N.L.R.B. v. Coca-Cola Bottling Co. Consol.

• Citation: 132 F.3d 1001
• Decision Date: 29 December 1997
• Docket Number: COCA-COLA,No. 97-1425,97-1425
• Parties: 157 L.R.R.M. (BNA) 2011, 134 Lab.Cas. P 10,098 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.BOTTLING COMPANY CONSOLIDATED, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1001

132 F.3d 1001

157 L.R.R.M. (BNA) 2011, 134 Lab.Cas. P 10,098

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COCA-COLA BOTTLING COMPANY CONSOLIDATED, Respondent.

No. 97-1425.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 1, 1997.

Decided Dec. 29, 1997.

ARGUED: Joan Elizabeth Hoyte, National Labor Relations Board, Washington, DC, for Petitioner. Michael Wade Bishop, Edwards, Ballard, Bishop, Sturm, Clark & Keim, P.A., Spartanburg, SC, for Respondent. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter Winkler, Supervisory Attorney, National Labor Relations Board, Washington, DC, for Petitioner. S. Clay Keim, Ballard, Bishop, Sturm, Clark & Keim, P.A., Spartanburg, SC, for Respondent.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Enforcement granted by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge NIEMEYER and Senior Judge MAGILL joined.

OPINION

MURNAGHAN, Circuit Judge:

In this proceeding, we confront a challenge to the National Labor Relations Board's certification of the Chauffeurs, Teamsters and Helpers, Local Union No. 175, as the exclusive bargaining representative of the employees of Coca-Cola's Logan, West Virginia soft-drink distribution facility. A Board-certified election was held on August 2, 1996, and the Union prevailed by a vote of eighteen to nine. The Company filed timely objections to the election, alleging that the Union had coerced employees to vote for it by granting and promising benefits conditioned upon a Union victory and by creating an atmosphere of fear and intimidation in the pre-election environment. The hearing officer considered these contentions and rejected them. The Board adopted the hearing officer's recommendations and, on September 30, 1996, issued its Decision and Certification of Representation, thereby certifying the Union as exclusive bargaining representative.

In an effort to obtain judicial review of the Board's certification, the Company refused to bargain with the Union. Thereafter, the Union filed charges pursuant to §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) (1988). In its answer to this complaint, the Company admitted that it had refused to bargain, but challenged the validity of the Board's decision to certify the Union. The General Counsel moved for summary judgment and, on January 27, 1997, the Board granted the motion and issued an order requiring the Company to bargain. Pursuant to 29 U.S.C. § 160(e), the Board petitions this Court for enforcement. Because we conclude that the Union was properly certified, we hereby grant enforcement.

I.

The Company operates a soft drink distribution facility in Logan, West Virginia. On June 1, 1996, the Union filed a petition for a Board-certified representation election. On June 26, 1996, employee David "Randy" Atkins sent a letter to the Company's Plant Manager, Luther Burdette. In the letter Atkins identified sixteen employees as the "Internal Organizing Committee" for the union organization effort. According to Atkins, his purpose in sending the letter was to protect the sixteen named employees from retaliation by the Company for any of their union organizing activities.

In July 1996, employees requested that the Union provide them with T-shirts and other items of pro-union paraphernalia. The Union complied and, on June 30, 1996, made T-shirts available to employees following a union organization meeting. The shirts were placed in a box at the back of the meeting room and at the end of the meeting employees were told they could go to the back of the room and take a shirt if they so desired. The T-shirts were supplied in two varieties, one with a Teamsters logo on the front and the other with the logo and the words "Bad Boy" stenciled on the back. The shirts ranged in value from $6.10 to $7.00 each.

At the same meeting on June 30, Union members from the local chapter answered questions and provided employees with information regarding various issues, including employee pension plans. The details of what employees were told regarding pension benefits is a matter of dispute. The Company claims employees were promised ten years of advanced credit toward a union pension plan if the Union won the election. The Union denies that such promises were made.

On July 6, 1996, union organizers held another meeting. Among other things which occurred during this meeting, one thing is relevant to this appeal. Employee Kendall Dingess attended this meeting and brought with him former employee Bill Atkins (no relation to Randy Atkins), who had previously worked for Coca-Cola at a different facility. Dingess asked Bill Atkins to speak to employees about how Atkins was treated when he was at the Company, and why he believed Coke employees would be better off with a union. Atkins's remarks were brief, and there are differing stories as to what Atkins actually said. The Company claims Atkins told employees he had been terminated from Coke for supporting the union in a prior election effort. The Union denies that Atkins made any such remark.

