Daylight Grocery Co., Inc. v. N.L.R.B.

• Decision Date: 14 June 1982
• Docket Number: No. 81-5679,81-5679
• Citation: 678 F.2d 905
• Parties: 110 L.R.R.M. (BNA) 2915, 94 Lab.Cas. P 13,609 DAYLIGHT GROCERY COMPANY, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 905

678 F.2d 905

110 L.R.R.M. (BNA) 2915, 94 Lab.Cas. P 13,609

DAYLIGHT GROCERY COMPANY, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 81-5679.

United States Court of Appeals Eleventh Circuit.

June 14, 1982.

William H. Andrews, Coffman, Coleman, Henley & Andrews, Mary W. Jarrett, Jacksonville, Fla., for petitioner cross-respondent.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Penny Pilzer, Arlington, Va., for respondent cross-petitioner.

Petition for review and cross application for enforcement of an order of the National Labor Relations Board.

Before INGRAHAM ^*, HATCHETT and ANDERSON, Circuit Judges.

HATCHETT, Circuit Judge:

The primary question in this case is whether the National Labor Relations Board correctly reacted to objections filed by an employer to a unit determination and a union certification election. Finding no abuse of discretion by the Board, we enforce its order.

The petitioner, Daylight Grocery Company, Inc. (Company), filed its petition seeking review of the order of the National Labor Relations Board (Board), ordering the Company to bargain with Retail Store Employees Union Local 441, affiliated with United Food & Commercial Workers International Union AFL-CIO-CLC (Union). The Board filed a cross application seeking enforcement of its order. ¹

FACTS

Daylight Grocery Company, Inc., is a Florida Corporation engaged in the retail food business. During the period in dispute, its supermarket division operated four retail stores in Duval County, Florida. On April 3, 1980, the Union filed a certification petition seeking to represent certain employees at all four stores. The Company refused to recognize the Union.

On April 22, 1980, a hearing was held before the Board's hearing officer. The Union sought a bargaining unit which would include all full-time and regular part-time employees, including head cashiers, produce managers, stock managers, and baggers. The bargaining unit would exclude meat department employees, salesmen, security guards, store managers, and assistant managers. The Company argued for a unit which would include full-time and regular part-time clerks and cashiers; and one which would exclude all store managers, head cashiers, produce managers, stock managers, meat market department employees, baggers, salesmen, security guards, and supervisors.

The unit sought by the Union would represent 107 employees. The unit proposed by the Company would represent about seventy employees. On May 11, 1980, the Board's regional director issued his decision; the unit would be substantially as the Union had requested. It would include baggers, mostly high school students who worked part-time on an as-needed basis, but would exclude produce department managers, stock managers, guards, and supervisors. Whether head cashiers were to be in the unit was left undecided. Whether they were supervisors would be determined later.

A secret ballot certification election was held on June 6, 1980. Of ninety-four employees who casted ballots, forty-four voted for representation, forty-three voted against representation, and seven ballots were challenged. After the challenged ballots were counted, forty-seven voted for representation, and forty-six voted against representation.

The Company raised objections to the unit determination and the election. The regional director rejected the Company's objections. The Company refused to negotiate. The Union brought unfair labor practice charges, and the Board ordered the employer to bargain with the Union. ²

We must decide whether (1) the Board properly determined to include baggers in the bargaining unit; (2) whether threats to employees by a customer violated the laboratory conditions, and require a new certification election; (3) whether a ballot challenged by the Company was sufficiently clear to manifest voter intent; and (4) whether procedural objections which accused the Board of abuse of discretion and violation of due process are significant enough to require reversal.

I. BAGGERS

The Company contends that the Board violated its own unit determination standards by including casual student employees in a bargaining unit which includes full-time produce clerks, stock clerks, and cashiers. The Company relies on the four-part test adopted by the Board in Shady Oaks, 229 NLRB No. 5 (1977). The Company insists the baggers failed to meet the Shady Oaks conditions. Shady Oaks' four factors for consideration are (1) regularity and continuity of employment; (2) tenure of employment; (3) similarity of work duties; and (4) similarity of wages, benefits, and other working conditions. 229 NLRB No. 5 at 54-55.

