Trimm Associates, Inc. v. N.L.R.B.

• Decision Date: 03 December 2003
• Docket Number: No. 02-4194.,No. 02-4472.,02-4194.,02-4472.
• Citation: 351 F.3d 99
• Parties: TRIMM ASSOCIATES, INC., Petitioner No. 02-4194 v. NATIONAL LABOR RELATIONS BOARD, Respondent National Labor Relations Board, Petitioner No. 02-4472 v. Trimm Associates, Inc., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

351 F.3d 99

TRIMM ASSOCIATES, INC., Petitioner No. 02-4194 v. NATIONAL LABOR RELATIONS BOARD, Respondent National Labor Relations Board, Petitioner No. 02-4472 v. Trimm Associates, Inc., Respondent.

No. 02-4194.

No. 02-4472.

United States Court of Appeals, Third Circuit.

Argued July 31, 2003.

Filed December 3, 2003.

Brian P. Kirby, [Argued], Gallagher, Schoenfeld, Surkin & Chupein, Media, for Petitioner/Cross Respondent Trimm Associates, Inc.

Aileen A. Armstrong, Julie B. Broido, Kathleen E. Lyon, [Argued], National Labor Relations Board, Washington, for Respondent/Cross Petitioner National Labor Relations Board.

Before SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

This case arises out of a union representation election at Trimm Associates, Inc. in September of 2001, in which Trimm's employees voted four votes to three in favor of representation. Trimm contends that the National Labor Relations Board ("Board") should have set aside the election because of improper electioneering just prior to and during the election, in violation of the National Labor Relations Act ("Act"), and accordingly challenges the Board's certification of Glaziers Local 252 ("the Union") as the collective bargaining representative for its employees. Trimm now petitions for review of the Board's order directing it to bargain with the Union, and the Board, in turn, seeks enforcement of its order. We agree that the Board abused its discretion by resolving certain substantial and material factual issues without an evidentiary hearing. We will, therefore, grant Trimm's petition for review, deny the Board's cross-application for enforcement, and remand.

I.

On August 6, 2001, the Union filed a petition seeking to represent the employees of Trimm, a small glass fabrication and installation company located in Media, Pennsylvania. A secret ballot election was held the following month. Ten individuals voted in the election, seven of whom were the then-current employees whose votes were ultimately tallied. The remaining three — Eric Boerckel, Joe Boerckel, and Gerry Gebhart — were former employees. They had recently been let go by the company, but, because of grievances and the possibility that their discharges might have constituted unfair labor practices, they were permitted to vote. Their votes were sealed pending resolution of the unfair labor practice charge and so were not counted.

Of the seven eligible voters, four voted for the Union and three voted against. Trimm filed timely objections, alleging a violation of the Board's longstanding rule, first announced in Milchem, Inc., 170 N.L.R.B. 362 (1968), generally prohibiting prolonged conversations between union or employer agents and employees waiting to vote. According to Trimm, two of the former employees, brothers Eric and Joe Boerckel, were Union agents and had engaged in prolonged pro-union conversations with Trimm employees waiting to cast their ballots. Trimm therefore requested that the results of the election be set aside. Alternatively, it sought an evidentiary hearing.

In support of its objections, Trimm presented three affidavits — two by Trimm employees who were eligible voters, and one by Trimm's president — along with supporting materials. The affidavits attested to the fact that the Boerckels were union "organizers" in the shop, and described the following events from the morning of the election.

Shortly before the election was to begin, the Boerckel brothers met briefly with representatives of the Union in Trimm's parking lot. When the meeting on Trimm's premises was broken up by Trimm's president, Clay Jordan, the men crossed the street and continued their discussions.

The balloting took place inside Trimm's shop, near a large glass table. Individuals waiting to vote, including Trimm's then-current employees as well as the Boerckel brothers, congregated near another glass table in the shop, approximately 20-30 feet from the polling.

Just prior to the opening of the polls and during the balloting, the Boerckel brothers, who had both obtained unionized positions elsewhere, discussed with the other voters the union job status they enjoyed since being discharged by Trimm. Joe Boerckel displayed a paycheck from his new job, for either $970.00 or $770.00, which he represented as his net pay after taxes and benefits. He also stated that the Union had guaranteed him jobs on upcoming projects at the Philadelphia Convention Center and the Philadelphia International Airport. Eric Boerckel stated that the Union had secured employment for him in New Jersey, and that he earned more than his brother because of his longer commute.

