N.L.R.B. v. Dickinson Press, Inc.

• Decision Date: 09 June 1998
• Docket Number: I,AFL-CI,Nos. 97-5626,97-5673,s. 97-5626
• Parties: 158 L.R.R.M. (BNA) 2832, 158 L.R.R.M. (BNA) 3096, 135 Lab.Cas. P 10,215 NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent, Local 550-M Graphic Communications International Union,ntervenor, v. DICKINSON PRESS, INC., Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 282

153 F.3d 282

158 L.R.R.M. (BNA) 2832, 158 L.R.R.M. (BNA) 3096,

135 Lab.Cas. P 10,215

NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent Local 550-M Graphic Communications International Union AFL-CIO, Intervenor, v. DICKINSON PRESS, INC., Respondent/Cross-Petitioner.

Nos. 97-5626, 97-5673.

United States Court of Appeals, Sixth Circuit.

Argued April 29, 1998.

Decided June 9, 1998. ^*

Ordered Published Aug. 5, 1998.

Fred L. Cornnell, Jr. (briefed), National Labor Relations Board, Office of the General Counsel, Washington, DC, Aileen A. Armstrong, Deputy Associate General Counsel (briefed), John D. Burgoyne, Acting Deputy Associate General Counsel, Ana Avendano (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Petitioner/Cross-Respondent.

Thomas D. Allison, Allison, Slutsky & Kennedy, Chicago, IL, for Intervenor.

David E. Khorey (argued and briefed), Varnum, Riddering, Schmidt & Howlett, Grand Rapids, MI, for Respondent/Cross-Petitioner.

Before: KENNEDY, CONTIE, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

The National Labor Relations Board (the "Board") seeks enforcement of its order to bargain against Dickinson Press, Inc. ("Dickinson"), which has cross-petitioned for review of that order. In February of 1996, Dickinson's employees re-elected Local 550-M Graphics Communications International Union, AFL-CIO (the "Union") as its collective bargaining representative. Dickinson raises numerous objections to that election based on alleged misconduct by the Union, its representatives, and a third party. Because substantial evidence supports the Board's conclusion that the incidents of misconduct did not interfere with the employees' free and uncoerced choice of union representation, we will enforce the Board's order.

I

Dickinson is engaged in the commercial printing of bibles and other religious books, as well as some children's materials. The Union was first certified as the employees' collective bargaining representative in September of 1994. Following an employee petition to decertify the Union, a decertification election was held on October 18, 1995. Twenty-three employees voted against the Union, twenty-one employees voted in favor of the Union, with two challenged ballots. On February 6, 1996, however, the Board ordered a second election after sustaining the Union's sole objection, which alleged that Dickinson had improperly promised employees a wage increase if the Union lost the October 18, 1995 election. Supp. J.A. at 8-11. A second decertification election was held on February 28, 1996, at which time twenty-four employees voted for the Union, with twenty votes against and three challenged ballots.

Dickinson filed nine objections to the February decertification election. After conducting a hearing on seven of the objections, the hearing officer recommended that all seven objections be overruled and that the Board certify the Union as the employees' exclusive bargaining representative. J.A. at 23-30. On November 8, 1996, the Board adopted the hearing officer's recommendations. J.A. at 83-85. After the company refused to recognize and bargain with the Union, the Board found Dickinson in violation of §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5), and on March 14, 1997 ordered Dickinson to bargain with the Union. Supp. J.A. at 2. Dickinson refused to obey the Board's order, and the Board sought enforcement of its order; Dickinson filed a petition for review of the Board's order.

II

Although the Board strives to maintain "laboratory conditions" during representation elections, such conditions are rare, "and elections are not automatically voided whenever they fall short of perfection." NLRB v. Duriron Co., 978 F.2d 254, 256 (6th Cir.1992). Rather, the Board has broad discretion in determining whether election conditions allowed for the fair and free choice of bargaining representatives by employees. See id. at 256-57. The courts must respect the Board's legal interpretations if reasonable. See Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-99, 116 S.Ct 1396, 134 L.Ed.2d 593 (1996); see also NLRB v. Americare-New Lexington Health Care Ctr., 124 F.3d 753, 756 (6th Cir.1997); NLRB v. Webcor Packaging, Inc., 118 F.3d 1115, 1119 (6th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1035, 140 L.Ed.2d 102 (1998). The Board's findings with respect to whether an election reflected "the fair and free choice" of the employees "will not be disturbed on appeal where there is substantial evidence in the record as a whole to support its conclusions." Mitchellace, Inc. v. NLRB, 90 F.3d 1150, 1155 (6th Cir.1996); see also Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir.1989). The party seeking to overturn an election bears the burden of showing "not only that unlawful acts occurred, but also that they interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." Kux, 890 F.2d at 808 (quotation omitted).

