N.L.R.B. v. Georgetown Dress Corp., 75-1523

Decision Date12 July 1976
Docket NumberNo. 75-1523,75-1523
Citation537 F.2d 1239,92 LRRM 3282
Parties92 L.R.R.M. (BNA) 3282, 79 Lab.Cas. P 11,519 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GEORGETOWN DRESS CORPORATION, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

Thomas A. Woodley, Washington, D.C. (John H. Ferguson, John C. Miller, Acting Gen. Counsel, John S. Irving Jr., Deputy Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., on brief), for petitioner.

Warren M. Davison, Washington, D.C. (Earle K. Shawe, Leslie R. Stellman, Shawe & Rosenthal, Baltimore, Md., on brief), for respondent.

Before WINTER, RUSSELL and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

The Board's petition to enforce its bargaining order, based upon its finding that Georgetown Dress Corporation (Georgetown) violated §§ 8(a)(5) and (1) of the Act by refusing to bargain, raises the principal question of the validity of a representation election, held February 15, 1973. In that election, the union prevailed by a vote of 184 to 105; and, after Georgetown's objections to the validity of the election were overruled, the union was certified as the bargaining representative. Georgetown concedes its refusal to bargain but maintains that the order should not be enforced because (a) substantial evidence was lacking to support the Board's conclusion that when Georgetown sought to have the election voided, it failed to prove that the union, its agents, officers and representatives had created an atmosphere of fear and coercion which made a fair election impossible, (b) the administrative law judge and the Board improperly declined to receive admissible subjective evidence of threats of reactions to economic reprisal made by union agents against employees who were eligible to vote in the election, and (c) the Board improperly voided a prior election which, if valid, would have prevented the February 15, 1973 election from being held.

We decline to enforce the order because we think the record contains substantial evidence of specific coercion practiced by the union, its agents, officers and representatives, in a generally coercive atmosphere. Thus, the Board's finding that there was a fair election cannot stand. 1 In view of this conclusion, we find it unnecessary to consider the evidentiary rulings of the Board and the administrative law judge.

I.

The February 15, 1973 election was preceded by an election held August 24, 1971, which the union lost by a vote of 153 to 83. On a complaint of the union, the earlier election was ultimately voided because of the Board's finding that Georgetown violated § 8(a)(1) of the Act by interrogation of employees, a supervisor's harassment of an employee, and certain speeches to employees made by Georgetown's assistant plant manager in the weeks preceding the election. Although Georgetown seeks now to contest the correctness of this adjudication, we think that substantial evidence supported the Board's conclusions and that it was proper for the Board to set this election aside. Thus, the holding of the August 24, 1971 election was no impediment to the holding of the February 15, 1973 election.

II.

Before us, the validity of the February 15, 1973 election turns primarily on the question of whether the members of the In-Plant Organizing Committee (hereafter the "committee") were agents of the union or whether they were mere adherents to the union cause. The question is crucial because the record reflects substantial pro-union coercion which, if attributable to the union, unquestionably destroyed the "laboratory conditions" under which the election should have been conducted and unquestionably stifled the free exchange of ideas on unionization among the employees. We need not recite all of the evidence; a few examples of the misconduct which the administrative law judge found had been committed by members of the committee will suffice.

Prior to a company-arranged meeting, Louis Herman produced a long knife in front of other employees and threatened violence at the meeting. He also told an employee that if employees did not support the union they might find sugar in their gas tanks. Lou Lambert threatened an employee that she would lose her job if she failed to support the union. 2 Gertrude Hudson promised employees higher wages and better benefits for all if the union were victorious and threatened that the best jobs would go to union supporters. 3 Gertrude Hudson warned employees that notes were being kept on what they were saying about the union and that the notes would be turned over to the union. Indeed, she hovered around employees and took notes on what was said about the union; and she was present at the polls as a union election observer when employees were voting. Burnett Johnson 4 attended an assembly of approximately 300 employees who were hearing a company talk on the forthcoming election and interrupted the speaker, forcing a confrontation. When a company supervisor approached Johnson in order to request that he remain silent, statements were made that there would be bloodshed if Johnson were touched.

The campaign was also marred by other incidents which, although not attributable to the committee, contributed to an atmosphere which magnified the potential coercive effect of committee members' actions. Some employees were threatened with job loss; others were told that they would be beaten up if they crossed picket lines which could be set up in the event of a hypothetical strike by the union. The threat of placing sugar in their gas tank was made to others. An anonymous phone call was made to the wife of a vociferous anti-union employee threatening her husband's life; an anonymous note was attached to an employee's timecard threatening her with death; and graffiti was scrawled in the ladies' restroom threatening an anti-union employee with murder.

The impact of threats from identifiable and unidentifiable sources was exacerbated by the nature of the Georgetown plant itself. Georgetown is the principal employer in Georgetown, South Carolina, a small seacoast town where alternative or comparable places of employment are difficult if not impossible to find. Under such circumstances, employees would be prone to take any threat to their work situation very seriously. This heightened sensitivity is manifested by the workers' reactions to the series of incidents in this case; there was proof that attendance at the company-called meetings during the organizational campaign was very poor, and this constitutes some evidence that pro-union coercive acts and statements had their intended effect.

The administrative law judge ruled that under applicable legal standards the misconduct of members of the committee was not chargeable to the union. He went further and ruled that the improper conduct which had occurred "was not sufficiently substantial in nature to create a general environment of fear and reprisal such as to render a free choice of representative impossible." He added that "(t)he record reflects a feeling of tension among the employees which I believe is typical of a hard-fought campaign. It was the second campaign and feelings were strong, yet when one examines closely what happened one sees that in the final analysis nothing did happen." The latter statement implicitly reflects a misunderstanding of the applicable law. A union can be guilty of a violation of § 8(b)(1) on the basis of threats alone, without actual acts of physical violence or destruction of property, just as the statute and cases establish that an employer can be guilty of a violation of § 8(a)(1) without actual bloodshed or the destruction of property. A fortiori these principles apply in the context of a challenge to an election. Indeed, if laboratory conditions have been destroyed, an election can be set aside even if the alleged misconduct does not rise to the level of an unfair labor practice under the Labor Management Relations Act. NLRB v. Clearfield Cheese Co., 322 F.2d 89 (3 Cir. 1963).

However, in determining whether an election is to be set aside, less weight is to be accorded to conduct which is attributable to neither the employer nor the union, but rather to individual employees. Orleans Mfg. Co.,120 N.L.R.B. 630, 633 (1958); see Intertype Co. v. NLRB, 401 F.2d 41, 46 (4 Cir. 1968), cert. denied, 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969). We think that, in the context of this case, if the conduct of the members of the committee was attributable to the union, then the election cannot stand. We now turn to the question of whether such attribution is proper in this case.

III.

The administrative law judge found, with respect to the committee:

In conducting its organizational campaign, the Union relied not only on agents who are in its employ, but also on employees who were formed into an In-plant Organizing Committee. This committee had no formal structure, and membership was open to any employee willing to be known as a member of the committee and to work to enlist support for the Union. Committee members were not paid for any of their services which consisted of soliciting employees to sign authorization cards, to attend Union meetings, or to support and vote for the Union. This activity occurred at the plant, but committee members also visited the homes of fellow employees. (None of the alleged unlawful activity occurred on home visits.) Committee members received no expense payments from the Union for any of their...

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