Overnite Trans. Co. v. NLRB ( 1997 )

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Nos. 96-1199/1507
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Overnite Transportation Company, *
*
Petitioner/Cross-Respondent,*
*
v. *
*
Highway, City and Air Freight *
Drivers, Dockmen, Marine * Petitions for Review
Officers Association, Dairy * of an Order of the
Workers, and Helpers Local * National Labor Relations Board
Union No. 600, *
*
Intervenor. *
*
National Labor Relations Board, *
*
Respondent/Cross-Petitioner.*
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Submitted: September 13, 1996
Filed: January 31, 1997
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Before McMILLIAN, MAGILL and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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McMILLIAN, Circuit Judge.
Overnite Transportation Co. (Overnite) petitions this court for
review of a final order1 of the National Labor Relations Board (Board)
finding that Overnite violated § 8(a)(1), (5) of the National Labor
Relations Act (Act), 29 U.S.C. § 158(a)(1), (5), by refusing to bargain
with the Highway, City and Air Freight Drivers, et al., Local No. 600
(Union), affiliated with the International Brotherhood of Teamsters, AFL-
CIO, following the Union's
1
Overnite Transp. Co., 319 N.L.R.B. 964, 1995 WL 785173
(1995).
certification2 as the exclusive bargaining representative for a unit of
employees at Overnite's St. Louis, Missouri, terminal. In its final order,
the Board directed Overnite to cease and desist from refusing to bargain
with the Union. Overnite now argues that the underlying certification was
invalid because the Board failed to hold an evidentiary hearing regarding
Overnite's allegations of pre-election misconduct. The Board cross-
petitions for enforcement of its order. For the reasons discussed below,
we deny the petition for review and enforce the Board's order.
I. Background
Overnite, a Virginia corporation, is an interstate trucking firm
which operates a terminal in St. Louis, Missouri. On January 17, 1995, the
Union filed a representation petition with the Board seeking certification
as the exclusive bargaining representative of the approximately 105 full-
time and regular part-time city drivers, road drivers, and mechanics
employed at Overnite's St. Louis terminal. Pursuant to a stipulated
election agreement executed by Overnite and the Union, which was
subsequently approved by the regional director, the Board conducted a
secret-ballot election by eligible Overnite employees on February 28, 1995.
The tally of ballots showed that, of the 105 eligible voters, 64 voted for
the Union, 37 voted against the Union, and 4 cast challenged ballots.
On March 7, 1995, Overnite filed timely objections, asserting that
misconduct by the Union and Union supporters affected the outcome of the
election. On April 19, 1995, the regional director recommended that the
election be upheld and the Union certified by the Board. Overnite filed
timely exceptions to the regional
2
Overnite Transp. Co., No. 14-RC-11501, slip op. at 2
(N.L.R.B. June 16, 1995) (adopting the findings and recommendations
of the regional director).
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director's report and requested that the Board set aside the election or,
in the alternative, hold a hearing to resolve substantial and material
factual disputes concerning Overnite's allegations of pre-election
misconduct. On June 16, 1995, the Board adopted the regional director's
findings, rejected Overnite's request for a hearing, and certified the
Union as the exclusive bargaining representative.
Following its certification, the Union requested that Overnite
bargain, but Overnite refused, stating that it intended to contest the
validity of the Union's certification. The Union filed an unfair labor
practice charge with the Board, and the regional director, on behalf of the
General Counsel, filed a complaint alleging that Overnite had violated §
8(a)(1), (5) of the Act and subsequently moved for summary judgment.
Overnite admitted it had refused to bargain, but, as an affirmative
defense, challenged the validity of the Union's certification on the ground
that Overnite had been improperly denied an evidentiary hearing on its
objections to the election. On December 14, 1995, the Board granted the
General Counsel's motion for summary judgment against Overnite and ordered
Overnite to cease and desist from the unfair labor practice and bargain
with the Union. Overnite filed the present petition for review, and the
Board cross-petitioned for enforcement of its order. Additionally, the
Union intervenes in support of the Board's order.
