N.L.R.B. v. V & S Schuler Engineering, Inc.

Decision Date30 October 2002
Docket NumberNo. 01-1486.,01-1486.
Citation309 F.3d 362
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. V & S SCHULER ENGINEERING, INC., Respondent, UNITED STEELWORKERS OF AMERICA, AFL-CIO/CLC, Intervenor.
CourtU.S. Court of Appeals — Sixth Circuit

Sharon I Block, Bridget O'Connor, Jeffrey Hirsch (argued and briefed), National Labor Relations Board, Office of the General Counsel, Washington, DC, Aileen A. Armstrong (briefed), Dep. Asso. Gen. Counsel, Washington, DC, for Petitioner.

Andrew C. Smith (argued and briefed), David A. Campbell (briefed), Vorys, Sater, Seymour & Pease, Columbus, OH, for Respondent.

Angela E. Pace (argued and briefed), Assistant General Counsel, United Steelworkers of America AFL-CIO/CLC, Pittsburgh, PA, for Intervenor.

Before: KRUPANSKY and CLAY, Circuit Judges; GWIN, District Judge.*

OPINION

GWIN, District Judge.

With this opinion, the Court reviews the National Labor Relations Board's (the "Board") November 9, 2000, order and decision by which the Board asks this Court to enforce the order it issued against Respondent, V & S Schuler Engineering, Inc. ("Company" or "Schuler Engineering").1 In that decision, the Board found that the Company violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (the "Act" or "NLRA") by refusing the request of Intervenor United Steelworkers of America, AFL CIO/CLC (the "Union") to bargain and furnish information.

Schuler Engineering has refused to recognize the Union as the representative of the employees, alleging that the Board improperly granted its certification of the Union as the collective bargaining representative. Regarding its claim that the Board wrongly certified the Union in the underlying certification case,2 Schuler Engineering first says the Board wrongly ordered a second election after finding the first election invalid. The Board found the first election invalid because of a Company prohibition against posting union material on the employee bulletin board and a solicitation of grievances by the Company President. Second, Schuler Engineering alleges that the Board erred when it certified the Union as the exclusive bargaining representative after denying, without hearing, the Company's objections to the second election. In objecting to the second election, the Company argued that an altered sample ballot, an employee's election-day conduct, and a supervisor's allegedly pro-union conduct warranted a new election.

Because we find that substantial evidence supports the Board's election certification and its finding that Schuler Engineering violated the Act by failing to bargain in good faith, we certify the Board's order requiring the Company to bargain collectively with the Union.

Background

Schuler Engineering is an Ohio corporation with an office and place of business in Canton, Ohio, where it fabricates steel products.

On February 8, 1999, the Union filed a petition with the Board seeking certification as the representative of the production and maintenance employees at the Canton facility. After the parties agreed on the terms of an election, the Board conducted a secret-ballot election on March 22, 1999. The Union lost the election by one vote, with twenty employees voting against union representation and nineteen voting in favor of union representation.

The Union objected. Among its objections, the Union contended that the Company surveilled, harassed, and discriminated against union supporters. More important for purposes of this appeal, the Union argued that the Company interfered with the rights of employees to collectively bargain by both adopting a rule prohibiting the posting of union literature on the employee bulletin board and by the Company's President soliciting grievances to discourage support for the Union.

After affording a hearing on the objections, the Board rejected the Union's challenge to certain ballots and surveillance, harassment and discrimination claims. In a July 29, 1999, decision, the Board, however, set aside the election and ordered a new vote because the Company improperly prohibited union literature on the employee bulletin board and solicited grievances.3

On September 17, 1999, the Board conducted a second secret-ballot election. The Union won the election, with twenty-one employees voting in favor of union representation and fourteen voting against it.4 On September 24, 1999, the Company filed objections to the election. Seeking to stop certification, the Company alleged that the Union improperly disseminated an altered sample ballot, that a union supporter openly campaigned in the voting area, and that a supervisor who supported the Union interfered with the employees' rights. After reviewing the Company's objections, the Regional Director recommended overruling the objections without a hearing and certifying the Union to represent the bargaining unit.

