Tuf-Flex Glass v. N.L.R.B.
| Citation | 715 F.2d 291 |
| Decision Date | 12 August 1983 |
| Docket Number | No. 82-3024,TUF-FLEX,82-3024 |
| Parties | 114 L.R.R.M. (BNA) 2226, 98 Lab.Cas. P 10,399 GLASS, a part of Libbey-Owens-Ford Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Miscellaneous, Warehousemen, Airline, Automotive Parts, Service, Tire and Rental, Chemical and Petroleum, Ice, Paper and Related Clerical and Production Employees Union, Local 781, Intervening-Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
R. Clay Bennett, Matkov, Griffin, Parson, Salzman & Madoff, Chicago, Ill., for petitioner.
Elinor Stillman, Elliott Moore, N.L.R.B., Washington, D.C., for respondent.
Edwin H. Benn, Asher, Goodstein, Pavalen, Gittler, Greenfield & Segall, Ltd., Chicago, Ill., for intervening-respondent.
Before WOOD and CUDAHY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. *
Petitioner Tuf-Flex Glass seeks review of the National Labor Relations Board's finding that Tuf-Flex unlawfully refused to bargain with the intervenor union, following its certification, in violation of Section 8(a)(5) of the National Labor Relations Act; the respondent Board has cross-petitioned for enforcement of its concomitant order directing Tuf-Flex to bargain with the union and to provide certain requested information and to post an appropriate notice. The primary issue raised on appeal is whether there was substantial evidence in the record permitting the Board to conclude that certain threats made in the course of a union election campaign did not result in an impermissibly coercive voting atmosphere. We agree with the Board's finding and grant enforcement of its order in full.
The underlying controversy began in March, 1981, when the union filed a representation petition seeking certification as the collective bargaining representative of the twenty-five production and maintenance workers employed at Tuf-Flex's Elmhurst, Illinois facility which manufactures tempered architectural safety glass. In April, a secret ballot election was conducted by the Board, and the union won by a vote of 14 to 8. Tuf-Flex, however, filed timely objections to the election, alleging that the union had unlawfully threatened employees with reprisals for failing to vote in the union's favor, thus coercing them into voting for the union. The Board's regional director investigated the objections, and in May recommended that the objections be overruled and the union certified as the bargaining representative. The Board, however, directed an evidentiary hearing to explore the existence, nature, origin and effects of the alleged threats.
In November, 1981, that proceeding was held. At the hearing, numerous versions of the alleged events were set forth even by the same witnesses and, accordingly, the hearing officer deemed it necessary to make certain credibility determinations as part of his findings. After doing so, the hearing officer found that the credible testimony established that at least two weeks prior to the election, one employee, Salvador Arias, told another employee, Pedro Sanchez, to tell yet a third employee, Jose Gutierrez, that if Gutierrez did not vote for the union and tell other employees to vote for the union, Arias would file a "complaint" (whose nature was never specified) against Gutierrez concerning the latter's admitted involvement in an incident more than a year earlier in which he acted as an intermediary between a company "leadman" and two job applicants who paid the leadman money in order to obtain employment with Tuf-Flex. Arias, the hearing officer found, subsequently made the same statement directly to Gutierrez, and Sanchez later repeated to Gutierrez the conversation between Sanchez and Arias but, "because of Sanchez's fears at that time," added his own gloss that Arias might "hurt" Gutierrez or his family. The hearing officer also found that Gutierrez related his conversation with Arias to another employee, Florentino Villalpando, and that on the day of the election, Sanchez, Gutierrez and Villalpando told four employees to vote for the union, but did not give the employees a reason for doing so. These employees testified that they were in no way threatened and one stated that he had responded to this overture by noting that the vote was secret and his decision a personal one.
