National Labor Relations Board, in No. 82-3324 v. J-Wood/a Tappan Division, in No. 82-3334

720 F.2d 309, 114 L.R.R.M. (BNA) 3041, 1983 U.S. App. LEXIS 15532

• Court: Court of Appeals for the Third Circuit
• Decided: November 4, 1983
• Docket: 82-3324, 82-3334
• Status: Published

Opinions

OPINION OF THE COURT

ROSENN, Circuit. Judge.

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.¹ 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.

I.

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.² 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 “[i]f 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.’-’³ 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 evi-dentiary 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.⁴ 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.

II.

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.

A.

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 finding] 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 “point[s] 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.

B.

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).⁵ 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, including the specific identification of Ross as a member of the organizing plant committee, is a significant piece of evidence to support the Company’s allegations that Ross was a union agent or was known throughout the plant as a union agent.⁶ Although the article is not proof of agency, taken with the evidence of the threats made by Ross, it is sufficient to warrant a hearing on the agency issue.

The Board has taken the view in a number of cases that the actions of employees who serve on an in-plant organizing committee are only attributable to the Union where there is additional evidence that the plant committee itself acts on the Union’s behalf. Thus, in Cambridge Wire Cloth Co., 256 N.L.R.B. 1135 (1981), enforced, 679 F.2d 885 (4th Cir.1982), the Board stated:

Employee members of an in-plant organizing committee are not, simply by virtue of such membership, agents of their union for the purpose of making threats or statements.... Only where the in-plant organizing committee is itself shown to be an agent of the union will the conduct of committee members be imputed to the union.

256 N.L.R.B. at 1139 (footnote omitted).⁷ See Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 649 F.2d 589, 594 (8th Cir.1981) (union not responsible for statements of pro-Union committee members); Certain-Teed Products Corp. v. NLRB, 562 F.2d 500, 509-10 (7th Cir.1977) (campaign activity alone does not establish the requisite close connection with the Union to make an employee a union agent); Firestone Steel Products Co., 235 N.L.R.B. 548, 550 (1978); Mike Yurosek & Sons, Inc., 225 N.L.R.B. 148, 149-150 (1976), enforced, 597 F.2d 661 (9th Cir.), cert. denied, 444 U.S. 839, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979).

On the other hand, in two cases the Fourth Circuit has imputed to the Union the actions of employees belonging to the “plant committee” where there was some additional evidence that the plant committee members had been “deputized” to act on the Union’s behalf. In NLRB v. Georgetown Dress Corp., 537 F.2d 1239 (4th Cir. 1976), the rank-and-file employees who committed certain acts of misconduct during the organizing campaign were held to be union agents because they were members of the in-plant organizing committee, and the evidence showed that the committee was the Union’s only in-plant contact with the workers and that the members of the committee “in the eyes of the other employees were the representatives of the union on the scene and the union authorized them to occupy that position.” Id. at 1244. Similarly, in PPG Industries, Inc. v. NLRB, 671 F.2d 817 (4th Cir.1982), the misconduct of members of the in-plant organizing committee was attributed to the Union because the evidence showed that the union organizer had requested the committee members to solicit support for the Union, to distribute union literature, to transport membership cards to the Union s office, and generally to serve as the Union’s “eyes and ears” in the plant and to report on events in the plant during the election campaign. Id. at 819.

Concededly, in the instant case J-Wood proffered no evidence to the Regional Director concerning the role of the plant committee or its relationship to the Union. But we believe the Regional Director imposed too heavy a burden on J-Wood in deciding whether to hold an evidentiary hearing on the Company’s election objections. The question before the Regional Director was not whether J-Wood had demonstrated Ross’s agency status, but only whether the Company proffered adequate evidence to show that the agency question was a “substantial and material factual issue” under Anchor Inns that, if resolved in its favor, would require setting the election aside. We believe that evidence of the Unions post-election publication of Ross s memberS^P the organizing plant committee was a relevant and highly probative item of evidence of agency status that warranted an evidentiary hearing, especially when the election results depended upon only one vote.

