N.L.R.B. v. Rolligon Corp.
| Citation | 702 F.2d 589 |
| Decision Date | 11 April 1983 |
| Docket Number | No. 82-4148,82-4148 |
| Parties | 113 L.R.R.M. (BNA) 2044, 97 Lab.Cas. P 10,006 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROLLIGON CORPORATION, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Elliott Moore, Deputy Associate Gen. Counsel, Jolane Findley, N.L.R.B., Washington, D.C., for petitioner.
Fulbright & Jaworski, Brynley James, III, Houston, Tex., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before RANDALL and HIGGINBOTHAM, Circuit Judges, and McDONALD *, District Judge.
The National Labor Relations Board has petitioned this court seeking enforcement of its bargaining order. The respondent, Rolligon Corporation, refused to bargain with the Board-certified representative of its employees, Oil, Chemical and Atomic Workers ("OCAW"), in order to challenge the Board's certification of the union over Rolligon's objections to the validity of the representation election.
Rolligon has raised three objections as bases for invalidating the election: (1) that the union abused the Board's subpoena procedure by subpoenaing a majority of Rolligon's employees for no legitimate purpose; (2) that while the union representative was serving the subpoenas, he misrepresented his status vis-a-vis the Board; and (3) that the union improperly used the Board's offices for an organizational meeting. Rolligon contends that we should set aside the election because these actions had a tendency to mislead the employees into believing that the Board had endorsed the union. For the reasons set forth below, we grant the Board's request for enforcement.
Rolligon operates a factory in Stafford, Texas, where it manufactures off-road vehicles and special, large tires for use on those vehicles. The company employs approximately fifty people, of which about forty are in the bargaining unit at issue in this case.
The OCAW originally filed a petition seeking to represent Rolligon's employees in January, 1979. A hearing officer determined the appropriate bargaining unit on February 28, 1979, and directed that an election be held. Rolligon subsequently advised the Board's regional director that the union's showing of employee interest was tainted because the organizing campaign had been conducted to a large extent by a Rolligon supervisor. The union withdrew its petition on March 6, 1979, and filed a new petition seeking to represent the same employees. Rolligon moved to dismiss this petition on the ground that a second petition could not be submitted within six months of the first absent a showing of good cause. Rolligon's motion was denied and a second election planned.
The union maintained that it had not known until the date of the first hearing that the person collecting signatures was a supervisor; it sought to have as many employees as possible present at the second hearing to avoid a second "surprise" by the employer about the union's conduct of the campaign. A number of employees expressed concern about employer retaliation if they attended. Union official Haynes informed the employees that, in order to prevent possible reprisals, he would obtain Board subpoenas requiring their attendance.
From March 15 until the day of the hearing on March 20, Haynes distributed twenty subpoenas, usually at the plant entrance. When the employees presented the subpoenas to their foremen to seek time off, company officials informed them that the subpoenas were invalid because they did not provide for witness and mileage fees, but that the company did not wish to prevent them from attending the hearing. The company set up a schedule permitting two employees to leave per hour, but the union convinced the employees to attend en masse.
Because there was considerable confusion about the validity of the subpoenas, Haynes arrived at the plant parking lot to serve additional subpoenas and to answer questions about the subpoenas' validity. Shortly after Haynes arrived, company officials informed him that he was trespassing and ordered him off the property. In response to this order, Haynes replied that he was "acting as an agent of service and explanation of the National Labor Relations Board subpoenas." Haynes then carpooled to the hearing with twenty employees.
After the hearing, Haynes directed the employees to another room. He explained that steps had been taken to prevent reprisals against them for their attendance at the hearing. He also asked employees who had witnessed the altercation in the company parking lot to give statements to the Board investigators.
Because approximately half of the employees attended the meeting, the plant had been forced to shut down for a day. The employer explained to the employees that this shutdown, and the resulting loss of time and money, had been caused by the union. The manager also allegedly made an anti-union speech.