Prior to assessing whether these events created a level of coercion sufficient to invalidate the election, the hearing officer undertook to determine whether Arias acted as an agent of the union and thus whether his threat should be deemed attributable to the union. Noting that the credible testimony established that Arias was the employee who first contacted the union to initiate the organizing campaign, that employees referred to Arias as "the union man" since he was the most vocal union supporter at the plant, that Arias aided the union organizer, Miguel Travieso, and was used by him to "get the news" to Tuf-Flex employees, that Arias passed out union authorization cards and campaign literature on company premises, and that at a union meeting Arias sat next to Travieso, but that Arias was never promised nor did he receive any monetary or other benefit from the union and that Travieso was in charge of the union's organizing campaign (e.g., Travieso telephoned and visited employees' homes, distributed leaflets at the plant, obtained authorizations and signatures, distributed his business card to several employees and solicited further questions, was present in official capacity at several union organization meetings, and was seen by employees at the plant and was known to be a union staff member), the hearing officer concluded that Arias was not an agent of the union and had no actual or apparent authority to speak on the union's behalf. The hearing officer reasoned that mere vocal support for the union and encouragement of employees to attend union meetings could not confer spokesman status to a union supporter, and that, in the case before him, any impression of agency that Arias may have created was overcome by employees' testimony that they knew Travieso was the union's representative and that Travieso was visible to employees at the plant and at organizing meetings. The hearing officer thus distinguished the case before him from such cases as Beaird-Poulan Division, Emerson Electric Co., 247 NLRB No. 180 (1980) and NLRB v. Georgetown Dress Corporation, 537 F.2d 1239 (4th Cir.1976), where an in-plant organizing committee composed of employees was the primary or sole intermediary between the employees and the union and thus the employees were deemed to have agency status.
Having determined that Arias' statements were not to be considered those of a union agent, the hearing officer then inquired whether Arias' "conduct as a rank-and-file employee was so aggravated as to create a general atmosphere of coercion and fear of reprisal so as to interfere with employee free choice in the election," reflecting that a somewhat looser standard is applied by the Board and the courts in assessing the impact of conduct of rank-and-file employees, as opposed to that of union agents. Certain-Teed Products Corp. v. NLRB, 562 F.2d 500, 510-511 n. 5 (7th Cir.1977); Steak House Meat Company, 206 NLRB 28, 29 (1973). The hearing officer found that Arias' threat to file an unspecified "complaint" was not "sufficiently substantial" to create a "general environment of fear and reprisal," since the meaning and consequences of the threatened complaint-filing were unclear and in any event the complaint would be a peaceful, legal action rather than one involving violence or physical harm, thus making the case analogous to that presented in Beaird-Poulan Division, Emerson Electric Co., 247 NLRB No. 180 (1980) and Mike Yurosek & Sons, Inc., 225 NLRB 148 (1978), enforced, 597 F.2d 661 (9th Cir.1979), cert. denied, 102 LRRM 2360 (1979), where threats involving the filing of charges against employees or the initiation of immigration service investigations against illegal aliens in the bargaining unit were found insufficient to warrant the vitiation of election results. Thus, having determined that the election was not impermissibly tainted by coercion, the hearing officer issued a report recommending that Tuf-Flex's objections be overruled.
Tuf-Flex took exception to the hearing officer's report and further urged the Board to overturn the election on the new and independent basis that two allegedly "supervisory" employees had undertaken pro-union activity. In June, 1982, the Board issued a supplemental decision adopting the hearing officer's recommendations and certifying the union as the bargaining unit representative; it also required the company to commence collective bargaining negotiations and provide the union with certain information and post appropriate notice. In July, Tuf-Flex refused to comply with the order on the basis that the Board's certification of the union was improper; the union countered with an unfair labor practice charge alleging that Tuf-Flex was unlawfully refusing to bargain. The Board's regional director issued a complaint charging Tuf-Flex with violating Section 8(a)(5) of the NLRA. After transferring the case to itself, the Board concluded in December, 1982 that Tuf-Flex unlawfully refused to bargain, noting that all of the issues before it were, or could have been, raised in the prior representation hearing, and that no new evidence had been presented requiring reexamination of the Board's earlier representation decision. Accordingly, the Board directed the company to bargain with the union, provide the requested information, and post appropriate notice. Tuf-Flex seeks review of that order, and the Board has cross-petitioned for its enforcement.
Before confronting the heart of this case--the legal significance of Arias' threat 1--we must address the apparent contention by Tuf-Flex that the facts were erroneously...
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