Home Town Foods, Inc. v. NLRB
Decision Date | 01 October 1969 |
Docket Number | No. 26487.,26487. |
Citation | 416 F.2d 392 |
Parties | HOME TOWN FOODS, INC., d/b/a Foremost Dairies of the South, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. |
Court | U.S. Court of Appeals — Fifth Circuit |
William F. Ford, John Bacheller, Jr., William W. Alexander, Jr., Fisher & Phillips, Atlanta, Ga., for petitioner-cross-respondent.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Walter C. Phillips, Director, 10th Region, Atlanta, Ga., Glen M. Bendixsen, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Ian D. Lanoff, Atty., N. L.R.B., for respondent-cross-petitioner.
Before RIVES, BELL and DYER, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied October 1, 1969.
This representation election "test case"1 is before us for the second time. See Home Town Foods, Inc. v. NLRB, 5 Cir. 1967, 379 F.2d 241, denying enforcement and remanding for an evidentiary hearing 160 NLRB 8 (1966). Home Town Foods petitions this Court to review and to set aside the Supplemental Decision and Order of the NLRB, 172 NLRB No. 126 (1968); the Board cross-petitions for enforcement. NLRA § 10(e), (f), 29 U.S.C. § 160(e), (f).2
Our scope of review is limited to ascertaining whether there is substantial evidence on the record considered as a whole to support the Board's decision and order. 29 U.S.C. § 160(e) and (f). Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; NLRB v. Houston Chronicle Publishing Co., 5 Cir. 1962, 300 F.2d 273.3 While we also recognize that the Board has broad discretion in adopting procedures to govern the election process, we find no conflict between the breadth of discretion afforded the Board in its promulgation of procedures and the substantial evidence rules used by the courts to review applications of those procedures.
Celanese Corporation of America v. NLRB, 7 Cir.1961, 291 F.2d 224 at 225. Accord, NLRB v. Bata Shoe Company, 4 Cir. 1967, 377 F.2d 821, 827. Compare Independent, Inc. v. NLRB, 5 Cir.1969, 406 F.2d 203. Finally, we note that this Court must review, on an ad hoc basis, the fairness of the Board's application of its chosen standard. Applying this standard of review to the supplemental decision and order now before us, we conclude that the Board has misapplied its orthodox "laboratory conditions" standard for evaluating the fairness of election campaign conduct and has thereby denied the production and maintenance unit employees of the Company's Sylacauga plant the requisite "free and untrammeled choice for or against a bargaining representative." General Shoe Corp., 1948, 77 NLRB 124, 127. Cf. LMRA §§ 7, 9(a) and 9(c) (1), 29 U.S.C. §§ 157, 159(a), and 159(c) (1). We deny enforcement.4
A former counsel to NLRB member Jenkins has written that:
Funke, Board Regulation of Pre-Election Conduct, 36 Tex.L.Rev. 893, 895 (1958). Congress has vested in the Board the authority to investigate and resolve objections to election conduct. LMRA § 9, 29 U.S.C. § 159. The Board has adopted appropriate evaluation procedures. 29 C.F.R. § 102.69. See generally 2 CCH Lab.Law Rep. ¶¶ 2701, 2790, 2791, 2792. The Board has recently acknowledged that it must "closely guard the integrity of its elections so that employees may exercise the freedom of choice contemplated by the Act and thereby have a full opportunity to enjoy its other benefits." Oak Mfg. Co., 1963, 141 NLRB 1323, 1324.
In General Shoe Corp., supra at 127, the Board established its landmark standard for evaluating election campaign conduct:
The "laboratory conditions" test represents an ideal atmosphere in which a free choice may be made by employees, protected from interference by employer,5 union,6 Board agent,7 or other parties.8 As to any conduct objected to as interference, the critical Board determination is whether the employees were permitted to register a free choice. Cf. NLRB v. Southland Paint Co., 5 Cir. 1968, 394 F.2d 717, 727, and the case from which it quotes, NLRB v. Lake Butler Apparel Co., 5 Cir. 1968, 392 F. 2d 76, 82 ()9
In our original consideration of this case, we noted that the alleged pre-election and election day misconduct,10 if proven, left no doubt that the election should have been set aside on the basis of deterioration of the requisite "laboratory conditions." 379 F.2d at 244. See Electra Mfg. Co. v. NLRB, 5 Cir. 1969, 408 F.2d 570; Neuhoff Bros. Packers, Inc. v. NLRB, 5 Cir. 1966, 362 F.2d 611, cert. denied 386 U.S. 956, 87 S.Ct. 1027, 18 L.Ed.2d 106; NLRB v. Houston Chronicle Pub. Co., 5 Cir. 1962, 300 F.2d 273.
Moreover, we remanded with instructions that (1) the conduct to which the Company objected must be considered cumulatively rather than as isolated individual incidents; (2) while an objective evaluation is normally the basis for determination whether interference occurred sufficient to require setting aside an election, "subjective evidence of fear and coercion, however, may carry the day as well," 379 F.2d at 244 (emphasis added); and finally (3) all coercive acts need not be shown to be attributable to the union, rather than rank-and-file supporters.
Nine witnesses testified on behalf of the Company, and in varying degrees substantiated the validity of every objection but one11 made by the Company. Three witnesses testified on behalf of general counsel: one, a challenged voter who stood in front of the voting booth during the election, merely stated that he could not see into the booth so as to determine how any voter cast his ballot;12 the other two were concerned only with absolving the union organizer from any election day misconduct in the area of the polling place. The Company's prima facie case of pre-election threats, sabotage, rumors, and of election day irregularities was largely uncontroverted by General Counsel.
The Trial Examiner, however, concluded that:
"It cannot be said that in this case the conduct * * * during the election campaign period was of such an aggravated character as to create a general atmosphere of fear and reprisal rendering a free expression of choice of representatives impossible."
To reach this conclusion on the evidence presented necessitated (1) that the Trial Examiner eliminate from consideration part of the threats and all of the rumors, as well as the supervisor participation, by ruling that the Company failed to show such events occurred during the critical campaign period; (2) that he discount the various election day events, considering each in isolation, as resulting in "baseless fear"; and (3) that he discredit the testimony of one employee found by the Board to have been threatened on three separate occasions, and thereby find that there was no evidence to establish that fear actually affected any vote.
The Board adopted, with substantial modifications,13 the findings, conclusions and recommendations of the Trial Examiner. Notwithstanding its findings, the Board concluded that there was no basis for setting aside the election. The rationale underlying the determination was straight-forward:
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