PPG Industries, Inc. v. N.L.R.B., 391

• Decision Date: 16 February 1982
• Docket Number: I,No. 81-1329,No. 391,391,81-1329
• Citation: 671 F.2d 817
• Parties: 109 L.R.R.M. (BNA) 2721, 93 Lab.Cas. P 13,243 PPG INDUSTRIES, INC., Lexington Plant, Fiber Glass Division, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Teamsters Local Unionntervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 817

671 F.2d 817

109 L.R.R.M. (BNA) 2721, 93 Lab.Cas. P 13,243

PPG INDUSTRIES, INC., Lexington Plant, Fiber Glass Division Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Teamsters Local Union No. 391, Intervenor.

No. 81-1329.

United States Court of Appeals Fourth Circuit.

Argued Nov. 4, 1981.

Decided Feb. 16, 1982.

Richard C. Hotvedt, Washington, D.C. (Susan S. Sauntry, Donald L. Havermann, Morgan Lewis & Bockius, Washington, D.C., R. Harvey Chappell, Jr., Christian, Barton, Epps, Brent & Chappell, Richmond, Va., Hugh M. Finneran, Pittsburgh, Pa., on brief), for petitioner.

Daniel R. Pollitts, Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Washington, D.C., on brief), for respondent.

Jonathan G. Axelrod, Washington, D.C. (Hugh J. Beins, Axelrod & Osborne, P.C., Washington, D.C., on brief) for intervenor.

Before HAYNSWORTH, Senior Judge, and MURNAGHAN and CHAPMAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

PPG Industries, Inc. petitions to review and set aside an order of the National Labor Relations Board to bargain with Teamsters Local 391. The Union has intervened; the NLRB cross-petitions for enforcement of its bargaining order. ¹ We deny enforcement of the NLRB's order.

The Union filed its representation petition on March 27, 1978. Pursuant to a Decision and Direction of Election, the NLRB ordered a secret ballot election for July 6 and 7, 1978. The Union won the election by a vote of 698 to 639 with 24 challenged ballots and 3 void ballots. ²

PPG timely alleged thirty-one objections to the election results. The NLRB Regional Director recommended that each objection be overruled and that the Union be certified. After receiving PPG's exceptions to the Regional Director's Supplemental Decision, the NLRB directed that a hearing be held on Objections 3 (economic coercion), 4 (threats of personal and property harm) and 29 (display of toy guns) and denied PPG's other objections.

After a nine-day hearing, the Hearing Officer made findings of fact and recommended that Objections 3, 4 and 29 be overruled. In its review of the Hearing Officer's conclusions, the NLRB adopted his findings and recommendations. The Board then certified the Union as the employees' representative.

In order to challenge the validity of the election, PPG refused to bargain with the Union. After the Union brought an unfair labor practice charge, the NLRB found that PPG had refused to bargain with the Union, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, and ordered PPG to bargain with the Union. The central question presented is whether the certification of the Union as the employees' bargaining representative was proper.

The most troublesome issue is whether the actions of the In-Plant Organizing Committee (IPOC) members claimed by PPG to constitute improper behavior should be chargeable to the Union. ³ The Hearing Officer concluded that Objections 3 and 4 should be overruled on the grounds of lack of an agency relationship between the Union and IPOC members. He noted, however, that he would recommend that the Objections be sustained if the IPOC members involved had indeed been found to be agents of the Union. ⁴

With respect to economic coercion, many PPG witnesses testified at the Hearing that IPOC members made statements threatening disparate economic treatment unless employees became members of the Union. The objectional behavior alleged in Objection 4 included five credited situations in which IPOC members threatened other employees with physical or property harm. One male IPOC member asked a female employee, who had recently revoked her union card, if she knew what happened to turncoats. He told her they "fall down the scrap shoot (sic)." Another male IPOC member threatened another female pro-company employee. He told her that "(T)here are women riding by themselves that are going to get it, you had better watch out.... (Y)ou will feel funny if you go out and your tires are cut, or your home burned." Another IPOC member identified himself as such to a pro-company employee and told the pro-company employee that "they ought to stand (him) up against the wall and shoot (him) because of (his) beliefs against the Union." Another pro-company employee testified that a pro-Union employee, believed to be an IPOC member, threatened that "if we lose this election, we're going to whip your ass." The testimony indicated that a number of supporters for both sides were in the area at the time of the threats. Finally, a male IPOC member threatened a female employee that if she crossed a picket line she would find her tires cut and her windows "busted".

