N.L.R.B. v. Howard Johnson Motor Lodge

• Decision Date: 22 April 1983
• Docket Number: No. 82-1141,82-1141
• Citation: 705 F.2d 932
• Parties: 113 L.R.R.M. (BNA) 2264, 97 Lab.Cas. P 10,066 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWARD JOHNSON MOTOR LODGE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 932

705 F.2d 932

113 L.R.R.M. (BNA) 2264, 97 Lab.Cas. P 10,066

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWARD JOHNSON MOTOR LODGE, Respondent.

No. 82-1141.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1982.

Decided April 22, 1983.

Barbara A. Atkins, Counsel for NLRB, Elliott Moore, NLRB, Washington, D.C., for petitioner.

Lawrence C. DiNardo, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for respondent.

Before ESCHBACH and POSNER, Circuit Judges, and GRANT, Senior District Judge. ^*

ESCHBACH, Circuit Judge.

This case presents the issue whether procedural requirements were satisfied when the National Labor Relations Board ("Board") certified a union as the exclusive bargaining representative of a group of employees at a Howard Johnson Motor Lodge ("Company"). We hold that the Board erred in not ordering a hearing to address the Company's objections to the representation election. We decline, therefore, to enforce the Board's bargaining order and we remand the case for an evidentiary hearing.

I. BACKGROUND

On November 10, 1980, Chauffeurs, Teamsters and Helpers, Local Union 364 ("Union") petitioned the Board to hold a representation election at the Howard Johnson Motor Lodge in South Bend, Indiana. After a hearing was held, the Board's Regional Director issued a decision asserting that the Board has jurisdiction over the Company and ordering that an election be conducted. An election was held on January 9, 1981, and the Union received a majority of the votes cast.

On January 16, 1981, the Company filed with the Regional Director objections to the representation election. The Company alleged, among other things, that employees who voted in the election were coerced and intimidated by the pro-union statements and conduct of the motor lodge's head housekeeper, Sandra Paquin. In support of its allegations, the Company submitted the affidavit of William Collins, the lodge's manager.

The Regional Director conducted an ex parte investigation into the merits of the Company's allegations. On February 20, 1981, he issued his decision overruling the Company's objections and certifying the Union as the exclusive bargaining representative of employees at the motor lodge. The Company petitioned the Board to review the Regional Director's decision and, at least, to order a hearing to be held on the Company's allegations. The Company's petition was summarily denied on the ground that no substantial issue warranting review was raised.

To obtain judicial review of the Board's decision, the Company refused to bargain with the Union. The Union subsequently filed an unfair labor practice charge alleging violations of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, see 29 U.S.C. Secs. 158(a)(1) and (5). On September 30, 1981, the Board issued its decision finding violations of these sections and ordering the Company to bargain with the Union. See 258 NLRB No. 73 (1981). The Board now requests this court to enforce its order.

II. THE REQUIREMENT OF A HEARING

When a party challenging a representation election files objections raising substantial issues of fact, an evidentiary hearing must be held. See Louis-Allis Company v. NLRB, 463 F.2d 512, 520 (7th Cir.1972); accord NLRB v. Advanced Systems, Inc., 681 F.2d 570, 572 (9th Cir.1982); Kusan Manufacturing Company v. NLRB, 673 F.2d 150, 152 (6th Cir.1982); Season-All Industries v. NLRB, 654 F.2d 932, 938 (3rd Cir.1981). In other words, the Board may not rely on an ex parte investigation to rebut substantial allegations that, if true, might warrant setting aside the election. See NLRB v. Belcor, Inc., 652 F.2d 856, 859 (9th Cir.1981); NLRB v. Claxton Manufacturing Company, 613 F.2d 1364, 1366 (5th Cir.1980). This well-settled principle is founded on both the Due Process clause and the Board's own rules of procedure. ¹ See NLRB v. Bristol Springs Manufacturing Company, 579 F.2d 704, 707 (2d Cir.1978).

Whether a factual allegation may be termed "substantial" depends, in large part, on the Board's substantive rules governing representation elections. For instance, if a party alleges that a union representative misrepresented the virtues of collective bargaining, that allegation is substantial only if such misrepresentations may warrant setting aside the election. In this case, therefore, the Company's allegations that a supervisor, Sandra Paquin, coerced employees to vote for the Union are substantial only if the Board has indicated that this type of coercive conduct may invalidate an election.

The Board has repeatedly expressed serious concern about the pro-union conduct and statements of supervisors. Although the mere participation of a supervisor in the organizational campaign of a union will not warrant setting an election aside, elections may be invalidated in two possible situations: first, when employees are led to believe, because of the supervisor's activities, that the employer favors the union; and second, when employees may be coerced into supporting the union out of fear of future retaliation by the pro-union supervisor. See Bally's Park Place, Inc., 265 N.L.R.B. No. 98 (1982); The Catholic Medical Center of Brooklyn and Queens, 245 N.L.R.B. 808, 810 (1979); Central Casket Company, 225 N.L.R.B. 362, 400 (1976); Turner's Express, Inc., 189 N.L.R.B. 106, 107 (1971); accord NLRB v. Wehrenberg Theatres, Inc., 690 F.2d 159, 162 (8th Cir.1982); ITT Lighting Fixtures, Inc., 658 F.2d 934, 937 (2d Cir.1981); Fall River Savings Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.1981).

The Board has not expressed an intention in this case to modify the rules governing the pro-union conduct of supervisors. Indeed the Regional Director stated in his decision that the Company's objection would be honored if Sandra Paquin's activities might have "cause[d] employees to want to avoid the displeasure of [Sandra Paquin] in the event of a union defeat."

Judged in light of the Board's own rule, we hold that the Company's objection, based on allegations of Sandra Paquin's conduct, did raise a substantial issue of fact warranting an evidentiary hearing. Relying on the affidavit of the lodge's manager and the transcript of the hearing held prior to the representation election, the Company made the following allegations. Sandra Paquin attended an organizational meeting at a union hall where she signed, as did other employees, a union authorization card. During the organizational campaign, Sandra Paquin distributed union buttons to employees to wear while working. The pro-union activities became explicitly coercive when, according to the lodge manager's affidavit Sandra Paquin told an employee that "she was going to be one of the first ones to go if the Union got in." ² Although this alleged threat was directed to a single employee, the words employed reveal an intent to mete out reprisals to several employees.

Moreover, it appears that supervisor Paquin possessed the authority to support any threats with action. As the head housekeeper, she assigned work to the housekeepers, granted leaves of absence, and was the sole evaluator of the housekeepers' work. To be sure, Sandra Paquin was dismissed by the Company before the election was held. According to the lodge manager's affidavit, however, Sandra Paquin told the other housekeepers that "she was going to get her job back with full back pay." ³ In light of this statement, employees could have reasonably believed that they would be subject to supervisor Paquin's displeasure if the Union failed to win the election.

In Flint Motor Inn Company, 194 N.L.R.B. 733 (1971), the Board set aside an election because of a supervisor's conduct that was not as coercive as the alleged conduct in this case. The employer in Flint Motor Inn Company objected to a representation election because of the activities of the hotel's chef, Mr. Gibbons. The Board, in setting the election aside, held:

While the record does not show Gibbons gave any indication to employees that he would use his authority as supervisor to punish those who failed to support the Union, we believe, given Gibbons' considerable supervisory authority and his active and outspoken support of the Union throughout the...