the reasons stated below, we grant Colquest's petition for review and deny the NLRB's cross-petition for enforcement of its order.
On May 18, 1990 the United Mine Workers of America, AFL-CIO [UMWA] filed a representation petition with the NLRB seeking certification as the collective bargaining representative of Colquest's production and maintenance employees. On June 19, 1990 the NLRB conducted a secret ballot representation election. Of the 75 votes cast, 39 were for representation and 30 were against representation by the UMWA; six ballots were challenged.
Colquest filed with the Regional Director four objections to the conduct of the election. For the sake of clarity, we will discuss Colquest's specific factual allegations as we address the company's objections seriatim. Colquest claimed that UMWA agents interfered with the ability of Colquest's employees to make a free choice in the representation election: 1) by electioneering at the polls while employees were standing in line to vote; 2) by promising voters economic benefits in exchange for votes; 3) by threatening certain voters; and 4) by promising to waive union fees for those employees who were willing to acknowledge their support of the UMWA prior to the election.
The NLRB's Regional Director conducted a confidential investigation of Colquest's claims. On August 31, 1990 the Regional Director issued a report recommending that Colquest's objections be overruled. Colquest filed with the NLRB timely exceptions to the Regional Director's recommendations. On January 18, 1991 the NLRB issued an order adopting the Regional Director's recommendations, and certified the UMWA as the exclusive bargaining representative of Colquest's production and maintenance employees.
Colquest did not comply with the NLRB's order; the company refused to bargain with the UMWA. Colquest argued before the Board that the NLRB's certification of the UMWA was improper because the election was improperly conducted. Colquest demanded an evidentiary hearing in order to demonstrate that the conduct of certain individuals prevented a fair representation election. The UMWA filed an unfair labor practice charge against Colquest. On May 15, 1991 the NLRB issued a decision and order in which the Board found that Colquest had violated 29 U.S.C. §§ 158(a)(1) and (5) by refusing to bargain with the UMWA. Because the NLRB determined that Colquest neither presented special circumstances that would require the Board to reexamine its prior decision nor presented newly discovered evidence, the NLRB found for the UMWA and refused to grant Colquest an evidentiary hearing. Colquest petitions this Court to review the NLRB's decision; the NLRB cross-petitions for enforcement of its order.
At oral argument counsel for the NLRB was reminded of the fact that the Board had failed to file a portion of the record on appeal. Specifically, the NLRB had not filed employee affidavits that were attached to Colquest's exceptions to the Regional Director's Report on Objections. We invited counsel for the NLRB to move to furnish the previously omitted portions of the record; the NLRB's counsel made the motion which was granted on February 25, 1992.
Was an evidentiary hearing required?
We recognize that the NLRB has broad discretion in resolving representation disputes. NLRB v. Basic Wire Products, Inc., 516 F.2d 261, 263 (6th Cir.1975). The function of this Court sitting in review of an NLRB decision is to ascertain whether the Board abused its discretion in resolving the dispute. NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327-328, 91 L.Ed. 322 (1946). The NLRB abuses its discretion if it refuses to grant an evidentiary hearing when there exist material issues of fact concerning whether a fair election was held. See Prestolite Wire Div. v. NLRB, 592 F.2d 302, 306-307 (6th Cir.1979). Furthermore, the NLRB abuses its discretion if it adopts the report of a Regional Director without reviewing the documentary evidence relied on by the Director. NLRB v. North Elec. Co., Plant No. 10, 644 F.2d 580, 584 (6th Cir.1981). Nevertheless, even if the Board has abused its discretion in not considering the entire record before the Regional Director, we do not remand a case for an evidentiary hearing before the NLRB unless an employer's objections and supporting proofs indicate that there exist material, factual disputes with the Regional Director's report which, if proved, demonstrate that the election should be overturned. Id. We have reached this conclusion to prevent a disgruntled, losing party from employing undue dilatory tactics in an effort to invalidate the results of a representation election. See Revco D.S., Inc. v. NLRB, 653 F.2d 264, 268 (6th Cir.1981).
Because it is the party that seeks to overturn the results of the representation election, Colquest bears the burden of demonstrating that there exist material issues of fact concerning whether the objectionable conduct affected the results of the election. See NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir.1991). Specific evidence that the unlawful acts occurred is required; it must establish that the NLRB could reasonably infer that the conduct interfered with the voters' exercise of free choice. Id.; cf. Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 316 (6th Cir.1987), cert. denied, 484 U.S. 896, 108 S.Ct. 230, 98 L.Ed.2d 188 (1987). In other words, in order to prevail before this Court Colquest must make out a prima facie case for invalidating the election.
According to its own regulations, the NLRB must grant an evidentiary hearing on objections to conduct affecting the results of an election whenever the objections "raise substantial and material issues." 29 C.F.R. § 102.69(d). Colquest contends that each of its four objections raises such issues. In addition, Colquest contends that it has offered proof in support of each of its objections; Colquest maintains it has submitted affidavits from employees that demonstrate facts contrary to the Regional Director's findings.
Colquest contends that UMWA supporters and/or agents engaged in electioneering at the polls while voters were standing in line to vote. The affidavits provided by Colquest's employees, Sam Perry and Jerry Weaver, state that on election day union supporters, wearing union hats and insignias, stood near the line to the polls and urged voters to protect their jobs with a vote for the union. In addition, the affidavits indicate that the UMWA's alleged election observer, David Hatfield, entreated voters to vote for the union telling them that this was the only way he could get back his job.
Colquest argues that such electioneering tactics fall within the prohibitions established by this Court in Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351 (6th Cir.1983). The employer in Kitchen Fresh alleged that union employees made intimidating comments as they loitered in an area immediately outside the polling room. Furthermore, the employer alleged that between eight and thirty pro-union employees (including a union agent) congregated in this same area and attempted to rally support for the union. The court held that these allegations raised material issues of fact that required a hearing. The court in Kitchen Fresh cited with approval a Fifth Circuit decision in which the court held that electioneering by mere rank and file employees may be so egregious as to warrant a new election. Kitchen Fresh, 716 F.2d at 358-359, citing NLRB v. Carroll Contracting and Ready-Mix, 636 F.2d 111, 113 (5th Cir. Unit B Feb. 1981). Colquest argues it is entitled to a hearing in order to demonstrate that union agents were responsible for the electioneering, or to demonstrate that the electioneering was so outrageous that it made it impossible to conduct a fair and impartial election.
The NLRB and the UMWA argue that any electioneering that occurred at Colquest's Clairfield facility was insufficiently serious to warrant setting aside the election. According to its decision in Milchem, Inc., 170 N.L.R.B. 362 (1968), the NLRB will set aside an election on grounds of unfair electioneering if a party demonstrates the occurrence of "prolonged conversations between representatives of...
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