The Company excepted to the Regional Director's recommendation. On December 23, 1999, the Board overruled the Company's objections to the second election and certified the Union as the employees' collective-bargaining representative.

After being certified as the representative for collective bargaining purposes, the Union solicited negotiations with the Company regarding terms and conditions of employment. The Company refused to negotiate and the Union filed an unfair labor practice charge. The Board's Regional Director issued a complaint alleging that the Company refused to bargain and provide requested information in violation of Section 8(a)(5) and (1) of the Act (29 U.S.C. § 158(a)(5) and (1)). The Company admitted its refusal to bargain and provide information, but defended against the complaint on the ground that the Union was improperly certified.

Rejecting this defense, the Board found the Company had engaged in unfair labor practices affecting commerce by refusing to bargain and provide information, in violation of Section 8(a)(5) and (1) of the Act.

Discussion

Schuler Engineering acknowledges it refused to bargain or provide information but argues that it had no duty to bargain because the Board improperly certified the Union as the exclusive collective bargaining representative.5 In support of this argument, Schuler Engineering first says the Board wrongly set aside the first election, an election the Union lost by one vote, because of the Company's pre-election misconduct. Second, Schuler Engineering says the Board erred when it rejected, without hearing, the Company's objections to the second election, an election the Company lost by a wide margin with two-thirds of voters asking for Union representation.

Standard of Review

Congress has given the Board a broad range of discretion in supervising representation elections and establishing their procedures. Thus, generally the role of a reviewing court is limited to determining whether the Board abused that discretion and whether the Board's findings are reasonable. Randall, Burkart/Randall Div. of Textron, Inc. v. NLRB, 638 F.2d 957, 959 (6th Cir.1981). The Board's findings of fact are conclusive if supported by substantial evidence. The "Board's reasonable inferences may not be displaced on review even though the court might justifiably have reached a different conclusion had the matter been before it de novo." NLRB v. St. Francis Healthcare Centre, 212 F.3d 945, 952 (6th Cir.2000). Evidence is substantial when it is "adequate, in a reasonable mind, to uphold the [Board's] decision." Id. at 951-952, (quoting DTR Indus., Inc. v. NLRB, 39 F.3d 106, 110 (6th Cir.1994)).

To decide whether the Board has abused its discretion, we determine whether its orders have a "reasonable basis in law." Pannier Corp., Graphics Div. v. NLRB, 120 F.3d 603, 606 (6th Cir.1997) (quoting Van Dorn Plastic Mach. Co. v. NLRB, 736 F.2d 343, 347 (6th Cir.1984)). Board orders have no reasonable basis in law "either because the proper legal standard was not applied or because the Board applied the correct standard but failed to give the plain language of the standard its ordinary meaning." Id. (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979)).

Board's Review of Original Election

On March 22, 1999, the Board held a secret-ballot election at Schuler Engineering. The Union challenged certain ballots and objected to the election, arguing that the Company had surveilled, harassed and discriminated against union supporters; promulgated a rule prohibiting the posting of union literature on the employee bulletin board; and solicited grievances to discourage support for the Union.

After an investigation, the Board's Regional Director ordered a hearing on the Union's objection to the election. After the May 25, 1999, hearing, the hearing officer recommended rejecting the Union's objection based upon surveillance, harassment and discrimination but recommended that the Board set aside the election because the Company solicited grievances and prohibited union literature on the employee bulletin board. After Company exceptions to the recommendation were denied, the Board adopted the hearing officer's findings and recommendation.

On September 17, 1999, the Board conducted the second election. The employees voted twenty-one to fourteen in favor of union representation; two ballots were challenged, a number insufficient to affect the outcome.

In seeking to overturn the results of a representation election, the Union had "the burden of showing that the election was not conducted fairly." NLRB v. Superior Coatings, Inc., 839 F.2d 1178, 1180 (6th Cir.1988). To make this showing, the Union must demonstrate that "unlawful conduct occurred which interfered with employees' exercise of free choice to such an extent that it materially affected the result of the election." NLRB v. Shrader's, Inc., 928 F.2d 194, 196 (6th Cir.1991)...

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