During the election, some union supporters experienced a fear of losing their jobs if the Union lost the election. They believed the Company might retaliate against them for having supported the Union. Some employees discussed these fears with their co-workers.

II.

Our consideration of the Board's enforcement petition is governed by well-established principles of law. Congress has entrusted the NLRB with broad discretion to establish procedures and safeguards "to insure the fair and free choice of bargaining representatives by employees." See N.L.R.B. v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 328, 91 L.Ed. 322 (1946). As a result, this Court treats the outcome of a Board-certified election as presumptively valid. See N.L.R.B. v. VSA, Inc., 24 F.3d 588, 591 (4th Cir.), cert. denied, 513 U.S. 1041, 115 S.Ct. 635, 130 L.Ed.2d 540 (1994) (citations omitted). In seeking to have an election set aside, the objecting party bears a "heavy burden." See N.L.R.B. v. Herbert Halperin Distrib. Corp., 826 F.2d 287, 290 (4th Cir.1987). To succeed, it must be shown by specific evidence that (1) the alleged acts did in fact occur and (2) such acts "sufficiently inhibited the free choice of employees" so as to affect materially the results of the election. N.L.R.B. v. Hydrotherm, Inc., 824 F.2d 332, 334 (4th Cir.1987) (quoting N.L.R.B. v. Handy Hardware Wholesale, Inc., 542 F.2d 935, 938 (5th Cir.1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 271 (1977)).

In evaluating alleged misconduct to determine whether the requisite prejudice has occurred, this Court is mindful of the real world environment in which an election takes place. Although the Board strives to maintain "laboratory conditions" in elections, see General Shoe Corp., 77 N.L.R.B. 124, 127 (1948), "clinical asepsis is an unattainable goal," VSA, 24 F.3d at 595 (citations omitted). An election is by its nature a rough and tumble affair, and a certain amount of "exaggerations, hyperbole, and appeals to emotions" are to be expected. Id. at 595 (quoting Schneider Mills, Inc. v. N.L.R.B., 390 F.2d 375, 379 (4th Cir.1968) (en banc)).

Given the complexity of the employment relationship, determining whether certain conduct is coercive "require[s] a quality and degree of expertise uniquely within the domain of the Board." Hydrotherm, 824 F.2d at 334. Where, as here, the Board has held a hearing on a party's election objections, on appeal the Board's findings of fact are "conclusive" if supported by substantial evidence. See National Labor Relations Act, 29 U.S.C. § 160(e). This Court will not substitute for the Board its judgment regarding factual findings, especially with respect to matters bearing on witness credibility. See Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); N.L.R.B. v. Air Prods. & Chems., Inc., 717 F.2d 141, 145 (4th Cir.1983). The ultimate determination of an election's validity rests within the "sound discretion of the Board," and this Court will reverse only upon a finding of abuse of discretion. See N.L.R.B. v. Manufacturer's Packaging Co., 645 F.2d 223, 225 (4th Cir.1981) (citations omitted). Therefore, "[i]f the Board's decision was reasonable and based on substantial evidence in the record considered as a whole, our inquiry is at an end." Hydrotherm, 824 F.2d at 334.

III.

In its opposition to enforcement of the Board's order, the Company presents three grounds on which it contends the election must be set aside. First, the Company argues that the Union engaged in coercion by encouraging employees to believe they would be terminated by the Company for their pro-union activities if the Union lost the election. According to the Company, the Union "regularly and consistently threatened employees" by representing to them that employees who supported a previous union organization effort had been discharged because of their pro-union activities; that everyone who supported the Union would be fired if the Company won the election; and that the only way to preserve employment with the Company was to make sure the Union won the election. These threats, the Company maintains, spread fear and uncertainty among employees, an atmosphere which the Union allegedly exacerbated by sending a letter to the Company's management identifying union supporters.

The Board rejected the Company's allegations on this point, and we agree. In the hearing below, the Company called eleven employees as witnesses. Not a single witness corroborated the employer's allegations that anyone connected with the Union--either directly or in a representative capacity--engaged in the sort of...