II. Discussion
Overnite argues that it established the existence of substantial and
material issues of fact regarding acts of pre-election misconduct by the
Union or Union supporters and, therefore, it was entitled to an evidentiary
hearing on its objections to the election. "The trier of fact must conduct
a hearing to determine the validity of a certification election when there
are substantial and material issues of fact." NLRB v. Monark
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Boat Co., 713 F.2d 355, 356 (8th Cir. 1983) (Monark Boat) (citing NLRB v.
Griffith Oldsmobile, Inc., 455 F.2d 867, 868 (8th Cir. 1972) (Griffith
Oldsmobile)). The applicable regulations state in pertinent part that
"[s]uch hearing shall be conducted with respect to those objections or
challenges which the regional director concludes raise substantial and
material factual issues." 29 C.F.R. § 102.69(d).
An employer's demand for a hearing cannot be based on simple
disagreement with the regional director's findings. The standard for
determining whether an evidentiary hearing is warranted has been summarized
by this court as follows:
It is incumbent upon the party seeking a hearing to
clearly demonstrate that factual issues exist which can
only be resolved by an evidentiary hearing. The
exceptions must state the specific findings that are
controverted and must show what evidence will be
presented to support a contrary finding or conclusion.
. . . Mere disagreement with the Regional Director's
reasoning and conclusions [does] not raise "substantial
and material factual issues." This is not to say that
a party cannot except to the inferences and conclusions
drawn by the Regional Director, but that such
disagreement, in itself, cannot be the basis for
demanding a hearing. To request a hearing a party must,
in its exceptions, define its disagreements and make an
offer of proof to support findings contrary to those of
the Regional Director.
Griffith Oldsmobile, 455 F.2d at 868-69 (citations omitted) (quoting NLRB
v. Tennessee Packers, Inc., 379 F.2d 172, 178 (6th Cir.) cert. denied, 389
U.S. 958 (1967)).
Although the Eighth Circuit has not explicitly stated the applicable
standard of review for this type of case, previous decisions of this court
have been based on de novo review. See, e.g., Monark Boat, 713 F.2d at
356-57 (considering de novo whether objections alleging pre-election
misconduct created substantial and material factual issues); Beaird-Poulan
Div., Emerson Elec. Co. v.
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NLRB, 571 F.2d 432, 434 (8th Cir. 1978) (same); Griffith Oldsmobile, 455
F.2d at 868 ("[t]he initial question we must consider is whether [the
employer], in its objections to the election, raised substantial and
material factual issues necessitating a hearing").3 We now turn to
Overnite's objections to determine whether they raise substantial and
material issues of fact concerning pre-election misconduct sufficient to
require an evidentiary hearing.
Overnite first alleged that the Union, by and through its agents and
supporters, threatened a known Overnite supporter with bodily harm. In
support of this objection, Overnite presented five employees' sworn
affidavits concerning alleged threats of bodily harm. One affiant stated
that an open Union supporter told him "you better get yourself a bullet
proof vest" while the affiant was on his way to the polling place.4
Another affiant stated that the same Union supporter verbally threatened
another employee who was talking unfavorably about the Union's proposed
pension plan. In response, the Union submitted a sworn statement from its
business
3
By contrast, in Nabisco, Inc. v. NLRB, 738 F.2d 955, 956-58
(8th Cir. 1984), this court held that the regional director did not
abuse his discretion in overruling the employer's objection to the
election because the employer had failed even to make a prima facie
showing of substantial and material factual issues which, if true,
would warrant setting aside the election. The regional director
found that no issues concerning the fairness of the election had
been raised, id. at 958, because, for example, "it [was] not
alleged that any of the employees involved were intimidated by [the
alleged incidents of pre-election misconduct], nor [was] it alleged
that the Union was responsible for them," id. at 957. Having
affirmed the regional director's decision to overrule the
employer's objection, this court then went on to hold that the
regional director properly declined to hold an evidentiary hearing.
