N.L.R.B. v. Superior Coatings, Inc.

• Decision Date: 18 February 1988
• Docket Number: No. 86-5587,86-5587
• Citation: 839 F.2d 1178
• Parties: 127 L.R.R.M. (BNA) 2737, 108 Lab.Cas. P 10,326 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR COATINGS, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1178

839 F.2d 1178

127 L.R.R.M. (BNA) 2737, 108 Lab.Cas. P 10,326

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPERIOR COATINGS, INC., Respondent.

No. 86-5587.

United States Court of Appeals Sixth Circuit.

Argued Dec. 18, 1986.

Decided Feb. 18, 1988.

Fred Cornell, argued, Aileen Armstrong, Deputy Associate General Counsel, N.L.R.B., Howard E. Perlstein, Washington, D.C., for petitioner.

Craig A. Mutch, argued, Grand Rapids, Mich., and J. Michael Guenther, Ann Arbor, Mich., for respondent.

Before MARTIN and GUY, Circuit Judges, and JOHNSTONE, District Judge. ^*

PER CURIAM.

This case is before us upon the application of the National Labor Relations Board (the Board), pursuant to section 10(e) of the National Labor Relations Act (the Act), as amended, 29 U.S.C. Sec. 160(e), for enforcement of its order against Superior Coatings, Inc. (the Company). The Board found that the Company violated section 8(a)(5) of the Act, 29 U.S.C. Sec. 158(a)(5), by refusing to bargain with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (the Union). The Company requests that the Board's application be denied and the bargaining order be set aside. The Company contends that the representation election was marred by threats and misrepresentations on the part of an employee who told certain co-workers that they would lose their jobs if the Union did not win the election. Upon review, we find substantial evidence in the record to support the findings of the Board, and grant the application for enforcement.

I.

On August 30, 1984, a union representation election was held by secret ballot for a particular unit of employees who worked for the Company. Thirteen votes were cast in favor of union representation, eight votes against, and one ballot was challenged. Thus, a switch of three votes would have resulted in the Union losing the election. The Company filed timely objections to the election results. The Company alleged that on the day of the election, a union representative falsely attributed to a member of management a threat to discharge certain named employees in the event that the Union lost the election. The Company argued that this statement created a general environment of fear and reprisal which prevented a free election. The Company also contended that the election was tainted because management did not have an adequate opportunity to respond to the alleged misrepresentations before the vote took place.

A hearing was conducted on September 26, 1984. On December 5, 1984, the hearing officer issued a report and recommendation in which he recommended that the Company's objections be overruled and that the Union be certified. With respect to the Company's specific allegations of misconduct, the hearing officer found that the employee, Tammy Ward, told one of her co-workers, Donna Garrison, that Garrison and two other named employees would be fired if the Union lost the election. When Garrison questioned Ward as to the source of her information, Ward replied that one of the supervisors, Joe Wiseman, had told her that the three workers would be discharged. Two other workers had overheard the conversation between Ward and Garrison and the story spread throughout the plant prior to the election which was held later that day. Based on the testimony of several witnesses, including Ward and Wiseman, the hearing officer concluded that Wiseman had, in fact, previously told Ward that "he would be glad when the union stuff was over so that he could get rid of employees who weren't doing their jobs," including Garrison and the two other employees. The hearing officer noted that Wiseman had tied the terminations to the end of the election, whereas Ward had suggested to Garrison that the dismissals would result in the event of a particular outcome, i.e., the Union losing the election.

Based on these findings, the hearing officer concluded that Ward's "threats" did not create a general atmosphere of fear and confusion which would render a free election impossible. The hearing officer also found that Ward's "misrepresentation" was not sufficiently objectionable to require that the election results be set aside.

The Company filed timely exceptions to the hearing officer's report. On June 5, 1985, a three-member panel of the Board issued a Decision and Certification of Representation, adopting the hearing officer's findings and recommendations and certifying the Union as the exclusive bargaining representative of the employees in the bargaining unit. Following the Company's refusal to engage in collective bargaining, the Union filed an unfair labor practice charge. On November 29, 1985, the Board issued its decision and order finding the Company guilty of committing unfair labor practices and ordering the Company to bargain with the Union upon request.

