APPLICATION FOR ENFORCEMENT OF AND CROSS-PETITION TO REVIEW A FINAL ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Gibbons, Hunter and Rosenn, Circuit Judges. Hunter, Circuit Judge, concurring.
This is another in a series of cases we have decided since 1980 dealing with the circumstances under which the National Labor Relations Board (the Board) must conduct an evidentiary hearing on an employer's allegations of union misconduct in a representation election. See, e.g., NLRB v. ARA Services, Inc., 717 F.2d 57 (3d Cir. 1983) (in banc); Season-All Industries, Inc. v. NLRB, 654 F.2d 932 (3d Cir. 1981); Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir. 1981). The Board certified the Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC (the Union) as the bargaining representative of respondent J-Wood's production and maintenance employees on the basis of the Union's one-vote victory in a representation election held among J-Wood employees in August 1980. J-Wood (the Company) filed timely objections to this election alleging, inter alia, that union agents made pre-election threats of reprisals against employees who failed to support the Union, as well as representations that the employees' jobs would be jeopardized after the election if they refused to support the Union. Following an ex parte investigation, the Board's Regional Director recommended that the objections be overruled, and the Board adopted this recommendation.
Because the Company refused to bargain with the Union, the Board found the Company in violation of section 8(a)(5) of the National Labor Relations Act (the Act). The Board now seeks enforcement of its bargaining order, and the Company has cross-petitioned for review, contending that it was under no obligation to bargain with the Union.*fn1 We agree with the Company that the Board abused its discretion in certifying the Union without first conducting an evidentiary hearing on J-Wood's election objection. Accordingly, we deny the Board's petition for enforcement of its bargaining order and grant the Company's cross-petition for review.
J-Wood is a division of Tappan, Inc., engaged in the business of manufacturing and selling custom kitchen cabinets, bathroom vanities, and shelving. The dispute in this case arises out of a representation election initiated by petition of the Union and conducted on August 8, 1980, among production and maintenance employees of J-Wood at its plant in Milroy, Pennsylvania. The Union won the election by a one-vote margin: 32 employees voted in favor of union representation and 31 voted against.
On August 15, 1980, the Company filed timely objections to the election alleging that the Union's misconduct had affected the outcome. Specifically, the Company alleged that three union organizers who were employees of J-Wood had threatened employees Michael Habbershon and George Dobson with reprisals, principally loss of their jobs, if they failed to support the Union.*fn2 J-Wood asserted that, about ten days before the election, employee Earl Eby, a union agent, told employee Michael Habbershon that "most of the people in here like you, and if you want them to keep on liking you, I'd advise you to vote 'yes. '" Eby allegedly also told Habbershon that if he did not sign a union card and the Union won the election, Habbershon would be laid off "for not going with the Union." With respect to employee Dobson, the Company alleged that Tom Eckley, another in-house union organizer, had told Dobson that "if the Union gets in and you don't sign up, you'll be out the door." J-Wood also alleged that later that same day employee William Ross, a union committeeman, likewise informed Dobson that "if you don't sign that paper, you'll be out the door." In its election objections the Company offered to prove that Ross, Eby, and Eckley were "known throughout the plant as agents of [the Union]," and in support of this contention supplied the Regional Director with an article from a union publication expressly identifying Ross as a member of the "plant committee" during the organizing drive.
Pursuant to 29 C.F.R. § 102.69(c), the Board's Regional Director conducted an ex parte administrative investigation into J-Wood's objections, which essentially confirmed the Company's allegations concerning the making of the statements. The Regional Director's report indicated that one rank-and-file employee claimed he was told by Earl Eby about two to three weeks before the election that "if he voted 'no ' he would be laid off if the [Union] got in," and that "if he didn't sign a card and the [Union] was voted in, he would be laid off."*fn3 The Regional Director also reported that another employee claimed to have been told by Eckley and Ross that "if the employee didn't sign a card he would be out of a job." The Regional Director also reported that employees Eby, Eckley, and Ross all denied having made the statements attributed to them and denied that they were members of any union organizing committee during the pre-election campaign.
Based on his investigation, the Regional Director recommended overruling the Company's election objections on the ground that Ross, Eby, and Eckley were not union agents and that therefore their statements, even if made, could not be attributed to the Union. Because the Regional Director found that the threats had not created an atmosphere of fear or violence that impaired the employees' freedom of choice, he concluded there was no basis for invalidating the election results. The Regional Director rejected J-Wood's request for an evidentiary hearing. Although the Company excepted to the Regional Director's report, the Board adopted the Regional Director's recommendations and certified the Union on March 24, 1981.
To obtain judicial review of the Board's certification order, J-Wood refused to bargain with the Union.*fn4 Thereupon the Board summarily found J-Wood in violation of section 8(a)(5) and 8(a)(1) of the Act, 29 U.S.C. § 158(a)(5) and (a)(1). The Board has filed an application with the court for enforcement of its bargaining order and the Company has cross-petitioned for review.
In the instant case the Company alleged that during the ten days preceding the election, union agents made threats to two employees that, in the Company's view, influenced the election results. These threats admonished the employees that they would lose their jobs after the election if the employees refused to support the Union. The Regional Director declined to conduct a hearing on these charges because he determined that, assuming the statements were made as the Company alleged, they could not be attributed to the Union. The Regional Director accordingly concluded that the alleged threats did not warrant overturning the election. The Company contends that the Regional Director erred in resolving the election objections without an adversarial hearing. J-Wood argues that a hearing should have been held to resolve two "substantial and material factual issues" with respect to its objection: (1) whether the employees who made the threats were union agents, and (2) the making and impact of the threats.
