Overnite Transp. Co. v. N.L.R.B.
| Decision Date | 07 April 1998 |
| Docket Number | No. 97-1387,97-1387 |
| Citation | 140 F.3d 259 |
| Parties | 157 L.R.R.M. (BNA) 2931, 329 U.S.App.D.C. 297 OVERNITE TRANSPORTATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. International Brotherhood of Teamsters, Local 728, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
John N. Raudabaugh argued the cause for petitioner, with whom Christopher A. Johlie and Kenneth F. Sparks, Chicago, IL, were on the briefs.
Jill A. Griffin, Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda Sher, Associate General Counsel, South Euclid, OH, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick L. Cornnell, Jr., Supervisory Attorney, Alexandria, VA, were on the brief.
James D. Fagan, Jr., and Robert S. Giolito, Atlanta, GA, were on the brief for intervenor International Brotherhood of Teamsters, Local 728.
Before: WALD, SILBERMAN and ROGERS, Circuit Judges.
This dispute arose out of a union election conducted at the Atlanta Service Center of Overnite Transportation Company ("Overnite") on April 17, 1995, by the National Labor Relations Board ("NLRB" or "Board"). The International Brotherhood of Teamsters, Local 728 ("union") won the election by a wide margin. Nonetheless, Overnite refused to bargain with the union on the grounds that the union had engaged in unlawful pre-election and election day video and photographic surveillance of employees and unlawful electioneering, thereby destroying the conditions required for a free and fair election. In Overnite's final appeal before the Board, the Board granted the NLRB's motion for summary judgment, holding that the union was the properly elected bargaining agent for employees at Overnite's Atlanta facility and that Overnite violated sections 8(a)(1) and (5) of the National Labor Relations Act ("Act") when it refused to bargain with the union. Overnite filed a petition for review with this court, arguing for a remand to the Board with instructions to decide the case in light of its forthcoming decision in two consolidated cases, Flamingo Hilton-Reno, Case No. 32-CA-14378 and Randell Warehouse of Arizona, Inc., Case No. 28-RC-5274, which Overnite claims address issues substantially similar to the case at hand. Alternatively, Overnite asks this court to deny enforcement of the Board's order, thus permitting a new election. We hold that the pre-election and election day videotaping and photographing of Overnite employees did not constitute unlawful surveillance sufficient to invalidate the union election, that there was no unlawful electioneering by the union, and that the Board reasonably refused to delay certification of the union. Accordingly, we deny Overnite's petition for review and grant the Board's cross-petition for enforcement.
Overnite points to four separate instances in which it argues agents of the union engaged in impermissible conduct. The first incident occurred approximately two weeks before the election. John Blow, an Overnite employee, attended a meeting at Local 728's union hall. Blow, who was procompany, testified that he saw Local 728's Secretary videotaping employees as they left the union hall. See Transcript at 377-79, 405-06 (May 9, 1996) (testimony of John Blow). He also testified that no one explained why the Secretary was videotaping the attendees. See id. at 378.
A second incident occurred on Tuesday, April 11. Employee Parker Roberts testified that Overnite President Jim Douglas and Overnite Vice President Paul Heaton visited the Atlanta Service Center. See Transcript at 466-67 (May 9, 1996) (testimony of Parker Roberts). During the visit, union supporters took photographs of Douglas, Heaton, and employees with whom they spoke, including Roberts. See id. at 467. Roberts testified that he believed that the photographs would be used to intimidate employees who supported the company. See id. at 467-68.
A third incident occurred in the late afternoon and early evening of Friday, April 14, 1995. Three employees testified that when they arrived for work at the Atlanta facility, they saw a crowd of union supporters gathered in the driveway area, a few of whom were taking pictures and one of whom was using a videocamera. That same day, several employees gathered in the break room of Overnite's Atlanta facility to discuss an upcoming union election. After a "heated argument," employee Dennis McConley, a member of the Union Organizing Committee who had actively campaigned for the union and who was later elected a union steward, left the break room and returned with a video camera. McConley did not explain the purpose of the videotaping, and there is no evidence that anyone asked why he was videotaping. Two pro-company employees, John Sibley and Tim Carter, left the room soon after McConley entered with the videocamera because they were concerned that the videotape would be used to retaliate against them for taking an anti-Teamster position. See Transcript at 273-79 (May 9, 1996) (testimony of John Sibley); Transcript at 518-23 (May 9, 1996) (testimony of Tim Carter).
