N.L.R.B. v. Earle Industries, Inc., AFL-CI
| Decision Date | 28 July 1993 |
| Docket Number | CL,I,No. 92-3228,AFL-CI,92-3228 |
| Citation | 999 F.2d 1268 |
| Parties | 143 L.R.R.M. (BNA) 2956, 62 USLW 2116, 125 Lab.Cas. P 10,782 NATIONAL LABOR RELATIONS BOARD, Petitioner. Southwest Regional Joint Board, Amalgamated Clothing and Textile Workers Union,ntervenor, v. EARLE INDUSTRIES, INC., Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lisa Richardson, N.L.R.B., Washington, DC, argued, for petitioner.
Jeff Weintraub, Memphis, TN, argued, for respondent.
Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and STOHR, * District Judge.
The National Labor Relations Board applies for enforcement of its decision and order against Earle Industries, Inc. We affirm the Board's decision and enforce its order.
Earle Industries is a corporation engaged in the manufacture of closet accessories in Earle, Arkansas. On October 25, 1991, the Board conducted a representation election among Earle Industries' employees to determine whether the employees desired to be represented by the Amalgamated Clothing and Textile Workers Union, Southwest Regional Joint Board (the union). The election resulted in 165 votes in favor of representation by the union, 131 votes against, and 14 non-determinative challenged ballots.
Earle Industries filed objections to the election, alleging that the union had interfered with the election by "[c]reating a climate of fear and coercion" through the activities of the Reverend Jesse Jackson and other union agents and supporters at Earle Industries' plant on October 1 and October 24, 1991.
The circumstances surrounding the two incidents alleged by Earle Industries to have interfered with the election were found by the Board to be as follows.
At approximately 11:30 a.m. on October 1, 1991, during the employees' lunch period, some employees began distributing union buttons to a large group of employees gathered in Earle Industries' parking lot. Shortly thereafter, Reverend Jackson, accompanied by union representatives and members of the media, arrived at the parking lot. Reverend Jackson was greeted by cheering and opened the rally with a prayer. A few minutes later, Michael Holdway, a union representative, drove a flatbed truck into the parking lot. Reverend Jackson then mounted the truck and began speaking through a microphone to the group of employees concerning the benefits of unionization.
At the request of Gary Smith, Earle Industries' personnel manager, the Earle police informed the union representatives, Reverend Jackson, and the members of his group that they were trespassing and would have to leave the premises. The police also told union representative Duane Stillwell and two other men that they were trespassing and that they would have to move the truck off Earle Industries' property. One of the men indicated that Reverend Jackson was almost finished with his speech. Smith reiterated his demand, and Earle Police Chief Greg Martin told Stillwell and the other two men that they had thirty seconds to shut down the sound equipment and leave the property.
When the union representatives failed to respond to the police request within the designated time, the police officers shut down the sound system, cutting off Reverend Jackson's speech. Reverend Jackson attempted to continue his speech, but had difficulty making himself heard over the crowd's ambient noise. At the same time, Stillwell removed the keys from the truck, whereupon the officers arrested him and Holdway, the driver, for trespassing. The police then drove the truck off Earle Industries' property, with Reverend Jackson and various other union supporters still aboard. Reverend Jackson dismounted from the truck, and, along with a number of employees, returned to the property. A short time later, Reverend Jackson went over to the police car in which Stillwell and Holdway remained handcuffed in the back seat. Reverend Jackson informed the arrested officials that he was going to enter the plant to persuade the owner to drop the charges. In all, the truck was on the premises for some fifteen or twenty minutes.
Shortly before noon, Reverend Jackson, accompanied by some employees and members of the media, entered the plant through the employee entrance. They walked through a passageway that led to the front administrative offices. Before they reached the door leading into the foyer of the front offices, the group was intercepted by Smith. Reverend Jackson, surmising that Smith was in fact Peter Felsenthal, Earle Industries' senior vice-president, shook hands with Smith. Upon learning that Smith was not Felsenthal, Reverend Jackson requested an audience with Felsenthal. Smith informed Reverend Jackson that he was trespassing, and repeatedly asked him to leave the plant through the employee entrance and re-enter through the front entrance, designated for visitors. Reverend Jackson asked Smith to accompany him to the front entrance, but Smith declined. After reiterating his request that Reverend Jackson leave, Smith stated that he was not going to argue and retreated into the foyer and front office reception area, locking the door behind him.
Reverend Jackson and his group followed Smith, prompting cheers from some of the employees. Meanwhile, Smith proceeded to Felsenthal's office and informed him that Reverend Jackson was in the front foyer. Chief Martin informed Felsenthal that he, Felsenthal, would have to talk to Reverend Jackson or else Martin would arrest Reverend Jackson. Felsenthal agreed to meet with Reverend Jackson in his office, and Martin escorted Reverend Jackson into the office. The Board found that less than two minutes had elapsed from the time Reverend Jackson entered the plant to when he entered the front office. By this time, most of the employees had returned to their work stations.
