Thomas Industries, Inc. v. N.L.R.B.
| Decision Date | 09 September 1982 |
| Docket Number | No. 81-1222,81-1222 |
| Citation | 687 F.2d 863 |
| Parties | 111 L.R.R.M. (BNA) 2233, 95 Lab.Cas. P 13,773 THOMAS INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Walter O. Lambeth, Jr., Elarbee, Clark & Paul, Bennet D. Alsher, Atlanta, Ga., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, Jerry Wohlgemuth, N. L. R. B., Washington, D. C., for respondent.
Before CONTIE, Circuit Judge, BROWN, Senior Circuit Judge, and DUMBAULD, Senior U. S. District Judge. *
This appeal involves the question of when and how an employer may poll its employees to determine the majority status of an incumbent union. The National Labor Relations Board found that Thomas Industries, Inc. (the Company) violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., by polling its employees and violated section 8(a)(5) of the Act by refusing to bargain with the incumbent union. In an unrelated matter, the Board also found that the Company violated section 8(a)(1) by verbally warning a union officer for filing what the Company considered to be petty grievances. The Board's opinion appears at 255 NLRB No. 94 (1981).
Based on its findings, the Board issued an order requiring the Company to post a notice stating that the Company would not refuse to bargain with the union, would not coercively poll its employees, and would not verbally reprimand employees or union officials for filing grievances. The Board's order further required the Company to bargain upon request. The Company has petitioned for review and the Board seeks enforcement of its order. For the reasons stated below, we enforce the Board's order only as it relates to the verbal warning.
On February 10, 1977, a secret ballot election was conducted by the NLRB in the Company's plant. By a vote of 52 to 50, the Company's production and maintenance employees selected the Oil, Chemical, and Atomic Workers International Union (the Union) as their exclusive collective bargaining representative. The Union was certified by the NLRB on May 18, 1977. On July 11, 1977, the Company and the Union entered into a collective bargaining agreement effective until January 11, 1980, and thereafter from year to year unless either side provided timely written notice of its desire to amend or terminate.
The first of two incidents involved in this appeal occurred on August 28, 1979. In a grievance meeting, Union vice-president Della Dugger was allegedly given a verbal warning for filing too many petty grievances. One of the grievances involved supervisors doing maintenance work and another involved overtime pay. The Company denied giving any verbal warning to Dugger, contending that any statements made The second incident involved in this appeal was a poll of the employees conducted by the Company on October 19, 1979, to determine whether the Union still represented a majority of the employees. Prior to the poll, the Company president had come to doubt the continuing majority status of the Union. He based this belief on negative employee comments, employee resignations from the Union, resignations by Union officials, and a sharp decrease in the number of employees on Union dues check-off.
were merely part of open, frank, and sometimes heated grievance meetings.
Immediately before taking the poll, the Company president made a "captive audience" speech to the employees. The entire speech is reproduced below:
We have called this meeting today of all production and maintenance employees in order to get your decision as to whether or not you want the Company to continue to deal with the Oil, Chemical and Atomic Workers Union on all matters pertaining to your job.
Many of our employees during this past year have asked why the Company still gives recognition to the Union since so few of the production and maintenance employees have indicated any interest in the Union and approximately 30% of the employees are on check-off. Let me make this point very clear. The only reason that the Company has recognized the Union is because the law has required us to do so. We do not want the Oil, Chemical and Atomic Workers Union here and we think it would be in your best interest if there is no union here. On the other hand, the Company does not want to do anything that would be a violation of the law. You as an individual have the right to vote for the Union if you desire to do so, and the Company respects your rights.
Up until now we have had no choice but to deal with the Union since the law requires us to do so. However, the contract is now about to terminate on January 11, 1980 and you as an individual have the right to decide for yourself now whether or not you want the Company to continue to recognize the Union. That is our purpose in being here today-to determine whether the Union continues to represent a majority of our employees. If the Union fails to poll a majority of the votes cast the Company will no longer recognize the Oil, Chemical and Atomic Workers Union as your bargaining representative at the expiration of this contract. Of course, should the Union receive a majority of the votes cast the Company must by law continue to recognize them as your bargaining agent.
In order to make sure that everyone's rights are protected we are going to let each of you vote a secret ballot. I have asked Mr. James Epps, Attorney, Johnson City, to come here today to handle the election and to count the ballots in your presence. There will be no supervisors or representatives of management present when you vote on this important matter. We ask that you stay in this room and vote one at a time in the first aid room. As soon as you have voted and placed your ballot in the box, you may clock out and go home or stay and see the results. You will be paid for a full days work, and your paychecks will be passed out to you at the time clock. We ask that the second shift wait until last to vote and then return to your work stations. I intend to leave now and will turn this meeting over to Mr. James Epps unless any of you have any questions that you want to ask me before I leave.
Following the Company president's speech, Mr. James Epps, a local attorney hired by the Company to conduct the poll, was introduced. Epps described the voting procedures and then spoke to the employees as follows:
Before you go vote, the Company has asked me to emphasize certain points to each of you:
1. The only purpose in our having this election is to determine whether or not you want this union as your representative.
2. The Company has asked me to tell each of you that no action will be taken against anyone as a result of how you vote. This is your election and you have the legal right to vote however you please.
3. This will be a secret ballot election. No one will ever know how you vote unless you voluntarily tell them.
The Union president also spoke briefly before the poll was taken. The polling was done in the plant cafeteria, the same location used for the 1977 certification election. Each employee was given a simple "Yes" or "No" ballot asking if he wished to be represented by the Union. One at a time employees took their ballots into a small room and marked them. The room had a door which most employees closed at least partially. The employees then deposited their ballots in a sealed box and were free to leave the cafeteria or stay to learn the results. No management members were present during the voting.
When everyone had voted, Epps and the Union observer counted the ballots. The poll results, as stipulated to by the parties, were as follows:
124 eligible voters
112 votes
64 votes against the Union
48 votes for the Union
Based on the results of this poll and the other evidence of loss of support, the Company refused to bargain with the Union, and the unfair labor practices charges were filed. The collective bargaining agreement was honored until its expiration.
We must grant enforcement of the Board's order if we find substantial evidence on the record as a whole to support the Board's findings. We are not free to substitute our judgment for that of the Board simply because we would have made a different decision had we heard the case de novo. Randall, Burkart/Randall Div. of Textron, Inc. v. NLRB, 638 F.2d 957, 959 (6th Cir. 1981). On the other hand, this court is not a "rubber stamp" or the enforcement arm of the NLRB, and we must review the evidence unfavorable to the Board's position as well as the evidence supporting it. NLRB v. Brown Food Store, 380 U.S. 278, 289-92, 85 S.Ct. 980, 987-988, 13 L.Ed.2d 839 (1965); Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C.Cir.1980).
The first issue before the court is whether there is substantial evidence to support the Board's finding that the Company violated section 8(a)(1) by verbally reprimanding Della Dugger for filing petty grievances.
The only dispute between the parties is whether or not Dugger was, in fact, given a verbal warning. This was a credibility question which was resolved by the administrative law judge against the company. Such resolutions should be affirmed unless they are inherently unreasonable or self-contradictory. NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 730 (5th Cir. 1978). We find the administrative law judge's finding to be neither and therefore enforce that portion of the Board's order which relates to the verbal warning.
The most critical issue in this appeal is whether the Company was justified in polling its employees to determine if the Union still enjoyed the support of a majority of the employees. Two basic considerations are at play in deciding when an employer may poll its employees. First, the choice of a collective bargaining representative should be left to the employees; the interests of the employer...
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