Under Anchor Inns a party objecting to a representation election must produce adequate evidence to show that there is substance to its allegations and not mere rhetoric. But none of our cases contemplate that an employer is required to present sufficient evidence to establish that the objections must be sustained before it can obtain an evidentiary hearing. The whole purpose for the hearing is to inquire into the allegations to determine whether they are meritorious; it makes little sense to expect the employer to prove its case, especially without power of subpoena, to the Regional Director before a hearing will be granted,

It is important to remember that Cambridge Wire, Georgetown Dress, and PPG Industries, supra, were all decided after full evidentiary hearings on the election objections. By contrast, an employer considering whether to file election objections has little time to gather evidence. Objections to con¿uct affecting the election results must, by Board rule, be filed within five days of the election. See 29 C.F.R. § 102.69(a).⁸ In addition, an employer seeking evidence in this kind of a case has access to very limited discovery, NLRB v. Bristol Spring Manufacturing Co., 579 F.2d 704, 707 (2d Cir. 1978); it must proceed in an exceedingly careful manner to avoid being accused of coercive interrogation of employees. See Johnnie’s Poultry Co., 146 N.L.R.B. 770, 775 (1964), enforcement denied, 344 F.2d 617 (8th Cir.1965). Accordingly, it is unreasonable to expect the employer to document its objections with the kind of evidence that realistically could be uncovered only by subpoena and an adversarial hearing.⁹ Cf. NLRB v. Nixon Gear, Inc., 649 F.2d 906, 913-14 (2d Cir.1981) (Board abused its discretion in denying a hearing because employer had not produced evidence of intent that could only be uncovered through a hearing). All that Anchor Inns requires is that the “objector’s proffer of evidence must prima facie warrant setting aside the election” and may not be “conclusory” or “vague” but must “point to specific events and specific people.” J-Wood met this standard by naming the specific person who made the threatening statements and identifying the employee to whom they were made, facts confirmed by the Regional Director’s investigation, and by producing the union article specifically identifying Ross as a member of the plant committee “involved in the drive.” Thus, it was an abuse of discretion for the Regional Director not to hold a hearing to determine Ross’s status.

III.

The Board contends that even if the Company raised a substantial and material question of union agency with respect to Ross, it nonetheless was not entitled to a hearing because, irrespective of his status, Ross’s statement could not have influenced the election results.

The Regional Director’s investigation essentially confirmed the Company’s allegation that Ross told employee Dobson that if the Union came in and Dobson refused to sign a card, Dobson would lose his job. (“If you don’t sign that paper, you’ll be out the door.”) Ross allegedly also asked Dobson if he understood that if the Union prevailed in the election it would not allow anyone to work at J-Wood without being a union member. If Ross actually made the statement Dobson reported,¹⁰ it was a misrepresentation, because the Union could not make continued employment conditional upon union membership unless it negotiated a union security clause with the Company. Without a hearing, it is difficult to know whether and how Ross’s statements might have influenced Dobson’s vote or the votes of other bargaining unit employees to whom Dobson might have relayed the statement.¹¹ We can do nothing more than speculate as to whether the remarks might have helped or hurt the Union’s organizing effort. In view of the Union’s one-vote margin of victory in the election, we believe it was essential for the Regional Director to conduct a hearing to inquire into the effect of Ross’s statements. We agree with the Second Circuit that the necessity for a hearing is particularly great when an election is close, for under such circumstances, “ ‘even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election.’ ” NLRB v. Bristol Spring Manufacturing Co., supra, 579 F.2d at 707 (quoting Henderson Trumbull Supply Corp. v. NLRB, 501 F.2d 1224, 1230 (2d Cir.1974)). See Wells Fargo Guard Service v. NLRB, supra, 659 F.2d at 370-71; Monmouth Medical Center v. NLRB, 604 F.2d 820, 823 n. 4 (3d Cir.1979). In the instant case there was á substantial and material factual issue concerning the potential impact of Ross’s statements on the election results, and the Regional Director abused his discretion by failing to hold a hearing.¹²

IV.

We therefore hold that the Regional Director should have held an evidentiary hearing on J-Wood’s election objection to consider whether William Ross’s actions were attributable to the Union and whether Ross’s statements may have influenced employees’ freedom of choice in the election. We will deny enforcement of the bargaining order against J-Wood and grant the Company’s petition for review. The case will be remanded to the Board for further proceedings not inconsistent with this opinion.

1 . The case is before this court pursuant to sections 10(e) and (f) of the Act, 29 U.S.C. §§ 160(e), (f).

2 . The Company also accused the Union of misrepresentations in connection with a letter mailed to J-Wood employees. The Company has not pursued this objection on appeal.

3 . Eby reportedly also said that if the employee wanted to stay on the good side of those who favored the Union, he should vote yes.

