N.L.R.B. v. Hood Furniture Mfg. Co.
| Decision Date | 27 August 1991 |
| Docket Number | No. 90-4309,90-4309 |
| Citation | 941 F.2d 325 |
| Parties | 138 L.R.R.M. (BNA) 2338, 56 Fair Empl.Prac.Cas. (BNA) 1383, 57 Empl. Prac. Dec. P 41,037, 120 Lab.Cas. P 10,950 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOOD FURNITURE MANUFACTURING COMPANY, A Wholly Owned Operating Division of Hood Industrial Park, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Collis Suzanne Stocking, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Aileen Armstrong, Deputy Assoc. Gen. Counsel, Robert J. Englehart, N.L.R.B., Washington, D.C., for petitioner.
Timothy W. Lindsay, Louis A. Fuselier, Jerrald L. Shivers, Fuselier, Ott, McKee & Walker, Jackson, Miss., for respondent.
Hugh Frank Malone, Region 15, N.L.R.B., New Orleans, La., for other interested parties.
Application for Enforcement of an Order of the National Labor Relations Labor Board.
Before WISDOM, KING and BARKSDALE, Circuit Judges.
The National Labor Relations Board (Board) petitions this court for enforcement of its order of November 21, 1989, directing Hood Furniture Manufacturing Company (Company) to bargain with the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO (Union). The Board found that the Company violated § 8(a)(1) and (5) of the National Labor Relations Act (NLRA) (29 U.S.C. § 158(a)(1) and (5)) by refusing to recognize and bargain with the Union following the Union's certification as the exclusive bargaining representative of an appropriate unit of the Company's employees. The Company's refusal to bargain is motivated by a desire to obtain judicial review of the Board's failure to sustain the Company's objections to the representation election, and, alternatively, the Board's refusal to order a full evidentiary hearing on the Company's objections. Finding that substantial evidence in the record supports the Board's decision to overrule the Company's election objections and certify the Union, and that the Board did not unreasonably or arbitrarily deny an evidentiary hearing, we grant enforcement.
On November 7, 1988, the Union filed a representation petition with the Board seeking certification as the collective-bargaining representative for a unit of the Company's employees. The Company's work force is approximately 96% black. Pursuant to a Stipulated Election Agreement between the parties, a secret ballot election was conducted on January 19, 1989, for the purpose of determining whether the Company's employees desired Union representation. Following the election, the tally of ballots showed 104 for Union representation and 103 against Union representation. 1
The Company timely filed twelve objections to the election, ten of which are before this court on appeal. The Board's Regional Director conducted an administrative investigation of the Company's objections pursuant to 29 C.F.R. § 102.69(c), and issued a report recommending that all objections be overruled in their entirety and that the Union be certified as the bargaining unit representative.
The Company filed timely exceptions to the Regional Director's Report, accompanied by nine affidavits and two supplemental affidavits, requesting that the election be set aside and a new election ordered. In the alternative, the Company requested that the Board order a hearing on its objections. The Board adopted the Regional Director's recommendation that the Company's objections be overruled and certified the Union.
Following the Union's certification, the Company has refused to bargain with it. The Union filed an unfair labor practices charge contending that the Company's refusal to bargain violated § 8(a)(1) and (5) of the NLRA. The Board's Regional Director issued a complaint based on this charge. The Company answered, admitting its refusal to bargain but denying the validity of the representation election. The Board granted the General Counsel's motion for summary judgment against the Company, finding that all issues presented either had been or could have been litigated in the underlying representation proceeding, and that the Company offered no new evidence nor alleged special circumstances. Accordingly, the Board found that the Company's refusal to bargain violated § 8(a)(1) and (5) of the NLRA.
The Board issued an order requiring the Company to cease and desist from unfair labor practices and directing the Company to bargain with the Union upon request, to embody any understanding reached in a signed agreement, and to post appropriate notice. The Board petitions this court for enforcement of its order pursuant to 29 U.S.C. § 160(e).
The issues to be decided on appeal are (1) whether the Board's failure to sustain the Company's objections in finding the Company violated § 8(a)(1) and (5) of the NLRA is supported by substantial evidence in the record; and (2) whether the Board acted unreasonably or arbitrarily in denying the Company a full evidentiary hearing on its objections to the certification election.