The Board contends that the baggers are properly included in the unit because the baggers share a community of interest with other employees and work in close contact with the other employees on a daily basis. ³ The Board also relies upon its considerable discretion in unit determination. NLRB v. Southern Metal Service, 606 F.2d 512, 514 (5th Cir. 1979); NLRB v. H. M. Patterson & Sons, 636 F.2d 1014, 1017 (5th Cir. 1981). ⁴

The Board denies it has violated the teachings of Shady Oaks, and maintains that Shady Oaks was significantly modified by Systems Auto Park, 248 NLRB No. 144 (1980). Further, the Board denies any hard and fast standards in this area. Instead, it maintains it has applied a well articulated series of themes and considerations to be used to arrive at unit determination.

In reviewing these conflicting contentions, we must remember that this court's standard of review is "exceedingly narrow" when it reviews a challenge to a unit determination by the Board. NLRB v. Southern Metal Services, 606 F.2d 512, 514 (5th Cir. 1979). The Board's decision is vested with a large measure of discretion and is not to be disturbed unless the Board's discretion has been exercised "in an arbitrary or capricious manner." Spartans Industries, Inc. v. NLRB, 406 F.2d 1002, 1005 (5th Cir. 1969); NLRB v. J. C. Penney Co., 559 F.2d 373, 375 (5th Cir. 1977).

The well established law of this circuit provides that the Board is not required to select the most appropriate bargaining unit for employees; by statute, it is only required to select a unit appropriate under the circumstances. 606 F.2d at 514, see J. C. Penney, 559 F.2d at 375.

Our review reveals that the Board selected an appropriate unit for the baggers under the circumstances. The Board determined that the baggers work is performed at the checkout counter, and is closely integrated with that of cashiers, who check out groceries. Further, they share the same direct supervision from the store managers and assistant managers. As a matter of practice, other unionized stores in the area are organized in units including baggers with clerks and cashiers. The burden was on the Company to show that the Board's determination was lacking substantial evidentiary support, arbitrary, capricious, or an abuse of discretion. Southern Metal Services, 606 F.2d at 514. The Company has failed to meet its burden.

II. THREATS

The day before the election, a "stranger," later identified as a customer named Kitchen-approached several employees in the store and said: "You had better vote for the Union," or "You had better vote yes." The Company argues that the comments made by this customer to several employees the day before the election created an atmosphere of fear and coercion which made a free and fair election impossible. The Company relies on NLRB v. Tampa Crown Distributors, 272 F.2d 470 (5th Cir. 1959), for the proposition that anonymous threats which create a climate of fear and coercion for the voters require a new election. Tampa Crown articulated a three-step analysis to determine an "atmosphere of fear": (1) Evidence establishes fear in the mind of voters; (2) that fear affected their votes; and (3) that had it not been for the fear, the results of the election might have been different. 272 F.2d at 473.

In its evaluation, the Board found that the remarks did not rise to the level of threats. Likewise, the Board argues that the remarks did not create an atmosphere of coercion and fear requiring a reversal.

The Board has a wide degree of discretion in conducting elections and resolving representation matters. NLRB v. A. J. Tower Co., 329 U.S. 324, 330-31, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); NLRB v. Osborne Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir. 1979). In a challenge to a Board decision in this area, the burden is on the objecting party to prove by specific evidence that the election results did not accurately reflect the unimpeded choice of the employees. NLRB v. White Knight Mfg., 474 F.2d 1064, 1067 (5th Cir. 1973); NLRB v. Golden Age Beverage Co., 415 F.2d 26, 29 (5th Cir. 1969). Our review of the record indicates that the Company did not meet this burden. Anonymous threats must be carefully weighed. 415 F.2d at 30. Only when such threats result in creating an atmosphere among voting employees of confusion and fear of reprisal should the election be overturned. 415 F.2d at 30. To do otherwise would merely encourage anonymously created incidents. NLRB v. Monroe Auto Equipment, 470 F.2d 1329, 1332 (5th Cir. 1972).

It was determined that the "stranger" was neither an agent of the Union nor the Company. Kitchen was merely a customer who advocated a pro-union position. The Board determined that in the absence of specific threats, it could not conclude that the electoral process had been prejudiced by a coercive atmosphere. The Company has not met its burden demonstrating this conclusion was error. ⁵

III. BALLOT CHALLENGE

The Company next challenges a ballot which contain pencil marks in both the "Yes" and "No" boxes. The Company argues that the ballot should be disqualified because it fails to evidence the clear intent of the voter.

The Board, on the other hand, contends that the ballot...