NLRB v. Urban Telephone Corporation
Decision Date | 17 June 1974 |
Docket Number | No. 73-1094.,73-1094. |
Citation | 499 F.2d 239 |
Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. URBAN TELEPHONE CORPORATION, Respondent. |
Court | U.S. Court of Appeals — Seventh Circuit |
Peter G. Nash, Gen. Counsel, William M. Bernstein, Attys., N. L. R. B., Washington, D.C., for petitioner.
Robert K. Drummond, Urban Telephone Corp., Milwaukee, Wis., for respondent.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and CHRISTENSEN, Senior District Judge.*
The NLRB has applied to this court pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), for enforcement of its October 26, 1972 order issued against the respondent Urban Telephone Corporation hereinafter referred to as the company. The decision is reported at 199 NLRB No. 119.
The company is a Wisconsin corporation which provides telephone service. The union, International Brotherhood of Electrical Workers, AFL-CIO, petitioned the NLRB for certification as the bargaining representative for a stipulated unit of employees. On April 16, 1971, the NLRB conducted a secret ballot election. Of the thirty-three eligible voters, seventeen cast ballots in favor of the union and fifteen voted against. The company filed three objections to conduct affecting the election results:
The Regional Director after an administrative investigation recommended that the second and third objections be overruled and that a hearing be held on the company's first objection. The Board adopted those recommendations. A hearing officer then conducted a hearing on the first objection, found it to be without merit, and recommended that it be overruled and that a certification representative be issued to the union. On April 3, 1972, the Board, with one member dissenting, overruled the objections to the hearing officer's report filed by the company and adopted his findings and recommendations and certified the union as the exclusive bargaining representative. 196 NLRB No. 6. The company refused to bargain with the union and thereafter the Board's General Counsel issued a complaint that the company had committed unfair labor practices in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1), by refusing to bargain. The company answered and raised the same objections as it had previously raised. The Board found an unlawful refusal to bargain and ordered the company to bargain with the union upon request and to post appropriate notices. 199 NLRB No. 35. This application for enforcement followed.
The company raises three issues: (1) the Board failed to consider relevant evidence dealing with the second and third objections and denied due process of law to the company by refusing to order a hearing on these objections; (2) the Board abused its discretion by holding that the threats and coercion referred to in the first objection did not warrant setting aside the election; and (3) the Board failed to consider the combined effect of the acts alleged in the three objections.
Because of our resolution of the second issue, it is unnecessary to reach the other issues. The company alleged that George Rodriguez, an employee, had threatened on a number of occasions prior to the election to harm other employees. The conclusions of the hearing officer which were adopted by the Board were: (1) that Rodriguez was not an agent of the union and his statements therefore, were not attributable to the union, and (2) that the threats did not create a general atmosphere of fear and reprisal rendering the free choice of representatives impossible.
Rodriguez had been employed by the company for over three years as a lineman and repairman. He is physically large, one of the largest men in the bargaining unit. He had a reputation for fighting, although the company did not know of any problems that he had with fellow employees.
Rodriguez initiated the contact with the union and asked the union organizer, Marvin Devries, to speak to the employees about the union. Devries and the union business manager, De Wayne Wruck, testified that Rodriguez did not hold any official position in the union and was not authorized to speak on its behalf. He was, however, one of three men selected by the union to be a "contact man." As "contact man" he received no benefits from the union but served on a volunteer basis. He acted as a liaison between the employees and the union in order to relay information. At the request of other employees, the union replaced Rodriguez as contact man shortly before the election. Rodriguez did ask the company for permission to speak on behalf of the union at one meeting of the employees in order to invite them to attend a later scheduled union meeting. But Devries and James Conway, the union lawyer, had informed the employees at one of the meetings that only they were authorized to speak on behalf of the union.
Based on Rodriguez' affidavit and the testimony of John Schafer, the company vice president, which he found to be truthful, the hearing officer found four incidents involving Rodriguez in threats to other employees.
The first incident occurred two days before the election at a company meeting of all the employees. At the meeting, Schafer overheard Rodriguez tell a group of four or five employees that if the union did not get in, and he found out who voted against the union, there would be some "smashed faces." The hearing officer concluded that the statement did not interfere with the election because the employees apparently reasoned that Rodriguez could not carry out his threat. In reaching that conclusion, the hearing officer relied on Schafer's failure to respond, on the lack of complaint from any employee, and on the inability of Rodriguez to carry out his threat due to the election being by secret ballot.
In the second incident, Rodriguez admitted that on the same day at a different location he told a group of at least three employees that "he would kick ass and take names if we the union don't win the election." Rodriguez stated that all the people that he spoke with were good friends and prounion although he was not certain who was present. Two days after the election, an employee came to Schafer's office and told him he had overheard the statement. He asked to speak to Schafer in confidence about the matter. Schafer testified that the man was definitely afraid. The hearing officer discredited the incident concluding that Rodriguez' statement, made to good friends, was not sufficient to prevent or impair a free and unfettered choice of representatives.
The third incident occurred in early May. Another employee approached Schafer and told him in confidence that he was under a lot of pressure prior to the election to attend union meetings and that Rodriguez and an unidentified person told him that if he did not go, he would be in "big trouble." The employee told Schafer that he did not report this earlier since he did not think that there was anything the company could do.
The hearing officer...
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