Enforcement of the Board's order depends on the validity of the Board's earlier decision to certify the Union. Congress has given the Board wide discretion in the conduct and supervision of representation elections, and the Board's decision warrants considerable respect from reviewing courts. NLRB v. A.J. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946); NLRB v. Rolligon Corp., 702 F.2d 589, 592 (5th Cir.1983). Our review is limited to determining whether the Board has reasonably exercised its discretion, and if the Board's decision is reasonable and based upon substantial evidence in the record considered as a whole, our inquiry is at an end. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); NLRB v. New Orleans Bus Travel, Inc., 883 F.2d 382, 384 (5th Cir.1989); Rolligon, 702 F.2d at 592; NLRB v. Klingler Elec. Corp., 656 F.2d 76, 85 (5th Cir.1981). Representation elections are not lightly set aside. NLRB v. Monroe Auto Equip. Co., 470 F.2d 1329, 1333 (5th Cir.1972), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155 (1973). There is a strong presumption that ballots cast under specific NLRB procedural safeguards reflect the true desires of the employees. Contract Knitter, Inc. v. NLRB, 545 F.2d 967, 971 (5th Cir.1977); NLRB v. Zelrich, 344 F.2d 1011, 1015 (5th Cir.1965). Therefore, in challenging a representation election, the objecting party bears the entire burden of adducing prima facie facts sufficient to invalidate the election. Klingler, 656 F.2d at 79. Conclusory allegations or proof of mere misrepresentations or physical threats are insufficient to meet this heavy burden; specific evidence of specific events is required showing not only that the acts occurred, but also that they "interfered with the employees' exercise of free choice to such an extent that they materially affected the results of the election." NLRB v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir.1969).
On appeal, the Company alleges in five of its objections that the Union or its advocates engaged in improper electioneering and purposely created an atmosphere of fear and coercion. The Company complains that the Board agent who conducted the election permitted two terminated employees, Readus and Jackson, to electioneer in the immediate area of the voting booth and to make improper comments to employees who were waiting to vote. Affidavits stated that after voting, Readus and Jackson spoke with the Union observer near the doorway for a period of time somewhere between one and five minutes (affidavits varied). According to the affidavit of employee Kyle Renfrow, Readus and Jackson were laughing and "cutting up" when he went in to vote. Jackson then approached Renfrow and stated, "You know damn well the way you're supposed to vote," and told another voter the same and that they should "stick together." In his affidavit, Renfrow stated, "I voted the way I wanted to." Readus and Jackson had been told several times to leave the polling place, and finally left thirty seconds to one minute after the Board agent first instructed them to do so. The Company also complains that after leaving the polling place, Readus, Jackson, and another terminated employee walked around the plant speaking with various employees who had not yet voted, until they were escorted out of the plant by Company representatives. The Company presented no evidence as to the content of any of the conversations of the terminated employees.
Weighing all evidence in a light most favorable to the Company's position, the Regional Director found no violation of the Milchem rule, which requires the invalidation of an election when prolonged conversations occur between the parties to the election and employees waiting in line to vote. Milchem, Inc., 170 NLRB 362 (1968); see also NLRB v. Carroll Contracting & Ready-Mix, 636 F.2d 111, 113 (5th Cir.1981). He determined that the exchanges between Jackson and the two voters could not be considered "prolonged," and, furthermore, that there was insufficient evidence to establish that Jackson was an agent of the Union. Milchem only prohibits contact between an agent or representative of a party and an employee-voter. Klingler, 656 F.2d at 87-88. Finding the statements made by Jackson in the polling area were not fear-inspiring threats, but ambiguous at best, the Regional Director deemed them insufficient to invalidate the election. As to the laid-off employees visiting the working area after voting, the Regional Director found the Company produced no evidence of electioneering nor identified any employees in the plant with whom Readus or Jackson had spoken. Accordingly, the Regional Director found these allegations insufficient to destroy the atmosphere necessary for a free choice in the election and thus to warrant setting the election...
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...guided by the "strong presumption" that representation elections "reflect the true desires of the employees." NLRB v. Hood Furniture Mfg. Co. , 941 F.2d 325, 328 (5th Cir. 1991). Therefore, the party challenging the outcome "bears the entire burden of adducing prima facie facts sufficient t......
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...787 (5th Cir.1997). The opposing party bears the burden to show “facts sufficient to invalidate the election.” NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir.1991). “Moreover, an election may be set aside only if the objectionable activity, when considered as a whole, either te......