The meeting, which included Reverend Jackson, Felsenthal, and Chief Martin, occurred in Felsenthal's office. During the meeting, Reverend Jackson told Felsenthal that he thought that Earle Industries' workers should organize and that he had visited the plant to assist them in their efforts. Reverend Jackson also encouraged Felsenthal to agree to October 25 as the date for an election. Felsenthal responded that he had already tentatively agreed to that date with the Board but had not yet announced it to the employees. Felsenthal agreed that Reverend Jackson could inform the news media that October 25 was the tentative date. Felsenthal and Reverend Jackson also discussed working conditions. In addition, Felsenthal informed Chief Martin that he did not intend to press charges against the two union officials who had been arrested.
Shortly after the meeting, Reverend Jackson held a three minute press conference in Earle Industries' parking lot, at which he discussed some of the history of organizing at Earle Industries and announced that Felsenthal had told him that he would recommend that the election be held on October 25. Reverend Jackson then left the property at approximately 1:00 p.m.
On October 24, the day before the election, based on rumors that Reverend Jackson would reappear, Earle Industries released employees at 2:30 p.m., an hour before their normal quitting time. By 3:00 p.m., most of the employees had vacated the premises, and the facility had been secured. At 3:15 p.m., Reverend Jackson and a group of his supporters arrived and parked on the shoulder of Highway 64, where they met briefly with union representatives and some employees. Reverend Jackson then walked across the highway toward the entry gate to the parking lot, where he was met by Smith outside the company's property. Reverend Jackson requested a meeting with Felsenthal, but Smith informed him that Felsenthal was working on election details. Smith told Reverend Jackson that Felsenthal would be happy to meet with him in neutral territory during the week following the election. Reverend Jackson replied that he would be glad to meet with Felsenthal in either Memphis or Washington, D.C., and would assist in any way possible after the election. Smith and Reverend Jackson shook hands, and Reverend Jackson walked back across the highway, where he joined some employees, supporters, and members of the media. The group then marched along Highway 64 and proceeded through the town of Earle to the Earle Garden Club where the group held a rally.
The Board's Regional Director conducted an investigation of Earle Industries' objections. On December 5, 1991, the Regional Director issued a report in which he recommended that the Board overrule the objections in their entirety and certify the union as the employees' bargaining representative. Earle Industries filed exceptions to the Regional Director's report.
On June 4, 1992, the Board issued its Decision and Certification of Representative, in which it adopted the Regional Director's findings and recommendations concerning Earle Industries' objections and certified the union as the unit employees' exclusive bargaining representative.
Earle Industries refused to bargain with the union. The union responded by filing an unfair labor practice charge with the Board. The Board's General Counsel issued a complaint alleging that Earle Industries had refused to bargain with the union, in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act (the Act) (29 U.S.C. §§ 158(a)(1) and (a)(5)). Earle Industries admitted its refusal to bargain, but attacked the validity of the union's underlying certification, asserting that the Board had improperly overruled its objections to the election.
The Board's General Counsel filed a motion for summary judgment with the Board. The Board issued an order transferring the proceeding to itself and requiring Earle Industries to show cause why summary judgment should not be granted. Earle Industries did not file a response.
Thereafter, the Board issued its decision and order, granting the General C...
To continue reading
Request your trial
-
Family Service Agency San Francisco v. N.L.R.B.
... ... a petition with the National Labor Relations Board ("NLRB" or "Board") seeking a representation election among these ... See, e.g., M&M Supermarkets, Inc. v. NLRB, 818 F.2d 1567 (11th Cir.1987); NLRB v. Utell ... Earle Industries, Inc., 999 F.2d 1268, 1272 (8th Cir.1993) ... ...
-
Earle Industries, Inc. v. N.L.R.B.
...that the employees had not, contrary to Respondent's assertions; erupted into a frenzy or near-riot. N.L.R.B. v. Earle Industries, Inc., 999 F.2d 1268, 1270, 1273 (8th Cir.1993). Granted, the issue in that appeal was whether the events of that day interfered with the representation election......
-
Dolgencorp, LLC v. Nat'l Labor Relations Bd.
...in NLRB v. Earle Industries, Inc. that the temporal proximity of the misconduct to the election date must be considered. 999 F.2d 1268, 1273 (8th Cir. 1993) ("[T]he lapse of time between the alleged incidents of misconduct and the election date is a factor that must be considered.") (emphas......
-
O'Neil's Markets v. United Food and Commercial Workers' Union, Meatcutters Local 88, AFL-CIO, CLC
...in the record supports its findings.' " Brown Shoe Co. v. NLRB, 33 F.3d 1019, 1022 (8th Cir.1994) (quoting NLRB v. Earle Indus., Inc., 999 F.2d 1268, 1272 (8th Cir.1993)). A. Area Standards Handbilling as a Section 7 O'Neil's argues that, after Lechmere, area standards picketing, if protect......