From the forty-one employees who were eligible to vote, twenty-four votes were cast in favor of the union and fifteen cast against it. There were no challenged votes. The company filed timely objections to the election alleging that the union had interfered with the conduct of the election by its misuse of Board subpoenas and Board offices and by its misrepresentation to employees serving those subpoenas. The union claimed that the Rolligon manager's allegedly anti-union speech made on the day after the hearing and the company's interference with the subpoenas constituted unfair labor practices.
The ALJ found that the union had abused Board processes by misusing the subpoenas in order to give the employees the impression that the union was strong and endorsed by the Board, and that the organizer had in fact misrepresented his status vis-a-vis the Board. The ALJ also found that Rolligon's interference with the subpoenas was an unfair labor practice, but that the post-hearing speech was not. He recommended that the election be set aside.
Rolligon, the union, and the general counsel all filed exceptions to the ALJ's decision. The Board overruled the ALJ and held that while the union's conduct with respect to the subpoenas was improper, there had been no interference with the election sufficient to warrant setting it aside. The Board also concluded that the company's post-hearing speech was coercive and a violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1). 1 The Board rejected the ALJ's recommendation and certified the union as the exclusive bargaining representative of the company's employees.
Following certification, Rolligon refused the union's request to engage in collective bargaining. The union charged that Rolligon's refusal to bargain was an unfair labor practice. Rolligon admitted its refusal to bargain, but denied the validity of the Board's certification of the union. 2 The Board granted the general counsel's motion for summary judgment, finding that Rolligon had committed an unfair labor practice, and requiring Rolligon to cease and desist from interfering with the employee's section 7 rights, 29 U.S.C. Sec. 157, and requiring the company to bargain with the union.
Although this case comes before us on a petition for enforcement of the Board's bargaining order, we are essentially asked to overturn the Board's certification of the union as the employees' collective bargaining representative. We note at the outset that Congress has entrusted the Board with wide discretion in the conduct and supervision of representation elections and the Board's decision warrants special respect by reviewing courts. NLRB v. A.J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946). Our review is limited to the question whether the Board has reasonably exercised its discretion, and as long as the Board's decision is reasonable and based upon substantial evidence in the record considered as a whole, our view of the evidence is immaterial. Contract Knitter, Inc. v. NLRB, 545 F.2d 967, 971 (5th Cir.1977); NLRB v. Golden Age Beverage Co., 415 F.2d 26, 29 (5th Cir.1969). 3 On the other hand, we cannot abdicate our responsibility to make certain "that the Board [has kept] within reasonable grounds," Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951), and that the Board's decision is reasonably consistent with its earlier decisions. NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir.1979); see also Monmouth Medical Center v. NLRB, 604 F.2d 820, 823 (3d Cir.1979). The issue in this case is whether the Board's refusal to set aside the election is consistent with its earlier decisions concerning abuse of its own processes. We conclude that it is.
There is no doubt that the burden is on the party seeking to overturn an election to establish that the election was not fairly conducted. Gould, Inc. v. NLRB, 610 F.2d 316, 318 (5th Cir.1980). Further, Rolligon's task is made more difficult in this case by the union's wide margin of victory. See Vicksburg Hospital, Inc. v. NLRB, 653 F.2d 1070, 1076 (5th Cir.1981); NLRB v. Claxton Manufacturing Co., 613 F.2d 1364, 1366 (5th Cir.), modified, 618 F.2d 396 (5th Cir.1980); NLRB v. Sumter Plywood Corp., 535 F.2d 917, 924 (5th Cir.1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1105, 51 L.Ed.2d 538 (1977); but see NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 458 n. 1 (1st Cir.1962) (). 4
Rolligon maintains that the Board applied the wrong test in rejecting the ALJ's recommendation that the election be set aside. The company claims that it had only to demonstrate that the union's misuse of the subpoenas 5 and Board facilities had a tendency to mislead the workers into believing that the Board had endorsed the union, see Monmouth Medical Center, supra, but that the Board incorrectly required a showing of impact on the...
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