N.L.R.B. v. Browning-Ferris Industries of Louisville, Inc.

Decision Date15 October 1986
Docket NumberBROWNING-FERRIS,No. 85-2964,85-2964
Citation803 F.2d 345
Parties123 L.R.R.M. (BNA) 2673, 105 Lab.Cas. P 12,092 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.INDUSTRIES OF LOUISVILLE, INC., d/b/a Indiana Home Sanitation, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Karen Ward, N.L.R.B., Washington, D.C., for petitioner.

Susan J. Piller, Browning-Ferris Industries, Inc., Houston, Tex., for respondent.

Before WOOD, COFFEY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

The National Labor Relations Board, pursuant to section 10(e) of the National Labor Relations Act, seeks enforcement of a bargaining order it issued against the respondent company. The Board issued the order after the company refused to bargain collectively with Teamsters Local 783, which had been certified by election as the employees' collective bargaining representative. The company contends that the union's certification was invalid because it allegedly engaged in improper conduct affecting the election. Our review of the Board's proceedings reveals that the Board's decision to overrule the company's objections to the election conduct was based on substantial evidence, and we therefore enforce the Board's order.

I.

Browning-Ferris Industries is engaged in the collection and disposal of solid wastes. The union sought to represent the company's drivers, and on August 10, 1984, the Board conducted an election among the drivers in response to the union's petition. The secret ballots revealed that of eighteen employees, ten voted in favor of the union's representation and eight voted against representation. The company filed objections to the following conduct that it claimed had improperly affected the results of the election:

1. Prior to the election and throughout the organizing campaign, the union improperly induced employees to vote for the union by threatening the physical well-being of employees and their families.

2. Prior to the election and throughout the organizing campaign, the union improperly induced employees to vote for the union by telling them that if they signed an authorization card prior to the election, all or part of the standard union initiation fee would be waived.

3. Immediately prior to the election, the union improperly induced and/or coerced employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act by engaging in misrepresentations of a material nature to which the company did not have an adequate opportunity to respond.

4. During the voting, employees were intimidated by the persistent presence in the voting area of a known union supporter who refused to leave the area.

5. By this and related conduct [participation of a supervisor in the election campaign], the union interfered with the election and the results of the election must be set aside.

The Board's Regional Director conducted an investigation of these objections and issued a report to the Board in September 1984. In his report, the Director concluded that the company's evidence was insufficient to warrant an evidentiary hearing or to invalidate the election, and he recommended to the Board that the company's objections be dismissed. The company then filed exceptions to the Director's report with regard to its first, fourth, and fifth objections, and made no exceptions to the Director's recommendation concerning the second and third objections. In November 1984 the Board adopted the findings and recommendations of the Director, dismissed the company's remaining three objections, and held that a certification of representative should issue. The company's continued refusal to bargain with the union resulted in a complaint in April 1985, and a three-member panel of the Board held that the refusal constituted a violation of sections 8(a)(5) and (1) of the NLRA. The Board then ordered the company to bargain with the union, and this enforcement proceeding followed.

II.

Our review of the Board's decision to certify a collective bargaining representative following an election is "extremely limited." NLRB v. Tom Wood Datsun, Inc., 767 F.2d 350, 352 (7th Cir.1985); see also, e.g., Mosey Manufacturing Co. v. NLRB, 701 F.2d 610, 614 (7th Cir.1983) (en banc). We will defer to the Board's selection of rules and policies to govern a particular election so long as those rules are reasonable, Tom Wood Datsun, 767 F.2d at 352, and we will review the application of those rules according to the "substantial evidence" standard. NLRB v. Affiliated Midwest Hospital, Inc., 789 F.2d 524, 527 (7th Cir.1986); Mosey, 701 F.2d at 615. Since we presume that the Board's decision was fair, the party challenging the decision bears the burden of demonstrating that the decision was not based on substantial evidence. Tom Wood Datsun, 767 F.2d at 352. In the context of a challenge to an election, the challenging party "must establish that there is not substantial evidence supporting the conclusion that any election irregularities or misconduct did not 'so impair the integrity of the ballot result that invalidation of the election is necessary.' " Affiliated Midwest Hospital, 789 F.2d at 528 (quoting NLRB v. Southern Health Corp., 514 F.2d 1121, 1123 (5th Cir.1975)). We will review each of the company's three objections to the election in order to determine whether it has demonstrated that the Board's decision to overrule those objections was not based on substantial evidence.

A. Threats. The Regional Director accepted as true the company's charge that two employees had been threatened by pro-union employees, but he found that the two incidents "did not create the type of fearful climate which the Board or the courts have found to be grounds for setting aside an election." The Director based his conclusion on several factors. One concerned the timing of the first threat, in which one employee allegedly warned another that he would "bust [the second employee's] head" for not voting in favor of the union. This threat occurred more than two months before the election and a month even before the union's petition for representation was filed. The Director noted that the threat had not been made during the "critical period" between the filing of the petition and the election, Ideal Electric and Manufacturing Co., 134 NLRB 1275 (1961), and therefore that it was unreasonable to assume that any atmosphere of coercion that may have arisen had carried forward to the election. The Director's conclusion in this regard was further buttressed by the fact that these same two employees continued to have a friendly relationship in the months leading up to the election, and that the threatening employee made no further coercive remarks.

The Director also relied on the fact that the second threat, uttered the day of the election, was "vague and subject to more than one interpretation." The incident involved two employees, one telling the other that he had "better vote for the union." The Director found that, while the statement could have been interpreted as a threat, it also could have meant that the employee would be benefited by union representation. The Director concluded therefore that the statement was "unlikely ... to affect the results of the election."

Other factors that contributed to the Director's conclusion included the fact that neither of the remarks could be attributed to the union or its agents and so were accorded "less weight," Tuf-Flex Glass v. NLRB, 715 F.2d 291, 296 (7th Cir.1983), and the fact that the remarks were isolated from each other and did not indicate a pattern of intimidation or an atmosphere of coercion. Finally, the Director pointed out that these statements were "unaccompanied by other threats or acts of violence" and therefore that they did not "rise to the level found objectionable in the cases cited by the employer."

We find that, based on all of these factors, the Director's decision and the Board's affirmance of that decision were based on substantial evidence. Moreover, the company failed in the administrative proceedings to carry its burden of producing specific evidence of "coercive conduct [that] so influenced potential voters that free choice was impossible," NLRB v. Chicago Marine Containers, Inc., 745 F.2d 493, 500 (7th Cir.1984), most particularly by failing to put into the record any evidence suggesting that other employees knew of the two threatening statements, or that a coercive atmosphere arose as a result of the statements. Since the evidence of threats that the company did put before the Director was accepted as true, we can only conclude that the company has not sufficiently demonstrated that the decision to overrule its first objection was unsupported by substantial evidence.

B. Presence of Union Supporter in Voting Area. NLRB policies prohibit electioneering, and the Board will set aside an election if a party demonstrates that there were "prolonged conversations between representatives of any party to the election and voters waiting to cast ballots." Milchem Inc., 170 NLRB 326 (1968); see also, e.g., L.C. Cassidy & Son, Inc. v. NLRB, 745 F.2d 1059, 1062 (7th Cir.1984). Moreover, once the challenging party has met this burden of proof, the Board will not inquire into the nature of the voting area conversations. L.C. Cassidy, 745 F.2d at 1062. The company here...

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    ...not object or raise the issue of an incomplete record during the Board's certification proceeding. In NLRB v. Browning-Ferris Industries of Louisville, Inc., 803 F.2d 345 (7th Cir.1986), we While we agree that the company may have been uncertain as to how it could file with the Board affida......
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