A

Dickinson alleges that Cherry Vassar, the chief union steward and thus a Union agent, purchased a winter jacket and other items of value for employee Jim Dewey in order to persuade Dewey to vote in favor of the Union in the February 28, 1996 election. Dewey, who did not vote in the earlier October 18, 1995 election, was viewed as an undecided voter by several employees. J.A. at 162; 168.

Vassar and Dewey became friends shortly after Dewey began working at Dickinson when they discovered they shared common religious beliefs. J.A. at 206 (Vassar Test.); 269 (Dewey Test.). Their friendship extended beyond the workplace, and they frequently socialized outside the workplace. J.A. 205-07 (Vassar Test.); 269-70 (Dewey Test.). In early November of 1995, Vassar learned that Dewey did not have a winter jacket, that he could not afford a jacket, and that he would soon be visiting relatives to the north where the weather was likely to be especially cold. J.A. 208-10 (Vassar Test.). She soon thereafter gave to Dewey a winter jacket of approximately $39 in value as a gift. J.A. at 208-10 (Vassar Test.); 271-72 (Dewey Test.). When giving Dewey the jacket, she did not say anything about the Union. J.A. at 208-10 (Vassar Test.); 272 (Dewey Test.). At this time, the Board had not yet ordered a hearing on the Union's objection to the October 18, 1995 decertification election, let alone recommended a second decertification election.

Vassar also acted generously toward Dewey, as well as other Dickinson employees, on other occasions. In late January of 1996, Vassar prepared Dewey's taxes for free. J.A at 164-65. Vassar testified that she had previously prepared other employees' tax returns for free or for a minimal fee, and has been doing so for several years. J.A. at 232-34 (Vassar Test.). In addition to assisting employees with their tax returns, Vassar, who bakes and sells cakes on a professional basis, has offered her co-workers free cakes or cakes at a substantial discount, which she began doing prior to becoming union steward. J.A. at 157 (Reames Test.); 213, 219-29 (Vassar Test.). On Valentine's Day, two weeks prior to the February decertification election, Vassar baked a cake for Dewey and several other Dickinson employees, including employees not eligible to vote in the decertification election. J.A. at 154 (Reames Test.); 259 (Vassar Test.). Finally, Vassar frequently paid for Dewey's meals or movies when they socialized outside of work, J.A. at 234 (Vassar Test.), as well as the breakfasts and lunches of other employees, something the employees do "for each other." J.A. at 230-31 (Vassar Test.). Subsequent to the February election, Vassar has continued to pay for other employees' meals, including Dewey's. J.A. at 230-31, 234 (Vassar Test.).

An election will be set aside on the basis of misconduct by a union or one of its agents only where the misconduct of the Union or its agent " 'reasonably tend[s] to interfere with the employees' free and uncoerced choice in the election.' " See NLRB v. Superior Coatings, Inc., 839 F.2d 1178, 1180 (6th Cir.1988) (quoting Baja's Place, Inc. v. Hotel, Motel, Restaurant Employees Local 24, 268 NLRB 868, 1984 WL 36040, * 2 (N.L.R.B. Feb. 13, 1984)); see also Dayton Hudson Dep't Store Co. v. NLRB, 79 F.3d 546, 550 (6th Cir.1996), cert. denied, 519 U.S. 819, 117 S.Ct. 73, 136 L.Ed.2d 33 (1996). Discrediting the subjective views of several employees who testified that they were aware of Vassar's acts of generosity toward Dewey and that they viewed such acts as an attempt to persuade Dewey to vote in support of the Union, the hearing officer concluded that Dickinson failed to demonstrate that Vassar's actions reasonably tended to interfere with the employees' free choice. J.A. at 26 (Hr'g Officer's R & R at 4). Dickinson argues that the hearing officer erred in discrediting the subjective views of its witnesses and should have considered their views "presumptively reasonable and 'objective.' " Resp't/Cross-Appellant's Br. at 18. In evaluating whether alleged misconduct tended to interfere with employees' free choice, the Board applies an objective test. See Sunrise Rehabilitation Hosp., 320 N.L.R.B. 212, 212, 1995 WL 791954, * 2 (Dec. 19, 1995). Accord Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 907 (6th Cir.1997). The subjective reactions of employees, like the subjective intent of the alleged wrongdoer, are not dispositive. See NLRB v. Wis-Pak Foods, Inc., 125 F.3d 518, 524 (7th Cir.1997); see also Torbitt, 123 F.3d at 907 (stating that an employee's subjective reaction does not render the challenged conduct unlawful). "When these subjective reactions are solicited by [a party] and are expressed long after the election, as they were here, they are not likely to command persuasive respect." Bridgeport Fittings, Inc. v. NLRB, 877 F.2d 180, 185 (2d Cir.1989); see also Harlan No. 4 Coal Co. v. NLRB, 490 F.2d...