NLRB v. Bandag, Incorporated ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
UNITED STEELWORKERS OF AMERICA,
AFL-CIO, CLC,
No. 97-1914
Intervenor,
v.
BANDAG, INCORPORATED,
Respondent.
On Application for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-17210)
Argued: January 26, 1998
Decided: April 13, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Petition to enforce granted by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Parker Barrett, MAUPIN, TAYLOR & ELLIS,
P.A., Raleigh, North Carolina, for Bandag. John Emad Arbab,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. David E. Goldman, Assistant General Counsel, UNITED
STEELWORKERS OF AMERICA, Pittsburgh, Pennsylvania, for
Intervenor. ON BRIEF: Robert A. Valois, Michael C. Lord,
MAUPIN, TAYLOR & ELLIS, P.A., Raleigh, North Carolina, for
Bandag. Frederick L. Feinstein, General Counsel, Linda Sher, Asso-
ciate General Counsel, Aileen A. Armstrong, Deputy Associate Gen-
eral Counsel, Charles Donnelly, Supervisory Attorney, Christopher
W. Young, NATIONAL LABOR RELATIONS BOARD, Washing-
ton, D.C., for Board.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
On the application of the National Labor Relations Board
("Board") to enforce its order requiring Bandag, Incorporated
("Bandag"), to bargain with Local 922 of the United Steelworkers of
America, AFL-CIO, CLC ("Union"), Bandag contends that it need not
bargain with the Union because the decertification election in which
the Union prevailed was rendered invalid by various third-party
threats and harassing acts that occurred during the period before the
election. Because we conclude that the Board's decision to certify the
Union was reasonable and supported by substantial evidence, we
enforce the Board's order.
I
Bandag operates a tire retreading manufacturing facility in Oxford,
North Carolina, and a related warehousing facility in Louisburg,
North Carolina. Its production and maintenance employees have been
represented by the Union and its predecessor since 1970.
On February 9, 1996, Jeff Daniel, a Bandag employee and member
of the collective bargaining unit, filed a decertification petition with
the Board alleging that a substantial number of Bandag employees no
longer recognized the Union as their collective bargaining representa-
2
tive. The Board conducted an election on March 28, 1996, and out of
169 eligible voters, a total of 163 ballots were cast, including one void
ballot, with the following results: 92 for continued representation by
the Union, 67 against continued representation, and 3 which were
challenged.
Bandag filed timely objections to the election, contending that the
election had been undermined (1) by an "atmosphere of confusion,
fear of reprisal, coercion and intimidation" created by two anonymous
bomb threats received at Bandag's Oxford plant on March 27, 1996,
and March 28, 1996; (2) by "numerous acts of intimidation and
harassment engaged in by agents of the union and/or employees
known to be pro-union"; and (3) by "numerous acts of sabotage and
tampering with property, machinery and equipment of the Employer."
The Regional Director convened a hearing on May 1-2, 1996, at
which the following facts were developed.
Martha Tanner, wife of Plant Manager Marshall Tanner, received
an anonymous telephone call shortly after midnight on March 27,
1996, two nights before the election, stating that Ms. Tanner should
inform her husband that something was "set to go off at 3:30." Inter-
preting the call as a bomb threat, Ms. Tanner contacted her husband
at Bandag's Oxford plant. Plant management decided to cease opera-
tions and evacuate the facility until representatives of the sheriff's and
fire departments could search the plant. When it was determined that
the plant was safe, plant operations resumed around 4:00 a.m. As day
shift employees later reported to work, their supervisors advised them
of the threat.
A second threat was received the following evening by a 911 dis-
patcher from an unidentified caller stating that a bomb was set to go
off at Bandag's Oxford plant at 2:30 a.m. After deputy sheriffs
informed management of the situation, management again decided to
shut down operations and evacuate the facility until representatives of
the sheriff's and fire departments conducted a search. After determin-
ing that the plant was safe, work resumed around 3:00 a.m. Again,
day-shift employees were apprised of the threat. The Hearing Officer
found that these threats "worried" and "concerned" the employees.
