N.L.R.B. v. ARA Services, Inc.

Decision Date27 December 1983
Docket NumberNo. 81-1701,81-1701
Parties114 L.R.R.M. (BNA) 2377, 115 L.R.R.M. (BNA) 2337, 98 Lab.Cas. P 10,439 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARA SERVICES, INC., Respondent.
CourtU.S. Court of Appeals — Third Circuit

Lawrence J. Song, Atty., N.L.R.B., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John H. Ferguson (argued), Atty., Washington, D.C., for petitioner.

Jackson, Lewis, Schnitzler & Krupman, Norman R. Buchsbaum, Joe C. Ashworth, Baltimore, Md., and Roger S. Kaplan (argued), New York City, for respondent.

Argued Dec. 15, 1981.

Before ADAMS, GIBBONS and GARTH, Circuit Judges.

Reargued En Banc Nov. 8, 1982.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

GIBBONS, Circuit Judge:

This case is before us on the application of the National Labor Relations Board (the Board) to enforce its order finding that ARA Services, Inc. (ARA) violated section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5) (1976), by refusing to recognize and bargain with Local 1111, United Food and Commercial Workers International Union, AFL-CIO (the Union). That Union has been certified as the bargaining representative for ARA employees in a representation proceeding conducted pursuant to section 9 of the Act. 29 U.S.C. Sec. 159 (1976). The employer concedes the refusal to bargain, but urges that the Board erred in overruling its objections to the conduct of a Board supervised election. The case requires our consideration of the scope of this court's review of the Board's review of a regional director's report on objections to the conduct of elections, in particular a regional director's decision to issue such a report on the basis of an administrative investigation rather than a hearing. We conclude that the Board did not abuse its discretion when it overruled objections to the conduct of the election without requiring that the regional director conduct a hearing, and we enforce the Board's order directing the employer to bargain collectively.

I. Proceedings Before the NLRB

ARA is engaged in the industrial catering business at a number of locations, including the cafeteria and dining room of Bell Laboratories in Murray Hill, New Jersey. On October 24, 1979 the Union, claiming majority support among ARA employees at that facility, sought recognition as their collective bargaining representative. ARA declined recognition, and on November 9 the Union filed a representation petition with the Board. The company stipulated to a consent election on January 11, 1980, and the stipulation defined the appropriate bargaining unit of 69 members. Of these, 58 cast ballots, with 30 voting for union representation. The regional director for Region 22 thereupon furnished to the parties a tally of the ballots. Within the 5 days permitted by 29 C.F.R. Sec. 102.69(a), counsel for ARA filed with him the following unverified objections to the conduct of the election:

Objection No. 1

The Union, by its officers, agents, supporters and adherents threatened employees with physical harm, social ostracism, and other reprisals if they voted against union representation. The Union, acting through its officers, agents and adherents, chilled the atmosphere and interfered with the free exchange of ideas by advising employees that it was aware of which employees were talking to management representatives, thereby creating an atmosphere of coercion and tension which interfered with the conduct of the election.

Objection No. 2

Board Agent Bennett Muraskin failed to exercise his authority and to affirmatively act so as to make it clear to the employees that the election was being conducted by the Board and that the Board was in actual charge of the voting arrangements but allowed the Union's designated observer to appear to be running the election process, thereby interfering with the election, creating the impression that the Government was not in control and substantially affecting the outcome of the election.

These unverified objections resulted in an investigation by the regional director. See 29 C.F.R. Sec. 102.69(c)(1).

During the course of the regional director's investigation ARA furnished unverified handwritten statements by three bargaining unit employees, Kevin Woodruff, Frank Smith and June Colavito. The statement of Woodruff was tendered in support of Objection No. 1, while that of Colavito was tendered in support of Objection No. 2. Smith's contains an additional charge.

Woodruff's statement, in relevant part, reads

Paul Reisner and Enzo Fusco, two pro-union spokesmen on two different occasions, before the voting took place, told me that I should go along with the Union. Enzo said he'd "beat me up" if I did not join the Union. Paul Reisner told me he'd "get back at me" if I didn't join the Union.