The IPOC consisted of over 300 of the 1,400 employees eligible to vote. Employees became IPOC members if they signed a paper provided by the Union consenting to have their names submitted to PPG. No special insignia was worn by IPOC members to set them apart from other workers and exclusive meetings of the IPOC were not held.

IPOC members, at the request of the Union organizer, solicited support for the Union, not only at the plant, but also on occasion at employees' homes. IPOC members were asked to distribute Union literature (which was provided by the Union), to voice and demonstrate support for the Union, and to occasionally transport membership cards to the Union's office in Greensboro, North Carolina. Members were not, however, reimbursed for expenses nor did they receive any other remuneration from the Union. Significantly, the Union Organizer, Ms. Saporta, asked the IPOC members to be the Union's "eyes and ears" in the plant and to report on events which occurred in the plant during the election campaign.

At least seven IPOC members lent their names to a pro-Union handbill and another handbill prepared by the Union Organizer reported the activities of "our employee committee." On at least one occasion, an IPOC member relayed a message from the Union Organizer to other IPOC members directing them to refrain from distributing a particular handbill. Furthermore, on at least one occasion after some employees had sent letters to the Union attempting to withdraw their applications for membership, an IPOC member contacted them and asked them to reconsider.

An official Union representative (Ms. Saporta or another representative of the Union) was at the front gate of the plant at least once a week prior to the election and daily during the last ten days of the campaign. A handbill notified the employees that the Union had opened up a temporary office at a local motel, listed the phone number and noted that a Union representative would be there to answer questions. A Union representative was apparently present whenever handbills were distributed. There was one incident in which one employee allegedly threatened another employee in Ms. Saporta's presence. Testimony indicated that Ms. Saporta immediately disavowed that threat. Based on those facts, the Hearing Officer reached the conclusion that the IPOC members were not agents of the Union.

The seminal case in this Circuit on the agency question is NLRB v. Georgetown Dress Corp., 537 F.2d 1239 (4th Cir. 1976). The holding there virtually compelled a finding contrary to the one made by the Hearing Officer in the instant case. Apparently the Hearing Officer realized the status of Georgetown Dress as an obstacle to the result he desired to reach for he expressly refused to apply Georgetown Dress in making his determination as to whether the IPOC members were agents of the Union. ⁵ Yet the Hearing Officer was obliged by law to recognize that Georgetown Dress was binding authority in the Fourth Circuit and as such he was not free to disregard it. Personal predilection must defer to the law if the impartiality to which the parties are entitled is to prevail.

A reading of the Hearing Officer's findings has left us with the clear impression that we are not presented with a case of two mutually independent allies supporting a common cause, the Union on the one hand, the IPOC employees on the other, but rather one group acting as an alter ego for the other. If we were to imagine a group performing for the employer as the IPOC here did for the Union, it strains credulity to say that we would accept a finding that the employer was not to be held accountable for what the group of workers did. ⁶ Whether the IPOC members represented the Union in other respects, their actions were clearly chargeable to the Union insofar as organization and campaigning were concerned.

In cases such as this, we do not deal with hypertechnicalities of the law of agency, but rather with the real world and the perhaps sui generis status enjoyed by groups such as the IPOC in representation election activities. The question is not so much one of "agency," in its purest sense as it is of whether the Union should be held accountable for the employee group's activities. See, e.g., Methodist Home v. NLRB, 596 F.2d 1173, 1182 (4th Cir. 1979); NLRB v. Urban Telephone Corp., 499 F.2d 239, 243-44 (7th Cir. 1974). The Hearing Officer has wrongly accepted as dispositive evidence that the Union and the IPOC each did some things without engaging the help of the other as proof of non-agency. ⁷ A person may be an agent to do some things though not an agent to do everything for a principal. We are satisfied that the Union's accountability was unambiguously made out, leaving no unresolved issue of fact for the Hearing Officer. That was likewise the thrust of Georgetown Dress. That is why the Hearing Officer felt obliged to strain to circumvent it.

In ruling that the IPOC members were not agents of the Union, the Hearing Officer cited the NLRB's decision in Georgetown Dress, ⁸ a position we specifically rejected in denying enforcement of the NLRB's...