Finally, Overnite claims that on the day of the union election, there was a crowd of about 100 union supporters, including International Organizer Keith Maddox, Teamster President Ron Carey, and the President of Local 728, gathered in the facility's driveway area. See Brief of the Petitioner at 13-14. Overnite charges that employees were subjected to intimidation, coercion, surveillance, and electioneering by a group of supporters who held a "raucous" rally within earshot of the polling station and within sight of employees waiting to vote. See id. at 14-15. Members of the pro-union crowd were seen taking videos and photographs, while Maddox was present. See id. at 16-17. At least one employee was concerned that the union would use the video and photographs to retaliate against pro-company employees. See id. at 17. At no time, Overnite argues, did the union provide an explanation to employees for the videotaping and photography. See id. at 18.
In the April 17, 1995 election, 136 employees voted for union representation, and 100 voted against; there were only four challenged ballots. See Tally of Ballots at Joint Appendix ("J.A.") 6-7. Overnite filed 12 objections to the election. See Employer's Objections to Conduct Affecting the Results of the Election (April 22, 1995). The objections included allegations that the union had engaged in unlawful surveillance, coercion, intimidation, and harassment by videotaping employees known to be company supporters in the break room on April 14, 1995 (Objection 1), had engaged in similar conduct on election day by photographing employees as they entered and exited the company's premises (Objection 4), and had engaged in unlawful electioneering within the no-electioneering zone (Objection 5). See id. The Regional Director conducted an administrative investigation of the objections pursuant to which he issued a Supplemental Decision and Certification of Representative overruling all of the objections and certifying the union as the employees' collective-bargaining representative. Soon thereafter, Overnite filed a request for review of the decision with the Board. By order dated March 20, 1996, the Board remanded Objections 1, 4, and 5 for a hearing, but denied the request for review in all other respects.
On May 31, 1996, the Hearing Officer issued his Report and Recommendations on Objections, in which he found that the objections were without merit and recommended that the Board dismiss them and certify the election results. Overnite filed exceptions to the Hearing Officer's Report. Nonetheless, on February 7, 1997, the Board adopted the Hearing Officer's findings and recommendations and certified the union as the exclusive bargaining representative for Overnite's Atlanta employees. Overnite filed a Motion for Reconsideration in light of the Board's pending consideration of two cases, Flamingo Hilton-Reno, Case No. 32-CA-14378, 1996 WL 293527 and Randell Warehouse of Arizona, Inc., Case No. 28-RC-5274 (June 12, 1996), in which it claimed the Board was expected to clarify the standards for videotaping and photography during union elections. The Board denied the motion on March 20, 1997.
By letter dated February 12, 1997, Overnite notified the union that it would not recognize or bargain with it. See J.A. 122A. The union subsequently filed an unfair labor practice charge alleging that the company's refusal to bargain violated sections 8(a)(1) and (5) of the Act, 29 U.S.C. §§ 158(a)(1) and (5). See J.A. 123. One month later, the Board issued a complaint alleging that Overnite violated sections 8(a)(1) and (5) of the Act. Overnite answered and the General Counsel moved for summary judgment. On May 30, 1997, a three-member panel of the Board issued its Decision and Order concluding that Overnite's refusal to bargain with the union violated sections 8(a)(1) and (5) of the Act. Accordingly, it ordered Overnite to bargain with the union upon request, embody an understanding in a signed agreement, and post an appropriate notice. See Overnite Transp. Co., 323 N.L.R.B. No. 145 (May 30, 1997). Overnite filed its Petition for Review of the Board's Decision and Order on June 10, 1997. The Board filed a cross-application for enforcement of its order.
Overnite claims that the bargaining order issued by the Board should not be enforced because pre-election and election day video and photographic surveillance destroyed the conditions required for a free and fair election. Overnite argues that the...
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