N.L.R.B. v. Service American Corp.
| Decision Date | 07 March 1988 |
| Docket Number | No. 86-3114,86-3114 |
| Citation | 841 F.2d 191 |
| Parties | 127 L.R.R.M. (BNA) 3065, 56 USLW 2587, 108 Lab.Cas. P 10,366 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SERVICE AMERICAN CORPORATION, a subsidiary of Allegheny Beverage Corporation, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
W. Christian Schumann, Gordon B. Scott, NLRB, Washington, D.C., for petitioner.
Leslie Robert Stellman, John W. Kyler, Benjamin W. Hahn, Littler, Mendelson, Fastiff & Tichy, Baltimore, Md., for respondent.
Before BAUER, Chief Judge, CUDAHY, and POSNER, Circuit Judges.
We consider in this case whether the National Labor Relations Board (the Board) must conduct an evidentiary hearing on Service America Corporation's (SAC) allegations of union misconduct in a representative election. We hold that it must.
SAC is a full-line vending company doing business in Indianapolis, Indiana. On July 2, 1985, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 135 (the Union) petitioned the Board's Indianapolis Regional Office for certification as the official bargaining representative of forty-seven SAC food service and warehouse employees. Pursuant to a Stipulation for Certification Upon Consent Election approved by the Board's Regional Director, the Board's Regional Office held an election on September 5, 1985. The Union won. Twenty-four employees voted for union representation; twenty voted against. 1 SAC, however, filed objections to the election, alleging, inter alia, that agents of the Union coerced and threatened eligible voters before the election. 2 In support of its objections, SAC submitted affidavits, taken from a number of its employees and the branch manager of its Indianapolis facility, to the Board's Regional Director.
The Director conducted an investigation, during which he obtained additional testimony from some of SAC's witnesses and others. On October 11, 1985, the Regional Director issued a report finding SAC's allegations without merit and recommending that the Board certify the Union as the employees' collective bargaining representative. SAC immediately filed exceptions to the report, urging the Board to set aside the election or, alternatively, to order a hearing on its objections. The Board, however, adopted the Regional Director's report and recommendation, overruled SAC's objections, and certified the Union as the employees' representative.
SAC then refused to bargain with the Union, its only avenue to judicial review of the Board's certification of the Union. 3 The Board's General Counsel thereafter issued an unfair labor practice complaint, alleging that SAC violated section 8(a)(5) and (1) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(5) and (1), by refusing to bargain. In its answer, SAC admitted refusing to bargain with the Union, but claimed that its refusal was not unlawful because the Board's certification was invalid. On May 16, 1986, the General Counsel filed motions to strike portions of SAC's answer and for summary judgment, arguing that SAC's defenses had already been litigated and decided. On May 24, 1986, the Board transferred the proceeding to itself and issued a notice to SAC to show cause why the General Counsel's motion for summary judgment should not be granted. SAC contested the motion on a number of grounds. On August 15, 1986, the Board denied the General Counsel's motion to strike, but granted the motion for summary judgment, finding that SAC's defenses to the unfair labor practice complaint were or could have been litigated in the earlier representation proceeding. The Board also found that SAC had not offered to adduce any newly discovered or previously unavailable evidence, nor alleged any special circumstances requiring the Board to reexamine its decision in the representation proceeding. The Board ordered SAC to bargain with the union and now seeks enforcement of that order.
SAC's allegation that agents of the union coerced and threatened eligible voters during the pre-election campaign is embodied in the affidavits of six SAC employees, identified as Witnesses A through F. SAC's principal witness, A, testified that, before the election, he expressed doubts about the benefits of union representation to employee Chris Mathes in the presence of other employees, at least one of whom was an eligible voter, when Mathes angrily retorted, A also testified that another Union supporter, employee Rodney Burns, told him before the election that "people that are against the union can be terminated or hurt." According to A, Mathes and Burns were two of three "principal Union supporters" at SAC's Indianapolis facility. In addition, A testified that he signed an authorization card solicited by Burns before the election, and that he believed Burns had solicited authorization cards from other employees as well. Witnesses B, C, D, E, and F, all testified that A gave varying descriptions of Burns's and Mathes's statements to them before the election. 4
In addition to these affidavits, SAC also submitted to the Director a letter dated June 26, 1985, signed by the Union's Business Representative and addressed to SAC, advising SAC that Burns was one of a group of employees that had authorized the Union to be his collective bargaining agent. The letter also warned that the Union would consider illegal any action taken against any of the listed employees because of their affiliation with the Union.