II.

The standard for reviewing a Board finding of an unfair labor practice is set forth in section 10(e) of the Act, 29 U.S.C. Sec. 160(e), which provides that the Board's findings of fact are conclusive "if supported by substantial evidence on the record considered as a whole." See also NLRB v. State Plating & Finishing, 738 F.2d 733, 737 (6th Cir.1984). This court has previously stated that "[w]e will not lightly set aside the results of a NLRB-supervised representation election." NLRB v. First Union Management, Inc., 777 F.2d 330, 336 (6th Cir.1985). The party who seeks to overturn the results of a representation election has the burden of showing that the election was not conducted fairly. NLRB v. Basic Wire Products, 516 F.2d 261, 263 (6th Cir.1975). To meet this burden, the objecting party must show "not only that the 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." NLRB v. McDonald's Industrial Products, 731 F.2d 340, 342 (quoting NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.1979)). With these general standards in mind, we now consider the Company's contention that the election results should be overturned because of Ward's threats to Garrison that she and others would lose their jobs if the Union was defeated.

It is well established that the threatening behavior or misconduct of a Union agent is given more weight than that of a third party when determining whether or not the election should be set aside. Cf. ATR Wire & Cable Co. v. NLRB, 752 F.2d 201 (6th Cir.1981) (per curiam). ¹ In adopting the hearing officer's report and recommendation, the Board expressly refrained from ruling on the officer's finding that Ward had not acted as a Union agent. Rather, the Board assumed, arguendo, that Ward was a Union agent. Therefore, the question is whether Ward's statement to Garrison, " 'reasonably tend[ed] to interfere with the employees' free and uncoerced choice in the election.' " See Baja's Place, 268 NLRB 868 (1984). ²

Given the undisputed facts in this case, we find ample evidence in the record to support the Board's conclusion that Ward's statements to Garrison did not interfere with the right to a free and fair election. The "threat" of dismissal originated with a management representative, Joe Wiseman. Ward merely repeated the threat to Garrison who was named by Wiseman as one of the workers targeted for termination. Wiseman had given specific instances of poor performances as the grounds for dismissal and Ward related these to Garrison. By raising the spectre of impending dismissals, Ward implied that, if elected, the Union could protect the employees from losing their jobs. This type of last-minute campaigning, which stresses the benefits of union representation in terms of job security, should be distinguished from situations in which a union representative suggests that workers will be fired in direct retaliation for voting against the union. Cf. Wilkinson Manufacturing Co. v. NLRB, 456 F.2d 298, 302 (8th Cir.1972) (union field representative had stated to an anti-union employee "that if the union got in it 'had ways' of getting rid of non-union employees"). Thus, the Board could have reasonably concluded that Ward's warning to Garrison regarding the planned post-election firings was a permissible partisan appeal for union support. As we recently stated in Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312 (6th Cir.1987) (per curiam), "The simple fact that one employee urged another to vote for union representation does not merit the setting aside of a representation election." Id. at 316.

In considering the record as a whole, we also note the lack of certain types of evidence. Ward's comments to Garrison were the only acts of Union misconduct alleged by the Company. In contrast to many cases involving allegations of misconduct during the course of a union representation campaign, it appears from the record that this election campaign was entirely free of violence, vandalism, or even threats of violence. ³ In sum, we find substantial evidence in the record to support the Board's conclusion that Ward's statement to Garrison did not unreasonably interfere with the employees' right to a free and fair election.

III.

Having found substantial evidence in the record to support the Board's determination with respect to the issue of coercion, we now consider the separate but related issue of whether Ward's statements amounted to a misrepresentation which would require that the election results be set aside. In recent years, the Board has adopted and rejected several different standards for determining whether a representation election should be overturned because of false...