Id. at 958.
4
The affiant allegedly told three other co-workers about the
threatening statement by the Union supporter. One of those co-
workers stated in a sworn statement that he had already voted at
the time he was told about the threat. Overnite also submitted the
sworn statements of three other employees, each of whom admitted to
having heard or heard about the threat after having already voted.
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representative that the Union supporter did not have the authority to speak
on behalf of the Union, that the Union supporter in question was not
employed by the Union, and that the Union did not direct the individual to
threaten employees. Based on this evidence, the regional director
concluded that the statements were isolated, unaccompanied by physical
violence, and not widely disseminated.
Overnite also alleged that the Union, by and through its agents and
supporters, vandalized the personal property of Overnite employees. In
support of this objection, Overnite submitted the sworn affidavits of three
employees who stated that their cars had been damaged in Overnite's parking
lot. They further stated that they had ceased wearing pro-Union buttons
to work shortly before their vehicles were damaged. In response, the
Union's business representative declared in his sworn statement that the
Union did not and would not request or authorize any employee to engage in
the destruction of property. The regional director found that Overnite had
failed to establish a sufficient nexus between the acts of vandalism and
the Union. The regional director further stated that the investigation
failed to reveal the identity of the person or persons who caused the
property damage. Finally, the regional director concluded that the
incidents were isolated, unaccompanied by threats, and not attributable to
the Union.
Overnite further alleged that the Union, by and through its agents
and supporters, unlawfully engaged in surveillance by videotaping and
taking photographs of employees at a company-sponsored dinner. In support
of this objection, Overnite submitted the sworn affidavits of employees who
witnessed Union supporters and individuals wearing Union hats videotaping
and taking photographs near the entrance to the dinner. In response, the
Union's business representative stated in his sworn statement that no Union
official at the dinner had a camera and that no Union official requested
anyone to bring a video camera to the dinner.
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The regional director noted that, with the exception of one Union
supporter, the evidence failed to reveal the identity of the individuals
gathered outside the dinner. The regional director also concluded that the
mere fact that an individual was wearing a Union hat or shirt was not
sufficient to establish agency status and, in any event, the evidence
failed to show that the conduct affected a significant number of employees.
The alleged objectionable acts must be analyzed in terms of their
cumulative effect. See Monark Boat, 713 F.2d at 358-59. "During a
representation election the Board must provide 'a laboratory in which an
experiment may be conducted, under conditions as nearly as ideal as
possible, to determine the uninhibited desires of the employees.'" Id. at
357 (quoting General Shoe Corp., 77 N.L.R.B. 124, 127 (1948)).
In evaluating claims of election misconduct, the Board and the Eighth
Circuit have distinguished between misconduct committed by a union
representative or agent and misconduct committed by third parties. Millard
Processing Servs., Inc. v. NLRB, 2 F.3d 258, 261 (8th Cir. 1993) (Millard
Processing), cert. denied, 510 U.S. 1092 (1994); Monark Boat, 713 F.2d at
360; Pepsi-Cola Bottling Co., 289 N.L.R.B. 736, 1988 WL 213816, at *2
(1988). When the misconduct is directly attributable to the union, the
Board will set aside the election when the conduct reasonably tended to
interfere with the employees' free and uncoerced choice in the election.
Millard Processing, 2 F.3d at 261 (citation omitted). However, with
respect to third party conduct, the election will be overturned only if the
conduct created an atmosphere of fear and reprisal such as to render a free
expression of choice impossible. Id. (citation omitted). Thus, as a
threshold matter in the present case, we consider whether the alleged
misconduct was committed by Union agents or by third parties.
The regional director found that Overnite failed to show that the
threatening statements by the Union supporters, the anonymous
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acts of vandalism, or the videotape surveillance were attributable to the
Union or its agents. "In determining whether an individual was acting as
an agent of a union for purposes of the Act, we apply general common law
principles of agency." Id. at 262 (citing NLRB v. International Bhd. of
Boilermakers, Local No. 83, 321 F.2d 807, 810 (8th Cir. 1963)). Overnite
argues, based upon the circumstantial evidence, that the supporters
identified in Overnite's exceptions acted with the apparent authority of
the Union and therefore may be considered agents of the Union. This court
has previously explained that "[a]pparent authority results from a
manifestation by a principal to a third party that reasonably leads a third
party to believe that another person is acting as the principal's agent."
