Molded Acoustical Products, Inc. v. N.L.R.B.
| Decision Date | 04 May 1987 |
| Docket Number | Nos. 86-3468,No. 86-3468,R,No. 86-3561,86-3561,86-3468,s. 86-3468 |
| Parties | 125 L.R.R.M. (BNA) 2024, 55 USLW 2598, 106 Lab.Cas. P 12,321 MOLDED ACOUSTICAL PRODUCTS, INC., Petitioner inespondent in, v. NATIONAL LABOR RELATIONS BOARD and Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor. |
| Court | U.S. Court of Appeals — Third Circuit |
Edward H. Feege (argued), Thomas L. Heimbach, Duane, Morris & Heckscher, Allentown, Pa., for Molded Acoustical Products, Inc.
Paul J. Spielberg, Deputy Asst. Gen. Counsel, Mark S. McCarty (argued), Atty., N.L.R.B., Washington, D.C., Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, for N.L.R.B.
Stephen C. Richman, William T. Josem (argued), Markowitz & Richman, Philadelphia, Pa., for intervenor.
Before GIBBONS, Chief Judge, and SEITZ and GARTH, Circuit Judges.
The National Labor Relations Board (the Board) petitions for enforcement of its order holding that the refusal of the petitioner, Molded Acoustical, Inc. (the Company), to bargain with the respondent, Local 773, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America (the Union), violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. Secs. 158(a)(1), (5) (1982). In challenging the Board's order, the Company contends: 1) that the election which led to the Union's certification was tainted by a Union promise to waive all initiation fees if the Company's employees elected the Union as their bargaining representative; 2) that the Board improperly refused to conduct an evidentiary hearing to determine the effect that the Union's waiver had on eligible voters; and 3) that the relocation of Company operations subsequent to the election in question constituted changed circumstances sufficient to obviate any obligation to bargain with the Union. Because we find no merit in these contentions, we will enforce the Board's order in its entirety.
On October 26, 1983, the Union filed a petition with the Board, pursuant to section 9 of the NLRA, 29 U.S.C. Sec. 159 (1982), seeking to represent certain employees of the Company. The Company and the Union entered into an election agreement on November 14, 1983, which was approved by the Regional Director of the Board on the next day. The Company and the Union further agreed that the election would be held in the following bargaining unit:
All full-time and regular part-time production and maintenance employees at the [Company's] Main Street facility, but excluding all other employees, including office and plant clerical employees, professional employees, lead men, confidential employees, guards and supervisors, as defined in the [NLRA].
The election was eventually held on December 30, 1983. At the election, 60 votes were cast in favor of and 55 against union representation.
Eleven days before the election, the Union sent a letter to the employees in the proposed bargaining unit. In that letter the Union urged these employees to vote for Union representation. In addition, in a postscript, the Union stated:
All employees in the bargaining unit will not have to pay the $50.00 Initiation Fee if they vote for the Teamsters to represent them. Also dues will not be payable until there is a signed contract!
After the election, the Company filed objections to it on the ground that the quoted postscript violated the United States Supreme Court's decision in NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). Specifically, the Company contended that this postscript presented an improper inducement for employees to vote for union representation and that it effectively undercut their free choice. The Regional Director, however, rejected the Company's objections. While recognizing that Savair prohibits a union from limiting an offer to waive initiation fees solely to those employees who sign union authorization cards before a certification election, the Regional Director opined that this offer to waive fees was clearly not so limited. Accordingly, the Regional Director upheld the validity of the election.
The Company filed exceptions to the Regional Director's report and requested that the Board either order a new election or hold a hearing for the purpose of taking testimony to resolve disputed factual issues. On December 10, 1984, the Board issued a "Decision and Certification of Representative" adopting the Regional Director's findings and recommendations. In that decision, the Board stated that the Company's interpretation of the challenged postscript--i.e., that only those employees that voted for the Union would qualify for the waiver of initiation fees--was "unreasonable in light of the Board's fully publicized secret-ballot procedure." Molded Acoustical Products, Inc., 273 NLRB 156, 156 n. 1 (1984).
