N.L.R.B. v. Columbia Cable TV Co., Inc.
| Citation | 856 F.2d 636 |
| Decision Date | 07 September 1988 |
| Docket Number | No. 87-2664,87-2664 |
| Parties | 129 L.R.R.M. (BNA) 2302, 57 USLW 2195, 109 Lab.Cas. P 10,690 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COLUMBIA CABLE TV COMPANY, INC., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Elizabeth A. Dunn (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Susan L. Williams, Supervisory Atty., N.L.R.B., Washington, D.C., on brief), for petitioner.
R. Lee Creasman, Jr. (James C. Hoover, Clark, Paul, Hoover & Mallard, Atlanta, Ga., on brief), for respondent.
Before HALL and WILKINSON, Circuit Judges, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
The National Labor Relations Board ("NLRB" or "the Board") petitions for enforcement of its order requiring Columbia Cable TV Company, Inc. ("Columbia" or, "the Company") to bargain with General Drivers, Warehousemen and Helpers Local No. 509 ("the Union") as the exclusive representative of Columbia's employees. The Company opposes enforcement contending that the certification election was fatally tainted by a company supervisor's pro-union activity. Finding that the Board did not abuse its discretion by certifying the Union as an exclusive representative, we grant enforcement of the order.
Columbia, a South Carolina Corporation, is engaged in the receipt and distribution of local and distant television satellite signals at its facilities in Columbia and West Columbia, South Carolina. On May 7, 1986, the Union filed a representation petition with the Board seeking certification as the exclusive collective bargaining representative of Columbia's employees. The Board then conducted a secret ballot election in the appropriate unit of the Company's employees on June 2, 1986, which was won by the Union by a vote of 30 to 13. There were six challenged ballots, a number insufficient to affect the results of the election.
The Company subsequently filed a number of objections with the Regional Director of the Board challenging the validity of the election. Of particular relevance to this appeal is the Company's allegation that pro-union activity of a former supervisor, Jim Barnes, created an atmosphere of fear and reprisal that made a free election impossible. According to the Company, Barnes, then the second in command at the Columbia facility, informed certain employees in the early spring of 1986 that the General Manager, Bud Tibshrany, had developed a "hit list" of employees targeted for termination. Barnes further informed the employees that he had been directed to "build a file" on certain individuals to assist in the terminations, but instead intended to resign in protest. Barnes maintained that only by supporting a union would the employees be able to protect themselves.
Barnes, in fact, did resign from the Company on April 25, 1986. At a going-away party, he generally reiterated his belief that the employees needed a union to protect themselves from Tibshrany. An employee later testified that Barnes informed him at the party that he was on the General Manager's "hit list". It also appears that after his resignation and after the filing of the Union's petition, Barnes contacted at least one other employee and warned that person about the "hit list".
In rejecting the Company's claim that Barnes' conduct had tainted the election, the Regional Director noted that approximately one week after Barnes' resignation, Tibshrany met with Columbia employees and specifically denied that there was any "hit list". Tipshrany later informed an employee who had been warned by Barnes that Barnes' statement was "a barrel of bull". The Director observed that the Company also had more than ample opportunity to undertake further remedial action to disavow Barnes' statements before the June election if it had desired to do so. Finally, the Director recommended that the Company's objection be overruled because the pro-union activity had occurred before the filing of the representation petition and, thus, was not relevant to the fairness of the post-petition election.
After considering both the Regional Director's report and accompanying recommendations as well as the Company's exceptions to that report, the Board concluded that the Union should be certified as the bargaining representatives. The Board modified the Director's factual findings slightly by observing that some of Barnes' pro-union activity had taken place after the filing of the Union's petition. The Board determined, however, that even if all of Barnes' conduct, both pre- and post-petition were examined, there was no justification for setting aside the election. 1
Following the Board's decision, the Union requested that the Company engage in collective bargaining. Columbia refused and the Union filed an unfair labor practice charge with NLRB alleging a violation of Sections 8(a)(5) and (1) of the National Labor Relations Act. After the Union's position was upheld on a motion for summary judgment, the Board issued an order requiring the Company to cease and desist its unfair labor practice, to bargain with the Union upon request, and to embody the result of such bargaining in a written agreement. The Board now asks that we enforce that order.
In opposing the application for enforcement, Columbia contends that the Board did not properly assess the coercive impact of Barnes' conduct upon the fairness of the election. The Company argues that the Board's order conflicts with its own decision in MKD Distributors d/b/a Dreyer's Grand Ice Cream Northwest, 279 N.L.R.B. No. 107 (April 30, 1986) which explicitly recognized that pro-union activity by a supervisor tends "to effectively coerce employees in the exercise of their free choice...." 279 N.L.R.B. No. 107 at 3. The Company also contends that the Board erred in rejecting its position on summary judgment without first conducting an administrative hearing. We find the Company's arguments unpersuasive.
The results of a Board-supervised representation election are presumptively valid. 2 The Board's determination that...
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