After conducting an investigation, which in large part confirmed that the activity asserted in Trimm's affidavits took place, the Regional Director recommended that Trimm's objections be overruled and the results of the election certified, reasoning that Trimm's Milchem objection that the election should be set aside based on improper electioneering by the Union was meritless because there was no evidence that the Boerckels were Union agents. Trimm sought reconsideration, and offered as proof of agency a copy of the Union's then-pending (but later withdrawn) unfair labor practice charge against Trimm based on the discharge of the Boerckel brothers.¹ The charge asserted that the Boerckels were the Union's "lead organizers" at the shop. The request for reconsideration was denied.

Trimm then filed exceptions to the Regional Director's Report, requesting that the Board set aside the election or, in the alternative, direct an evidentiary hearing for the presentation and consideration of testimony and evidence relevant to its objections. Trimm reiterated the arguments it had presented to the Regional Director, and, in addition, argued that the Boerckels' conduct was sufficiently egregious to warrant setting aside the election even assuming that the Boerckels were not agents of a party to the election. On March 5, 2002, the Board, without analysis, adopted the Regional Director's report and certified the Union as the employees' collective bargaining representative. Trimm's request for Board reconsideration was denied.

To obtain judicial review of the circumstances surrounding the representation election, Trimm refused to bargain with the Union, and in June of 2002, the Union filed an unfair labor practice charge.² The Board agreed with the Union that Trimm had wrongfully refused to bargain with the employees' collective bargaining representative, in violation of the Act, and ordered Trimm to cease and desist from its refusal to bargain. On November 13, 2002, Trimm filed this Petition for Review, and on December 17, 2002, the Board filed a Cross-Application for Enforcement of its order.

The Board had jurisdiction over this unfair labor practice action pursuant to § 10(a) of the Act, and we have jurisdiction under § 10(e) and § 10(f). See 29 U.S.C. §§ 160(a), (e), (f). Because the Board's unfair labor practice decision is based in part on issues decided in the underlying representation election proceeding, we may address those issues in determining whether we will enforce the Board's unfair labor practice order. See 29 U.S.C. § 159(d); NLRB v. J-Wood/A Tappan Div., 720 F.2d 309 (3d Cir.1983); Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 293 (3d Cir.1981).

Generally, our standard of review of orders of the Board is highly deferential. We have plenary review over questions of law and the Board's application of legal precepts, but defer to the Board's reasonable interpretation of the Act. Spectacor Mgmt. Group v. NLRB, 320 F.3d 385, 390 (3d Cir.2003). The Board "`need not show its construction is the best way to read the statute,'" so long as its construction is a reasonable one. Id. (quoting Holly Farms Corp. v. NLRB, 517 U.S. 392, 409, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996)); see also, e.g., Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167, 174-75 (3d Cir.2002). We accept the Board's factual findings if they are supported by substantial evidence on the record as a whole. See, e.g., Spectacor, 320 F.3d at 390; see also 29 U.S.C. § 160(e). The Board's regulations require it to conduct a hearing where a party has raised a "substantial and material factual issue." 29 C.F.R. §§ 102.69(d), (f). The Board's refusal to conduct an evidentiary hearing is reviewed for abuse of discretion. St. Margaret Mem'l Hosp. v. NLRB, 991 F.2d 1146, 1152 (3d Cir.1993).

II.

Trimm's objections to the representation election present three issues for our consideration. First, whether the Boerckels' conduct during the election so impaired the free choice of the eligible voters as to require that the election be set aside, even if they should be found to not be Union agents, but, rather, just third-parties. Second, whether the Boerckels were in fact Union agents, which would render the electioneering improper and require the setting aside of the election. And third, whether the Board abused its discretion by not holding a hearing on Trimm's objections, particularly with regard to the question of the Boerckels' agency status.

While the evidence currently in the record is insufficient to warrant an outright reversal of the Board's ruling with respect to the first two issues, we agree with Trimm that it should have been given the opportunity to explore these issues further by way of an evidentiary hearing. The Board's regulations provide for a hearing where a party has raised a "substantial and material factual issue." 29 C.F.R. §§ 102.69(d), (f). For the reasons that follow, we believe that the standard has been met in this case.³

Under our case law, in order to obtain an evidentiary hearing a party must make a proffer of evidence that raises a substantial and material issue of fact that, if resolved in the party's favor, would warrant setting aside the election. See St. Margaret, 991 F.2d at 1152; J-Wood, 720 F.2d at 313-14; ...