After the Board certified the Union, the Company refused to bargain. The Company based its refusal to bargain in part on the movement of its operations from Easton, Pennsylvania to Palmer Township, Pennsylvania--a distance of seven miles. The Company contended that this move led to employee turnover and substantial changes in operations which required reexamination of the Union's status as the employees' legitimate bargaining representative. 1 Although it was first proposed before the Union election of 1983, the Company's movement of operations was completed after the Union had been certified. 2 The Company also based its refusal to bargain on the contention that the Board had improperly declined to order a new election in spite of the Company's previous objections.
On May 6, 1985, a hearing concerning the Company's refusal to bargain with the Union was held before an Administrative Law Judge. The Administrative Law Judge held that the Company's refusal to bargain violated sections 8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. Secs. 158(a)(1), 158(a) (5). In so deciding, the Administrative Law Judge determined that the basic operation at the Company's old and new plants remained unchanged and that no unusual circumstances justified its refusal to bargain. Furthermore, he declined to consider the waiver of initiation fee issue inasmuch as that issue had previously been determined in the representation proceedings.
On July 31, 1986, the Board issued a decision adopting the recommended order of the Administrative Law Judge in all respects. The Company's petition to review and the Board's cross-application for enforcement were then filed with this court.
The primary issue to be determined is whether the Union's pre-election letter, promising to waive initiation fees if employees opted for Union representation, is an inducement to vote for the Union which violated NLRA sections 8(a)(1) and 8(a)(5), 29 U.S.C. Secs. 158(a)(1), 158(a) (5). The Board determined that this promise by the Union did not so taint the first election as to warrant a second vote. As the reviewing court, we will only reverse the Board's holding if it is not supported by substantial evidence on the record. Black Grievance Committee v. NLRB, 749 F.2d 1072, 1074 (3d Cir.1984), cert. denied, 472 U.S. 1008, 105 S.Ct. 2703-04, 86 L.Ed.2d 719 (1985); NLRB v. L. & J. Equipment Company, Inc., 745 F.2d 224, 231 (3d Cir.1984); Medical Center of Beaver County, Inc. v. NLRB, 716 F.2d 995, 997 (3d Cir.1983). More specifically, we must respect the Board's decision in this matter unless "the manner in which the election was held raises a reasonable doubt as to its validity." NLRB v. ARA Services, Inc., 717 F.2d 57, 68 (3d Cir.1983) (en banc) (citing Polymers, Inc., 174 NLRB 282, 283 (1969)).
In Savair, 414 U.S. 270, 94 S.Ct. 495 (1973), the Supreme Court concluded that a union's offer to waive initiation fees only for those employees who signed union recognition slips prior to a representation election was improper. The Court so decided because such an offer is likely to interfere with employee free choice in two ways. First, by enabling the union to "buy endorsements" from employees, this offer would permit the union to "paint a false portrait of employee support during its election campaign." Id. at 277, 94 S.Ct. at 499. Second, although the submission of a union recognition slip does not bind an employee to vote for the union, at least some employees who had improperly been persuaded to sign the slips might feel obligated "to carry through on their stated intention to support the union." Id. at 277-78, 94 S.Ct. at 499. The Savair majority did indicate, however, that a union has a legitimate interest in waiving its new member initiation fee, and that it may do so as long as the waiver applies "not only to those who have signed up with the union before an election but also to those who join after the election." Id. at 274 n. 4, 94 S.Ct. at 497 n. 4.
Following the Savair guidelines, courts have consistently ruled that a union does not endanger employees' freedom of choice if, prior to the representation election, the union promises to waive initiation fees for all employees in the bargaining unit regardless of whether the employees signed union recognition slips prior to election. See, e.g., NLRB v. First Union Management, Inc., 777 F.2d 330, 335 (6th Cir.1985); Bokum Resources Corp. v. NLRB, 655 F.2d 1021, 1024 (10th Cir.1981); Vicksburg Hospital, Inc. v. NLRB, 653 F.2d 1070, 1076 (5th Cir.1981); NLRB v. Whitney Museum of American Art, 636 F.2d 19, 21 (2d Cir.1980); NLRB v. Target Stores, Inc., 547 F.2d 421, 424 (8th Cir.1977). In all of these cases, the key to the validity of the union's promise to waive initiation fees was that it was made to all employees without concern for whether they supported the union during...
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