In addition to the bomb threats, the Hearing Officer found numer-
ous incidents of intimidation and harassment directed against Jeff
3
Daniel, the employee who originally filed the decertification petition.
The Hearing Officer determined that most of these incidents were
instigated by Steve Harris, a pro-union employee. The first incident
occurred on February 12, 1996, when Harris intentionally stood in
Daniel's way while Daniel was carrying 100-pound rolls of heated
rubber. The next day, Harris stared at Daniel for 3-5 minutes from a
distance of about 25 feet. He stared at Daniel on other occasions, as
well. The Hearing Officer also found that Harris had followed Daniel
in his car as the two men drove home from work on February 19, 20,
and 21.
During the period before the election, Daniel also received 23
anonymous telephone calls. Twenty-two of the calls involved laugh-
ing and heavy breathing, while one caller warned Daniel to "watch
your back." Although a tracer was placed on Daniel's phone, no call
lasted long enough for a trace to be completed. Also, on February 15,
1996, someone claiming to be Daniel's wife placed two calls to the
plant while Daniel was at work. In the first call, the woman left a
message for Daniel asking him to call home and saying that it was an
emergency. After Daniel investigated the situation, he determined that
his wife had not made the call and that there was no emergency.
Later, the female caller spoke to Daniel's supervisor and warned him
that Daniel had been home, had retrieved his gun, and was returning
to the plant. Aware by this time that the caller was not Daniel's wife,
the supervisor ignored her warning.
Two other anti-union employees also experienced incidents of
intimidation and harassment in the weeks prior to the election. At the
hearing, Steve Sizemore testified that immediately after the decertifi-
cation petition was filed two pro-union employees warned him in a
"confidential" and "concern[ed]" manner to "watch his back." Sizem-
ore claimed that as a result of this encounter he was less willing to
express his pro-company views openly, although he admitted that he
never actually was threatened and that none of the events leading up
to the election changed the way he voted. Richard Nott, a former
Union member, testified that during the campaign he, like Daniel,
received a number of anonymous telephone calls which interrupted
his sleep until he purchased an answering machine and started
unplugging his phone. Furthermore, on March 26, 1996, two days
before the election, Nott's wife received a call from someone claim-
4
ing to be associated with Bandag and asking her for her opinion about
the upcoming election. Nott's wife told the caller to "go to hell." Nott
did not interpret the call as threatening.
At the hearing, Bandag witnesses testified about multiple suspi-
cious incidents of plant and machinery sabotage that occurred during
the period preceding the election. The incidents included machines
being turned off improperly, temperature and air gauges being set too
low, foreign material being thrown into machines, waste water dis-
charge valves being closed intentionally, pipes being broken, and
mixing churns being over-filled. The Hearing Officer found that,
although the various incidents may have necessitated time-consuming
cleaning and repair, they were "minor in nature," and "[t]here was no
evidence presented as to who was responsible for the. . . alleged sab-
otage and tampering." Indeed, the Hearing Officer concluded with
respect to all of the harassing conduct that "the evidence is insuffi-
cient to establish that the Union was responsible."
Following the hearing, the Hearing Officer concluded that even
though the incidents had occurred, the election campaign "was not
conducted in the face of a violent and emotion-filled strike," that it
"did not involve extensive destruction of the Employer's property,"
that "the alleged threats or harassment were limited to two or three . . .
employees [besides Daniel] and were clearly isolated, nonserious
incidents," and that "considering that the campaign herein was not
conducted against a backdrop of violence and destruction . . . the
bomb threats were not aggravated conduct." Accordingly, he recom-
mended that Bandag's objections to the election be overruled and that
a certification of representative be issued. The Board adopted the
Hearing Officer's findings and recommendations and certified the
Union on August 27, 1996.
In response to Bandag's later refusal to bargain with the Union, the
Regional Director filed a complaint, alleging that Bandag had violated
sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act
("Act"), 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain. Ban-
dag defended on the ground that the Union had been certified improp-
erly. On December 6, 1996, the Board issued a decision and order
finding that Bandag's refusal to bargain with the Union violated sec-
5
tions 8(a)(1) and (5) of the Act. The Board now seeks enforcement
of its order.
