ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD, NLRB No. 4-CA-14794.
Before: GIBBONS, Chief Judge, and SEITZ and GARTH, Circuit Judges.
The National Labor Relations Board (the Board) petitions for enforcement of its order holding that the refusal of the petitioner, Molded Acoustical, Inc. (the Company), to bargain with the respondent, Local 773, International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America (the Union), violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(1), (5) (1982). In challenging the Board's order, the Company contends: 1) that the election which led to the Union's certification was tainted by a Union promise to waive all initiation fees if the Company's employees elected the Union as their bargaining representative; 2) that the Board improperly refused to conduct an evidentiary hearing to determine the effect that the Union's waiver had on eligible voters; and 3) that the relocation of Company operations subsequent to the election in question constituted changed circumstances sufficient to obviate any obligation to bargain with the Union. Because we find no merit in these contentions, we will enforce the Board's order in its entirety.
On October 26, 1983, the Union filed a petition with the Board, pursuant to section 9 of the NLRA, 29 U.S.C. § 159 (1982), seeking to represent certain employees of the Company. The Company and the Union entered into an election agreement on November 14, 1983, which was approved by the Regional Director of the Board on the next day. The Company and the Union further agreed that the election would be held in the following bargaining unit:
All full-time and regular part-time production and maintenance employees at the [Company's] Main Street facility, but excluding all other employees, including office and plant clerical employees, professional employees, lead men, confidential employees, guards and supervisors, as defined in the [NLRA].
The election was eventually held on December 30, 1983. At the election, 60 votes were cast in favor of and 55 against union representation.
Eleven days before the election, the Union sent a letter to the employees in the proposed bargaining unit. In that letter, the Union urged these employees to vote for Union representation. In addition, in a postscript, the Union stated:
All employees in the bargaining unit will not have to pay the $50.00 Initiation Fee if they vote for the Teamsters to represent them. Also dues will not be payable until there is a signed contract!
After the election, the Company filed objections to it on the ground that the quoted postscript violated the United States Supreme Court's decision in NLRB v. Savair Manufacturing Co., 414 U.S. 270, 38 L. Ed. 2d 495, 94 S. Ct. 495 (1973). Specifically, the Company contended that this postscript presented an improper inducement for employees to vote for union representation and that it effectively undercut their free choice. The Regional Director, however, rejected the Company's objections. While recognizing that Savair prohibits a union from limiting an offer to waive initiation fees solely to those employees who sign union authorization cards before a certification election, the Regional Director opined that this offer to waive fees was clearly not so limited. Accordingly, the Regional Director upheld the validity of the election.
The Company filed exceptions to the Regional Director's report and requested that the Board either order a new election or hold a hearing for the purpose of taking testimony to resolve disputed factual issues. On December 10, 1984, the Board issued a "Decision and Certification of Representative" adopting the Regional Director's findings and recommendations. In that decision, the Board stated that the Company's interpretation of the challenged postscript -- i.e., that only those employees that voted for the Union would qualify for the waiver of initiation fees -- was "unreasonable in light of the Board's fully publicized secret-ballot procedure." Molded Acoustical Products, Inc., 273 N.L.R.B. 156, 156 n.1 (1984).
After the Board certified the Union, the Company refused to bargain. The Company based its refusal to bargain in part on the movement of its operations from Easton, Pennsylvania to Palmer Township, Pennsylvania -- a distance of seven miles. The Company contended that this move led to employee turnover and substantial changes in operations which required reexamination of the Union's status as the employees' legitimate bargaining representative.*fn1 Although it was first proposed before the Union election of 1983, the Company's movement of operations was completed after the Union had been certified.*fn2 The Company also based its refusal to bargain on the contention that the Board had improperly declined to order a new election in spite of the Company's previous objections.
On May 6, 1985, a hearing concerning the Company's refusal to bargain with the Union was held before an Administrative Law Judge. The Administrative Law Judge held that the Company's refusal to bargain violated sections 8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. §§ 158(a)(1), (5). In so deciding, the Administrative Law Judge determined that the basic operation at the Company's old and new plants remained unchanged and that no unusual circumstances justified its refusal to bargain. Furthermore, he declined to consider the waiver of initiation fee issue inasmuch as that issue had previously been determined in the representation proceedings.
On July 31, 1986, the Board issued a decision adopting the recommended order of the Administrative Law Judge in all respects. The Company's petition to review until the Board's ...