ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (NLRB No. 24-CA-4250)
Before Seitz, Chief Judge, Gibbons and Rosenn, Circuit Judges.
On July 18, 1980, the National Labor Relations Board ("NLRB" or "Board") entered an order finding Anchor Inns, Inc. ("Company" or "Employer") to have violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1) & (5) (1976), by refusing to bargain with the Gastronomical Workers Union of Puerto Rico, Local 610, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO ("Union"). The Board ordered the Company to cease and desist in its violations, to post appropriate notices, and to recognize and bargain with the Union upon request. Anchor Inns filed this petition for review under 29 U.S.C. § 160(f) (1976); the Board cross-applied for enforcement pursuant to 29 U.S.C. § 160(e) (1976).
Although Anchor Inns' petition formally seeks review of the unfair labor practice proceedings, it is not disputed that the Company refused to bargain with the Union. The Company's complaints are directed to events surrounding the representation election alleged coercive activity by the Union, its agents, and adherents, and the Board's failure to deal appropriately with that activity. Because Congress has not provided for direct judicial review of Board representation proceedings, the Employer was compelled to expose itself to unfair labor practice charges in order to gain access to this court. The validity of the unfair labor practice charges depends on the legality of the Union's certification. Therefore, we may address the Company's claims concerning the representation proceedings in our treatment of its section 10(f) petition. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251 (1941); NLRB v. Sun Drug Co., 359 F.2d 408 (3d Cir. 1966). We deny enforcement and remand for an evidentiary hearing.
Anchor Inns, Inc. operates the Anchor Inn Hotel in St. Croix, United States Virgin Islands. On October 27, 1978, the Union filed a representation petition with the Board, requesting certification as the exclusive bargaining agent of all service and maintenance employees at the Company's St. Croix hotel, excluding from the proposed bargaining unit office clerical employees, professional employees, guards and supervisors. Although the Company and the Union disagreed about the supervisory status of one employee, Hippolyte Victor, a consent election was held on December 15, 1978. Victor served as the Union's observer at the election. Six votes were cast: four in favor of the Union, one against the Union, and Victor's, which was challenged and therefore not counted. Because Victor's vote was not determinative of the election, the challenge was not resolved.
On December 21, 1978, the Company filed objections to the election, claiming that certain Union proponents, notably Victor, had threatened or coerced its employees and thereby disrupted the free and fair atmosphere of the election. The objections were accompanied by an affidavit of Company owner Lon B. Southerland, through which Southerland related conversations between himself and three Anchor Inn employees. Employee Albert Hughes informed Southerland that Victor had told Hughes and other employees that if they did not vote for the Union, they would lose their jobs within 30 days. Employees Hermie Joseph and Lucille Dailey, when separately volunteering to Southerland that they preferred not to have a union despite Victor's pro-Union activities, "check(ed) to see that no one was listening and appear(ed) frightened and apprehensive."
The Board's Regional Director investigated the Company's objection and, without having held a hearing, issued his report and recommendations on March 20, 1979. In his report, the Regional Director concluded, on the basis of his interview with Victor, that Victor had told Hughes that if the Union won the election, Hughes would have to join the Union or lose his job within 30 days. This was inaccurate, the Regional Director found, because it omitted reference to the necessity for successful negotiation of a union security clause before conditioning employment on union membership. He further held that such a "statement made to one employee cannot be said to have interfered with free and unfettered choice by employees in the election." The Regional Director also noted that no evidence had been adduced or discovered that would indicate that Victor was an agent or employee of the Union. As to Southerland's reference to his conversation with employees Joseph and Dailey, the Regional Director found it unpersuasive, deeming it to be an offer of proof that the election results did not reflect the previously expressed views of the voters. For these reasons, the Regional Director recommended that the objection be overruled and the Union certified as the bargaining representative of the Company's employees in an appropriate unit.
The Company thereupon filed exceptions to the Regional Director's report. In essence, the Company urged that the Regional Director should at least have conducted a hearing on the objections tendered to the election. This was especially appropriate, the Employer argued, with respect to Victor's statement to Hughes, which Hughes had interpreted as a threatened loss of employment if he did not vote for the Union. The discrepancy between the evidence offered in support of the objection and the evidence discovered by the Regional Director's investigation demanded, it was urged, a hearing to determine the true nature of Victor's remarks. Next, the Company complained that it should not have been held responsible for failing to produce evidence of Victor's agency status with the Union. The strictures of section 8(a)(1),*fn1 it was argued, precluded the Employer from engaging in the type of investigation that would produce competent evidence of an agency relationship. Further, the Company claimed that even if Victor were not a Union agent, a hearing was required to determine Victor's supervisory status, for if he were found to be a supervisor, as the Company had consistently contended throughout the representation proceedings, his activities on behalf of the Union irreparably tainted the election process. Finally, the Company urged that the actions of Joseph and Dailey, in communicating with Southerland, indicated that more than one employee had been the target of Victor's "threats." Therefore, even absent Union agency or supervisory status, the widespread nature of Victor's coercive conduct raised a significant possibility that "a free expression of choice of representatives (was) impossible."
The Board adopted the Regional Director's recommendations and certified the Union on May 8, 1979. The Board noted, however, that it was overruling the objection solely on the ground that the evidence presented by the Company did not establish that Victor was a union agent. Absent such agency, the Board held, a statement such as the one ascribed to Victor by the Regional Director was not grounds for setting aside an election.
On August 10, 1979, the Company filed a motion for reconsideration with the Board, claiming that "new and previously unavailable evidence" had been discovered which established that the employees had been unlawfully coerced in their choice of a bargaining representative and that the election should have been set aside. Attached to the motion for reconsideration were two affidavits. In one affidavit, employee Catherine Wade stated that Victor was the only employee with whom Ralph Mandrew, the Union organizer, had been in contact, and that Victor had advised all the hotel maids that he was the Union representative. The other affidavit, executed by Hermie Joseph, stated that although Victor had threatened her with physical harm and lies which would cause her to lose her job, she had not informed the Regional Director's investigator of the threats. She did not report this, she claimed, because Victor told her not to and she was "afraid" of him. Joseph also stated that Lucille Dailey had heard Victor threaten Albert Hughes because Hughes would not support the Union. The Board denied the Company's motion for reconsideration due to an "insufficient showing that the proffered evidence was previously unavailable and that, if considered, would require a different result."
Having exhausted its ability to initiate review of the representation proceedings, the Company thereupon refused to bargain with the Union. An unfair labor practice charge was then lodged against the Company, a complaint issued, and, on the General Counsel's motion, summary judgment was entered ...