N.L.R.B. v. Hydrotherm, Inc.
| Decision Date | 05 August 1987 |
| Docket Number | No. 86-3652,86-3652 |
| Citation | 824 F.2d 332 |
| Parties | 125 L.R.R.M. (BNA) 3431, 107 Lab.Cas. P 10,063 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HYDROTHERM, INC., Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Frank L. Kollman (Blum, Yumkas, Mailman, Gutman & Denick, P.A., Baltimore, Md., on brief) for respondent.
Joseph A. Oertel, N.L.R.B. (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Linda Dreeben, Supervisory Atty., Washington, D.C., on brief) for petitioner.
Before WINTER, Chief Judge, HARVEY, Chief United States District Judge for the District of Maryland, sitting by designation and SMALKIN, United States District Judge for the District of Maryland, sitting by designation.
In this proceeding, the National Labor Relations Board ("the Board") invokes our jurisdiction under 29 U.S.C. Sec. 160(e) to enforce its order of August 7, 1986. In its decision and order of that date, the Board adopted the recommended order of an Administrative Law Judge directing respondent Hydrotherm, Inc. ("the company") to cease and desist from refusing to recognize and bargain collectively with the Petroleum, Construction, Tank Line Drivers and Allied Employees Local Union No. 311 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America 1 ("the union") as the exclusive representative of its employees. The company was further affirmatively ordered to bargain with the union as the exclusive representative of the company's employees. Opposing enforcement, the company asserts that the Board erred as a matter of law or abused its discretion in certifying the union as the exclusive representative of its employees. For the reasons that follow enforcement of the Board's order of August 7, 1986 will be granted.
On March 22, 1983, the union petitioned the Board's Regional Director to conduct a representation election in a unit of the company's production and maintenance employees. Accordingly, on May 12, 1983, the Board's Regional Director conducted a representation election pursuant to Section 9 of the National Labor Relations Act (hereinafter "the NLRA"), 29 U.S.C. Sec. 159. Fifty-nine employees voted in favor of representation by the union, and fifty-six employees voted against such representation.
The company timely filed nineteen objections to the election, alleging that agents and supporters of the union improperly interfered with employees' free choice in the election. The Board's Regional Director conducted an investigation and recommended in his Report on Challenges and Objections ("the Report") that the Board overrule the company's objections and certify the union as the exclusive bargaining representative. The company filed timely objections to the Report. On June 11, 1984, the Board in a two-to-one vote, overruled the company's objections to the election and certified the union as the exclusive representative of the company's production and maintenance employees.
Shortly after certification, the union requested that the company enter into collective bargaining. The company rejected the union's request, and the union subsequently filed an unfair labor practice charge with the Board. The Board's Regional Director thereafter issued a complaint alleging that the company's refusal to bargain violated Sections 8(a)(5) and (1) of the NLRA, 29 U.S.C. Sec. 158(a)(5) and (1). The company filed an answer admitting that it had refused to bargain, but denying that the union had been properly certified. Following a hearing, an Administrative Law Judge ("ALJ") rendered a Decision dated December 21, 1984, concluding that the company had engaged in unfair labor practices by improperly refusing to bargain with the union. By its order of August 7, 1986, the Board adopted the findings and conclusions of the ALJ.
Well established principles of law govern our consideration of a challenge of this sort to a representation election. Congress has entrusted the Board with a wide degree of discretion in establishing procedures and safeguards necessary to insure the fair and free choice of bargaining representatives by employees. NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946). "The specialized functions of the Board, such as ... the identification of an unacceptable degree of interference with free choice in union elections, require a quality and degree of expertise uniquely within the domain of the Board." NLRB v. Klingler Electric Corporation, 656 F.2d 76, 85 (5th Cir.1981). If the Board's decision is reasonable and based on substantial evidence in the record considered as a whole, our inquiry is at an end. Id. "The determination of a valid election is within the sound discretion of the Board, and the Board should be reversed only when it has abused its discretion." NLRB v. Manufacturer's Packaging Co., Inc., 645 F.2d 223, 225 (4th Cir.1981).
When pre-election conduct is alleged to have invalidated a representation election, the company, as the party seeking to overturn the election, bears the burden of proving that campaign improprieties prevented a fair election. NLRB v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455 (1961); NLRB v. Manufacturer's Packaging Co., Inc., 645 F.2d at 225. The challenging party's burden is "to show by specific evidence not only that unlawful acts occurred but also that such acts sufficiently inhibited the free choice of employees as to affect materially the results of the election." NLRB 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).
Although the company states in its brief that it is presenting to this Court six of its objections to the representation election, in actuality the company has here presented us with three principal grounds for overturning the election. First, the company argues that the certification election was invalid because a supervisor employed by the company allegedly threatened an employee before the election with discharge if he did not support the union.
The challenged election was held on May 12, 1983. Some two months before the election, Mark Vandevander, a statutory supervisor within the meaning of Sec. 2(11) of the NLRA, threatened employee George Amend with discharge if he did not sign a union authorization/membership card. Some six weeks before the election Vandevander was subsequently discharged by the company because of poor work performance. On April 11, 1983, the union filed an unfair labor practice charge on behalf of Vandevander seeking his reinstatement. That charge was pending throughout the pre-election period and was finally dismissed on May 20, 1983, eight days after the election.
As argued by the company, an election may be set aside if a supervisor's activities "contain the seeds of potential reprisal, punishment, or intimidation." NLRB v. Manufacturer's Packaging Co., Inc, 645 F.2d at 226. However, we agree with the Board's determination that the company has not met its burden of showing that pro-union activity by Vandevander interfered with the election. The Board reasonably concluded that Vandevander's alleged threats could not have interfered with the election because it was not possible, in view of his discharge, for the threats to have been carried out. Rocky Mountain Bank Note Co., 230 NLRB 922, 923 (1977); Stevenson Equipment Co., 179 NLRB 865, 866 (1969).
The company contends that the election should nonetheless be invalidated because an unfair labor practice charge filed on Vandevander's behalf by the union was pending during the preelection period and that therefore Vandevander's rehiring was anticipated by employees. However, in determining the likelihood of coercion where the employer has discharged a pro-union supervisor, the Board must consider whether the employees had a reasonable expectation of his reinstatement. Rocky Mountain Bank Note Co., 230 NLRB 922, 923 (1977). The company has presented no evidence here to demonstrate that its employees knew of the pending unfair labor practice charge or had any expectation that Vandevander would be reinstated.
The situation presented here is therefore distinguishable from NLRB v. Howard Johnson Motor Lodge, 705 F.2d 932 (7th Cir.1983), a case cited by the company. In denying enforcement of the Board's order, the Court in Howard Johnson noted that the supervisor, who had before her discharge threatened employees, had told employees after her discharge that she would get her job back with full back pay. In this case, the company has presented no evidence of statements made by Vandevander or by any one else after his discharge which would have created a reasonable expectation that he would be reinstated. We therefore conclude that there is substantial evidence supporting the Board's finding that supervisor Vandevander's alleged threat against an employee did not interfere with the employees' free choice in the certification election.
Alternatively, the company argues that the Board erred in certifying the union without holding a hearing to investigate the company's allegedly prima facie showing that Vandevander's actions tainted the election. We see no merit to this argument. A hearing is necessary if it is shown that there are substantial and material issues of disputed fact relating to the validity of the election. NLRB v. Manufacturer's Packaging Company, Inc., 645 F.2d at 226 n. 1. To be entitled to a hearing, the objecting party must make a proffer of evidence "which prima facie would warrant setting aside the election." NLRB...
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