4 . Because a Board decision in a representation proceeding is not an appealable final order, J-Wood was only able to obtain judicial review of the Board’s decision by the circuitous method of refusing to bargain with the Union, thereby exposing itself to unfair labor practice charges. On appeal from the Board’s resolution of these unfair labor practice charges, this court may consider the dispute underlying the election. See Anchor Inns, Inc. v. NLRB, 644 F.2d 292, 293 (3d Cir.1981).

5 . This regulation was amended in 1982 to provide that an evidentiary hearing “shall be conducted with respect to those objections or challenges which the regional director concludes raise substantial and material factual issues.”

6 . We see no substance to the dissenting opinion’s attempt to distinguish Ross’s reputation from the fact of agency. Either express authority or apparent authority would suffice to make Ross’s statements attributable to the Union.

7 . In Cambridge Wire the Board found that the statements of one Robbins, a member of the plant committee, were not attributable to the Union, explaining:

As to the agency status of the in-plant organizing committee, the evidence establishes that it was without any formal structure and was composed of any and all interested employees who gave their support voluntarily and without pay. Moreover, there were two paid union representatives staying in a local motel prior to the election, whose presence and availability were known to the employees. Under these circumstances, we find that the in-plant organizing committee was not an agent of the Union ....

Id. (footnotes omitted).

8 . Although the Board’s rules require that an objection be filed within five days, the objecting party is not also required to produce evidence to support the objection within that five-day period. 29 C.F.R. § 102.69(a) provides that the party “shall, upon request, promptly furnish to the regional director the evidence available to it to support the objections.”

Nonetheless, since the objection itself must be accompanied by a statement of reasons, the five-day rule does impose severe time constraints on an objecting party.

9 . The purpose of proving that Ross and his committee were known in the plant to be union agents was not to establish his reputation as suggested by the dissent but to establish apparent authority. An adversarial hearing could provide evidence that might not otherwise be available to the employer without power to subpoena employees and union officials and the opportunity to cross-examine. For example, some questions that might be answered at such a hearing that would shed light on agency or apparent agency are whether Ross and the in-plant organization committee appeared in the eyes of the other employees to represent the union on the scene and whether the union fostered such appearance of authority. The post-election publication may be read to indicate that the Union requested Ross to solicit support for the Union. If so, what instructions did the Union give him and did Union officers encourage, know, or condone the threats Ross made to Dobson? Did the Union authorize Ross to distribute union literature and transport the union membership cards to the union office? Did Ross report on election and campaign developments to the Union and to what extent did he serve as the eyes and ears of the Union during the election campaign? Did union officers represent to plant employees or create an impression in the plant that the in-plant organizing committee was acting in behalf of the Union during the election campaign or that they were acting under union direction or with their blessing in the election campaign?

10 . Although Ross told the Regional Director that his comment was in the context of a discussion of union security clauses, the Regional Director was required by Anchor Inns to credit Dobson’s version in deciding whether to hold a hearing.

11 . The Board has frequently shown a willingness to assume that threats made to one employee will be disseminated to other employees. See United Broadcasting Co. of New York, Inc., 248 N.L.R.B. 403 (1980); Continental Inv. Co., 236 N.L.R.B. 237 (1978).

12 . In its brief, counsel for the Board makes the astonishing assertion that “threats of job loss by union agents do not warrant setting aside an election.” Brief at 22 n. 12. Although we recognize that in certain situations a threat of this nature may have little impact on voting behavior, or may even induce employees to vote against a union, there is no way to judge the effect of a threat without inquiring into the circumstances surrounding it. The cases cited by the Board to support its position are readily distinguishable from the instant case. In NLRB v. Bancroft Mfg. Co., 210 N.L.R.B. 1007, 1014 (1974), enforced, 516 F.2d 436, 444 (5th Cir.1975), cert. denied, 424 U.S. 914, 96 S.Ct. 1112, 47 L.Ed.2d 318 (1976), the administrative law judge found — after a full evidentiary hearing on the employer’s election objections — that the employer had put to rest the union’s insinuation that employees who did not support the union in the election might lose their jobs, and that employees could evaluate the statements as mere campaign propaganda. In NLRB v. Sumter Plywood Corp., 535 F.2d 917 (5th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1105, 51 L.Ed.2d 538 (1977), the court affirmed the Board’s decision not to hold a hearing to determine the effect of the union agent’s threats, because the union had won the election by an overwhelming margin. In the instant case, the Union won by only a single vote.