II
If we conclude that the Board's decision is reasonable and based
upon substantial evidence in the record considered as a whole, our
inquiry ends. We may not substitute our judgment for that of the
Board, even if we would have made a different decision had the mat-
ter been before us de novo. See 29 U.S.C. § 160(e); Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951). Moreover, the results of
a Board-supervised representation election are presumptively valid.
N.L.R.B. v. Columbia Cable T.V. Co., 856 F.2d 636, 638 (4th Cir.
1988). This presumption reflects Congress's decision to "entrust[ ] the
Board with a wide degree of discretion in establishing the procedure
and safeguards necessary to insure the fair and free choice of bargain-
ing representatives by employees." N.L.R.B. v. A.J. Tower Co., 329
U.S. 324, 330 (1946).
When pre-election conduct is alleged to have invalidated a repre-
sentation election, the party seeking to overturn the election, in this
case Bandag, bears the burden of proving by specific evidence not
only that campaign improprieties occurred but also that they pre-
vented a fair election. N.L.R.B. v. Hydrotherm, Inc., 824 F.2d 332,
334 (4th Cir. 1987). In evaluating such a challenge, less weight will
be accorded the comments and conduct of third parties than those of
the employer or union. N.L.R.B. v. Herbert Halperin Distrib. Corp.,
826 F.2d 287, 290 (4th Cir. 1987). Thus, an election will be set aside
for third-party conduct "only if `the election was held in a general
atmosphere of confusion, violence, and threats of violence, such as
might reasonably be expected to generate anxiety and fear of reprisal,
to render impossible a rational uncoerced expression of choice as to
bargaining representation.'" Id. (quoting Methodist Home v. N.L.R.B.,
596 F.2d 1173, 1183 (4th Cir. 1979)). Factors relevant to this determi-
nation include the temporal proximity of the alleged misconduct to
the election, and whether the election was won by a clear majority or
by a close vote. Methodist Home, 596 F.2d at 1184. The touchstone
always is whether the election was an accurate indicator of the
employees' preferences. Finally, it must be remembered that repre-
sentation elections are by their nature "heated affair[s]," Herbert
6
Halperin, 826 F.2d at 290, and that they must be assessed "in the light
of realistic standards of human conduct," Case Farms of North Caro-
lina, Inc. v. N.L.R.B., 128 F.3d 841, 844 (4th Cir. 1997) (citation
omitted).
Bandag contends that the acts of harassment, sabotage, and bomb
threats constituted "an uninterrupted and escalating campaign of coer-
cion" that "created an atmosphere of fear and reprisal thereby preclud-
ing a free election." It argues, therefore, that under the third-party
standard for objectionable conduct, the Board's decision to certify the
Union is not supported by substantial evidence and must be reversed.
The Board argues in response that "the anonymous and third-party
conduct fell within the realm of preelection mischief insufficient to
render employees' free choice impossible" and that its decision to
overrule Bandag's objections and certify the Union was reasonable.
While we acknowledge that the conduct of which Bandag com-
plains was offensive and disruptive, Bandag has not demonstrated that
the employees' ability to cast a free and rational vote was under-
mined. Over 96% of eligible employees voted in the election, and,
despite the threats made against three pro-company employees, a full
41% of voters opposed continued representation by the Union. More-
over, not one employee testified before the Hearing Officer that he or
she changed his or her vote in response to any of the incidents that
occurred during the pre-election period. We believe that Bandag has
not met its "heavy burden," see Herbert Halperin, 826 F.2d at 290,
of proving that the alleged misconduct sufficiently affected the accu-
racy of the election.
Because we conclude that the Board's decision to affirm the elec-
tion was not unreasonable, Bandag has a duty to bargain with the
Union. The Board's petition to enforce is therefore granted.
PETITION TO ENFORCE GRANTED
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