* * *

The Union man a big tall guy, who was here for the vote said there would be an all-out strike--no food, no jobs, that the trucks would be prevented from delivering food and no one would be able to come to work. Fusco was present when the Union official made this comment. Fusco said to me that I better vote yes. Fusco and some of the others told me that if I didn't vote for the Union, nobody would be my friend or talk to me.

Woodruff's statement does not say whether or not he voted in the election. During the course of his investigation the regional director interviewed Woodruff, Fusco and Reisner. With respect to the charge that Woodruff was threatened with the loss of friends, his Report on Objections notes that Woodruff "admitted, however, that the second threat of losing friends was not taken seriously, due to the bantering nature of the statement, and further claimed to be unsure if Fusco himself was serious when making the statements imputed to him." When interviewed Woodruff apparently reiterated the charge that Fusco threatened to beat him up. He also enlarged upon the charge that Reisner, an assistant chef, threatened to get back at him, stating that this threat was made after Reisner had learned Woodruff had disclosed a union campaign letter to a supervisor.

During the course of the investigation both Fusco and Reisner were interviewed, and both denied making the alleged threats. The regional director did not, however, resolve this credibility issue. Instead, his report observes:

The investigation revealed that neither Fusco nor Reissner [sic] were identified as prominent Union partisans in the pre-election period, neither distributed or collected authorization cards or acted as election observers. Further, Reissner [sic] resigned prior to the date of the election and Fusco's employment terminated shortly thereafter. Employees other than both Fusco and Reissner [sic], have been identified as having established initial contact with Petitioner [Union], distributing, collecting and returning authorization cards on behalf of Petitioner [Union] and serving as active members of an organizing committee. Such overt activity on behalf of Petitioner [Union] by such other employees is generally not sufficient to establish agency thereby holding Petitioner [Union] responsible for the alleged wrongdoings of employees without more. 2 In this regard, Fusco and Reissner [sic] were not the prime Union adherents, and there is no evidence that the Petitioner [Union] was aware of any alleged misconduct attributed to them nor condoned or ratified any of their alleged actions. Further there is no evidence that any representative of Petitioner [Union] engaged in any other misconduct.

2. International Ladies' Garment Workers' Union, AFL-CIO, 214 NLRB 706 (1974).

Woodruff's statement is the only evidence submitted by ARA in support of Objection No. 1. Except for the interlineation describing Reisner and Fusco as "two pro-union spokesmen" it contains no information about the connection of either to the Union or the organizing effort. Thus the facts respecting their status developed during the regional director's investigation is uncontradicted by any evidence submitted by ARA.

Colavito's statement is quoted in the margin. 1 It refers to no specific misconduct by either the Board agent supervising the election or the Union observer. In a conclusory manner it asserts that from her viewpoint as a company observer the Union observer acted so officiously as to give the impression the election was under Union control, and the Board agents failed to negate that impression. The regional director's investigation determined that the election notices printed by the Board and informing the voters that the election was under the Board's aegis, were duly and timely posted; that observers for the parties were instructed as to their duties and were issued and wore identifying badges during the election; that the Board agents also wore identifying badges; and that both observers scrupulously followed the Board agents' instructions. The Regional Director concluded that "no probative evidence was submitted, nor did the investigation disclose any evidence, that the Petitioner's [Union's] observer engaged in any conduct that was intended to or had the effect of interfering with the employees' free choice in the election...."

Smith's statement contains the charge that "several of the pro-Union girls told me that if I voted for the Union in the NLRB election, the Union would be giving me a birthday gift." This objection was not made within the time permitted by 29 C.F.R. Sec. 102.69(a), but Board precedent permits the regional director to consider matters uncovered in the course of an investigation not specifically alleged in objections to an election. See Pure Chem Corp., 192 NLRB 681 (1971)...

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