Millard Processing, 2 F.3d at 262. "To create apparent authority, the
principal must either intend to cause the third party to believe that the
agent is authorized to act for it, or should realize that its conduct is
likely to create such a belief." Id. Upon careful review of the record
in the present case, we agree with the regional director that Overnite
failed to establish a substantial and material issue of fact as to whether
the individuals in question were acting with either the actual or the
apparent authority of the Union.5 Consequently, Overnite can prevail only
if it has raised a substantial and material factual issue as to whether an
atmosphere of fear and reprisal existed which rendered a free election
impossible. Id. at 261.
5
The Board contends that Overnite, in its exceptions filed
with the Board, failed to contest the regional director's
conclusions with respect to this agency issue. Thus, the Board
argues that Overnite is precluded, pursuant to Section 10(e) of the
Act, from now asserting its agency argument. Section 10(e)
provides, in pertinent part, that "[n]o objection that has not been
urged before the Board . . . shall be considered by the court,
unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances." 29 U.S.C. §
160(e). Upon review of the exceptions that Overnite filed with the
Board, it is clear to this court that Overnite did in fact object
to the regional director's findings on this issue. Accordingly,
the Board's argument to the contrary is without merit.
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Overnite argues that the cumulative effect of the alleged incidents
of pre-election misconduct created an atmosphere of fear and reprisal.
Overnite relies on this court's decision in Monark Boat to support its
position. In Monark Boat, the employer filed objections alleging multiple
incidents of pre-election misconduct. 713 F.2d at 356-57. Some of the
alleged incidents included the following: (1) a known union supporter
threatened vandalism of employees' cars if they crossed the picket line;
(2) a known union supporter threatened that employees who crossed the
picket line could get struck with bricks and clubs; (3) a union supporter
stated that people could "get killed" for crossing the picket line; (4) on
the morning of the election, a pro-Union employee stated that employees who
refuse to join the union "won't be here very long"; and (5) union
supporters had allegedly poisoned a supervisor's dog in order to coerce the
supervisor into supporting the union and cooperating with the union as an
informant. Id. at 357-358. We held that these alleged incidents, when
considered cumulatively, raised an inference of coercion and intimidation
sufficient to require a hearing. Id. at 358. In reaching this conclusion,
this court specifically noted that 33 of the 185 eligible employees (more
than enough to affect the outcome) abstained from voting, which further
suggested that many may have been afraid to vote. Id. at 359.
By contrast to the allegations in Monark Boat, the cumulative
incidents of pre-election misconduct alleged by Overnite in the present
case do not substantially and materially suggest that an atmosphere of fear
and reprisal existed so as to render a free election impossible. After
careful review of the record, we hold that the allegations concerning
threats of bodily harm, even if true, do not create a sufficient inference
of coercion and intimidation. The evidence shows that the threat made by
a Union supporter to another employee, "you better get yourself a bullet
proof vest," was overheard by only two employees who had not yet voted.
Every other employee who became aware of the statement had
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already voted. Moreover, all 105 eligible employees in the present case
cast ballots at the election, which supports the conclusion that the
alleged threats of bodily harm were isolated incidents and not widely known
to, or taken seriously by, other employees prior to the election.