In his report and recommendation, the Regional Director rejected outright SAC's assertion that Mathes's and Burns's conduct was attributable to the Union. The Director found "no evidence of any connection between Chris Mathes and the Union whatsoever" and that the "June 26, 1985, letter and Rodney Burns' other activities in the campaign establish[ed] him as no more than one of 15 employees who engaged in the common cause of supporting the union." Noting that conduct of "rank-and-file" employees is judged under a different standard than that of the parties or their agents, the Regional Director determined that "even fully crediting Witness A and assuming that such statements as he alleges on the part of Burns and Mathes were, in fact, made it is not felt that they, unaccompanied by any other evidence of threats or actual physical assaults or vandalism to property, would warrant setting aside the election."
In reaching his conclusion, the Regional Director considered affidavits obtained during his investigation from the Union's Business Representative and Recording Secretary, in which both officials denied assigning Mathes or Burns any role in the pre-election campaign, or even being acquainted with Mathes or Burns. In addition, the Director considered an affidavit obtained from Mathes, in which Mathes denied threatening employee A, and an affidavit from employee X, who A said was present when Mathes threatened him, in which X also denied that Mathes threatened A. The Regional Director also obtained an affidavit from SAC's branch manager in addition to the one submitted by SAC, in which the branch manager stated that, although Burns and Mathes were very vocal in their support of the union at employee meetings during the election campaign, he had no evidence that either Burns or Mathes worked for the Union or received benefits from it.
SAC argues that the Regional Director impermissibly relied on the testimony of the Business Representative, the Recording Secretary, and Mathes in ruling on SAC's objections to the election. The company claims that it was entitled, at the very least, to an evidentiary hearing on the issue whether Mathes and Burns were "agents" of the union and, if so, whether their conduct would then warrant setting aside the election.
A Board-run representation election is presumed valid; the burden is on the objecting party to prove that it was not. NLRB v. Mattison Machine Works, 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455 (1961); NLRB v. Visual Educom, Inc., 486 F.2d 639, 643 (7th Cir.1973). To prevail, the objecting party must show not only that unlawful acts occurred, but that those acts interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election. Rockwell Mfg. Co., Kearney Div. v. NLRB, 330 F.2d 795, 797 (7th Cir.), cert. denied, 379 U.S. 890, 85 S.Ct. 161, 13 L.Ed.2d 94 (1964).
A party challenging a representation election is entitled to an evidentiary hearing on its objections, however, if it raises substantial and material issues of fact sufficient to support a prima facie showing of objectionable conduct. 29 C.F.R. Sec. 102.69(d); NLRB v. Howard Johnson Motor Lodge, 705 F.2d 932, 934 (7th Cir.1983). To meet this burden, the objecting party must allege misconduct sufficient to set aside the election under the substantive law of representation elections and proffer "specific evidence from or about specific people." NLRB v. Douglas County Election Membership Corp., 358 F.2d 125, 130 (5th Cir.1966). Once this burden is met, the Board may not overrule the objections on the basis of an ex parte investigation by the Regional Director. Howard Johnson, 705 F.2d at 934. As the Third Circuit has held,
to obtain an evidentiary hearing, the objector's proffer of evidence must prima facie warrant setting aside the election. The proffer may not be conclusory or vague; it must point to specific events and specific people. On the other hand, an evidentiary hearing is not required when, if all the evidence proferred by the objecting party is accepted as true, no ground is produced which would warrant setting aside the election.
NLRB v. J-Wood/A Tappan Div., 720 F.2d 309, 314 (3d Cir.1983...
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