To support its assertion that the Union was responsible for the threats that were made, J-Wood offered to prove that "Eby, Eckley and Ross were, in fact, known throughout the plant as agents of the [Union]." The Company produced an article in a union publication reporting on the outcome of the election explicitly identifying Ross as a member of the "plant committee" engaged in the organizational drive. The Regional Director concluded, however, that this was an insufficient basis to create a substantial and material factual issue concerning union agency. His report said:
No evidence was adduced during the investigation that either Eby or Eckley held any office with the [Union] or that they were in any way designated to act for the [Union]. With respect to Ross, the employer relies upon an article which appeared in a publication of the [Union] after the election, which listed Ross along with other employees as serving on the "plant committee." Ross denies being a member of any union organizing committee during the pre-election campaign. In any event, there is no evidence that the [Union] authorized or condoned the alleged statements or that it was even aware of them. Moreover, even if the individuals to whom the statements were attributed may have been supporters of the [Union], the Board has held that even where the employee is the prime mover or principal organizer for a union, the union would not be responsible for threats made by such adherents. I find, therefore, that the alleged statements cannot be attributed to the [Union].
The Regional Director deemed it "unnecessary to decide whether Ross was in fact a member of the in-plant organizing committee prior to the election since, assuming arguendo that he was, my find[ing] that the remarks alleged to have been made by Ross cannot be attributed to the [Union] would be the same." The Regional Director and the Board evidently believed that membership in the organizing committee would be insufficient to make Ross a union agent.
With respect to the statements of employees Eby and Eckley, the Regional Director acted within his discretion in declining to conduct an evidentiary hearing to determine whether they were agents of the Union. The Company proffered no evidence to the Regional Director to support its contention that the acts of Eby and Eckley were attributable to the Union; the Company merely indicated a willingness to offer proof at the time of an evidentiary hearing that these individuals were "known throughout the plant as union agents." Thus, with respect to Eby and Eckley, J-Wood did not satisfy the requirement of Anchor Inns, supra, that its allegations be supported by a proffer of evidence that is not "conclusory or vague" but instead "points to specific events and specific people." 644 F.2d at 296. Because J-Wood proffered no actual evidence to show the agency status of Eby and Eckley, there was no reason for the Regional Director to hold a hearing to resolve this question.
The statements by J-Wood employee Ross are another matter, however. Under the Board regulation applicable at the time of the representation proceeding in this matter, the Regional Director may direct an evidentiary hearing when a party objecting to an election raises "substantial and material factual issues." 29 C.F.R. § 102.69(d).*fn5 In NLRB v. ARA Services, Inc., 717 F.2d 57 (3d Cir. 1983) (in banc), we construed this regulation as vesting in the Regional Director discretion to determine whether or not a given issue of fact could be better resolved by an investigation rather than a hearing. In the instant case, the Regional Director conducted an ex parte administrative investigation that essentially confirmed the Company's allegations that Ross, like his fellow employees and in-house organizers Eby and Eckley, had made the threatening statements to Dobson. The Regional Director thus assumed that these threats had been made as alleged. The only issues that remained were whether the statements of Ross may be attributed to the Union and, if so, whether those statements may have influenced the outcome of the election. Based on his investigation, the Regional Director declined to hold an evidentiary hearing to inquire into these matters. We believe that in so doing the Regional Director abused his discretion.
Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir. 1981), addressed the nature of the showing an employer must make to obtain a hearing on his objections to a representation election. In Anchor Inns, we held that an evidentiary hearing was required if -- and only if -- the objecting party made an adequate proffer of evidence to establish the existence of "substantial and material factual issues":
In order to obtain an evidentiary hearing, the objector's proffer of evidence must prima facie warrant setting aside the election. The proffer may not be conclusory or vague; it must point to specific events and specific people. On the other hand, an evidentiary hearing is not required when, if all the evidence proffered by the objecting party is accepted as true, no ground is produced which would warrant setting aside the election.
Id. at 296. If the evidence proffered by the Company supports its allegations that there is a basis for setting aside the election, then the Regional Director abuses his discretion in not granting a hearing. See NLRB v. ARA Services, Inc., supra.
In the instant case, to substantiate its exceptions to the Regional Director's report, the Company produced an article from a union publication purporting to identify the persons responsible for the Union's election success. The publication named Ross as a member of the "plant committee." Nonetheless, the Regional Director declined to conduct a hearing because he believed that even if Ross were a member of the plant committee, this would not necessarily make him a union agent. We recognize that membership on the plant organizing committee alone is insufficient to establish that Ross's acts may be imputed to the Union. When, however, the Union publicizes and identifies those who played a significant role in the election victory, and specially couples Ross's name as a member of the organizing committee with a statement in the next sentence identifying the union officers and members of "the Union staff involved in the drive," Ross is no longer a mere member of the organizing committee. The Union has recognized that he played more than an ordinary role in the election and, at this point in the proceedings, the Company is only seeking a hearing to establish Ross's relationship to the Union and the impact of his threatening statements. The Company is not endeavoring to establish the merits of its claims. Its burden, therefore, is not to establish agency but only to proffer sufficient facts to warrant a hearing on the question of agency. In light of the threatening statements made by Ross, the post-election publication by the Union listing the persons "involved in the drive" to organize the plant, ...