As to the acts of vandalism alleged by Overnite, they were anonymous,
and no affidavit or other evidence presented in the course of the regional
director's investigation identified the individuals responsible for the
damage. Anonymous acts of vandalism ordinarily do not warrant setting
aside an election. For example, in Nabisco, Inc. v. NLRB, 738 F.2d 955,
957 (8th Cir. 1984) (Nabisco), an employee who had urged his co-workers to
vote against the union during the campaign, had rocks thrown at his home
by an unidentified person who shouted "you betrayed me"; meanwhile,
anonymous phone calls were made to two employees who had demonstrated
support for the employer. We held that these acts, although troubling, did
not amount to a pattern of pre-election misconduct sufficient to require
an evidentiary hearing. Id. at 957-58. Similarly, in the present case,
the anonymous acts of vandalism cannot be directly attributed to the Union
or its supporters and are not sufficiently widespread and threatening to
warrant setting aside the election.6
Finally, when considered alone or together with the other
allegations, Overnite's claim that videotape surveillance was conducted at
the company-sponsored dinner does not establish a substantial and material
issue as to whether there was an atmosphere of fear and coercion at the
time of the election. The Union scheduled a pro-Union rally to be held
outside the dinner
6
We also recognized that, if this court were to impute
anonymous acts to one party, such as the Union, without an adequate
evidentiary basis, we might provide an incentive for parties who
would unlawfully attempt to set aside an election by creating
anonymous threatening incidents and then blaming the other party.
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facility. Several Union officials, members, and supporters attended the
rally. Affidavits from employees who attended the dinner stated that a few
unknown individuals wearing Union hats and shirts were videotaping and
taking photographs. The regional director's investigation revealed that
no Union officer or supporter threatened any retaliation in connection with
employees' attendance at the dinner or the videotaping that occurred at
that event. In Millard Processing, 2 F.3d at 263, this court held that the
evidence in that case was insufficient to warrant setting aside an election
even though an individual, who was wearing a union hat and was positioned
near union organizers, videotaped employees at their work site within days
before the election. In that case, we held that third party videotaping
for a non-coercive and non-retaliatory purpose was permissible. Id.7 In
the present case, the evidence not only fails to reveal the identity of the
individuals videotaping the company-sponsored dinner but also fails to show
that the conduct affected the outcome of the election.8
7
In Millard Processing Servs., Inc. v. NLRB, 2 F.3d 258, 263
(8th Cir. 1993), cert. denied, 510 U.S. 1092 (1994), a local cable
producer wearing a union hat videotaped employees entering the
plant the day before the election; the union explained that the
producer was videotaping the employees for a local cable television
program. Because the videotaping was for a non-coercive purpose,
we reasoned that the election should not be set aside. Id.
8
On this issue, Overnite relies on Mike Yurosek & Son, Inc.,
292 N.L.R.B. 1074, 1989 WL 223861 (1989) (Yurosek), and Pepsi-Cola
Bottling Co., 289 N.L.R.B. 736, 1988 WL 213816 (1988) (Pepsi-Cola).
In Yurosek, the Board set aside an election where photographs of
employees were taken almost daily by union agents and, on one
occasion, a representative of the union allegedly stated "[w]e've
got it on film; we know who you guys are . . . after the [u]nion
wins the election, some of you may not be here." 1989 WL 223861,
at *1. In Pepsi-Cola, the Board set aside an election where the
secretary-treasurer of the union videotaped employees as they were
being handed union leaflets. 1989 WL 213816, at *1. By contrast,
the evidence in the present case does not indicate that the
videotaping was performed by union agents as was the case in both
Yurosek and Pepsi-Cola. Furthermore, the videotaping was not
accompanied by coercive statements, as in Yurosek, or conducted
during a time that the Union was handing out literature, as in
Pepsi-Cola. See also Nu Skin Int'l, Inc., 307 N.L.R.B. 223, 1992
WL 87489 (1992) (no coercion where the photographing of employees
occurred at a union-sponsored picnic).
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III. Conclusion
In sum, we hold that there are no substantial and material issues of
fact as to whether the alleged acts of pre-election misconduct were
committed by agents of the Union or whether those acts, either individually
or cumulatively, created an atmosphere of fear and reprisal so as to render
a free election impossible. Thus, we hold that the Board did not err in
declining to hold an evidentiary hearing. We deny Overnite's petition for
review and enforce the Board's order.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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