[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 20, 2001 No. 00-12665 THOMAS K. KAHN CLERK ________________________
NLRB No. 12-CA-20506
NATIONAL LABOR RELATIONS BOARD,
Petitioner-Cross-Respondent,
versus
GLADES HEALTH CARE CENTER,
Respondent-Cross-Petitioner.
________________________
Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board _________________________ (July 20, 2001)
Before HULL, RONEY and GOODWIN*, Circuit Judges.
RONEY, Circuit Judge:
_______________ *Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by designation. The National Labor Relations Board (Board) and “Unite! Union of
Needletrades, Industrial and Textile Employees, AFL-CIO, CLC (Union) as
intervenor petition for enforcement of the Board’s orders directing the employer,
Glades Health Care Center (Company) to recognize and bargain with the Union. The
Company cross-petitions for review and to have set aside orders of the Board (1)
certifying the Union as the collective bargaining representative for certain of the
Company’s employees and (2) finding that the Company engaged in an unfair labor
practice by refusing to bargain with the Union in violation of § 8(a)(5) of the National
Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1). The Company alleges several
pre-election improprieties the cumulative effect of which it argues has tainted the
laboratory conditions required in such elections. See General Shoe Corp., 77 NLRB
124,127 (1948). Specifically, the Company claims that its refusal is justified and the
Board should have set aside the election because (1) the Union engaged in campaign
practices that are prohibited under Peerless Plywood Co., 107 NLRB 427 (1953) and
its progeny; (2) an eligible voter was improperly disenfranchised when she received
two phone calls from purported Union agents with one caller asking if the Union had
her support, and the other caller providing false information regarding the time of the
election; and (3) a torn piece of a ballot was discovered following the election. The
Company also claimed error in the Board’s refusal to reopen the record to admit
2 additional evidence and in ordering the Company to bargain and provide information.
Based upon the findings of fact by which this Court is bound, we are not persuaded
that the Board erred in holding that the Union’s rally did not violate the rule in
Peerless Plywood. Accordingly, we hold that the Board did not abuse its discretion
in certifying the Union as the collective bargaining representative for certain of the
Company employees, and the Board’s petition for enforcement is GRANTED. The
Company’s cross-petition for review and to have the Board’s orders set aside is
DENIED.
1. The Election.
Glades Health Care Center operates a nursing home in Pahokee, Florida. On
May 24, 1999, the Union filed a petition with the Board seeking certification as the
collective bargaining representative of the Health Care Center’s certified nursing
assistants (CNAs), housekeeping, laundry and maintenance employees and others.
Pursuant to a stipulated election agreement entered into by all parties, on July 7, the
Board conducted a secret-ballot election at the Company.
The Union had set up shop in a vacant house across a two-lane road that borders
the facility about fifty yards away. The house is clearly visible from the front entrance
of the facility, from the west wing of the facility and some residents’ windows. On
July 6, 1999, the day before the election, the Union set up a rally from about 2:15 p.m.
3 until about 4:30 p.m. during which it broadcast music and speeches from the driveway
of the house using bullhorns and a public address system. Employees at the Company
work in two shifts: day shift is from 7:00 a.m. to 3:00 p.m. and afternoon shift is from
3:00 p.m. to 11:00 p.m. The rally coincided with this shift change.
When the election was completed, the tally of ballots showed that of the 77
eligible voters, 38 voted for the Union, 30 voted against and 4 were challenged
ballots. The Company filed seven objections, arguing that the Board should set aside
the election because of the Union’s pre-election conduct. After conducting a hearing
on the objections, the hearing officer issued a report recommending that the
Company’s objections be overruled and that the Union be certified as the employees’
bargaining representative. The Company filed an exception to the hearing officer’s
findings, and on October 12, 1999, the Board issued a decision adopting the hearing
officer’s findings and certifying the Union.
The Company then sought to reopen the record to admit an undated articled
from the Union’s newsletter as evidence the Company claimed would require the
Board to sustain one of the Company’s election objections and set aside the election.
The Board denied the Company’s motion, finding that the article would not alter the
Board’s decision.
4 Following the Union’s certification, the Company refused to bargain. The
Board found that the Company violated § 8(a)(5) and (1) of the National Labor
Relations Act, as amended, 29 U.S.C. 158(a)(5) and (1), by refusing to bargain with
the Union, and required the Company to bargain with the Union upon request and to
post copies of a remedial notice. The Board and the Union as intervenor petition this
Court for enforcement of the Board’s order, and the Company seeks review and to
have the order set aside.
2. The Peerless Plywood Rule.
In Peerless Plywood Co., 107 N.L.R.B. 427 (1953) the Board established a rule
to be applied in all election cases that prohibits both employers and unions “from
making election speeches on company time to massed assemblies of employees within
24 hours before the scheduled time for conducting an election.” 107 NLRB at 429.
On the afternoon before the election, the Employer assembled employees on its
property to have them listen to a speech. The Board explained that such a speech
“tends to create a mass psychology which overrides arguments made through other
campaign media and gives an unfair advantage to the party...who in this manner
obtains the last most telling word.” 107 NLRB at 429. The key to the decision was
that the employees’ attendance at the election speech was not voluntary.
5 Subsequently, the Board held it to be a violation when within twenty-four hours
of the election and continuing for more than seven hours, the union broadcast
campaign speeches and other material from a sound truck parked on the street across
from the employer’s plant. See United States v. Gypsum, 115 NLRB 734 (1956).
The broadcast was audible inside parts of the plant. Approximately 50 of the 325
workers at the plant heard “or were in a position to hear” the sound trucks while
working at their usual stations. Gypsum, 115 NLRB at 735.
Likewise, in Industrial Acoustics v. NLRB, 912 F.2d 717 (4th Cir. 1990) on the
day before the election and on election day, the Union parked a car, mounted with a
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 20, 2001 No. 00-12665 THOMAS K. KAHN CLERK ________________________
NLRB No. 12-CA-20506
NATIONAL LABOR RELATIONS BOARD,
Petitioner-Cross-Respondent,
versus
GLADES HEALTH CARE CENTER,
Respondent-Cross-Petitioner.
________________________
Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board _________________________ (July 20, 2001)
Before HULL, RONEY and GOODWIN*, Circuit Judges.
RONEY, Circuit Judge:
_______________ *Honorable Alfred T. Goodwin, U.S. Circuit Judge for the Ninth Circuit, sitting by designation. The National Labor Relations Board (Board) and “Unite! Union of
Needletrades, Industrial and Textile Employees, AFL-CIO, CLC (Union) as
intervenor petition for enforcement of the Board’s orders directing the employer,
Glades Health Care Center (Company) to recognize and bargain with the Union. The
Company cross-petitions for review and to have set aside orders of the Board (1)
certifying the Union as the collective bargaining representative for certain of the
Company’s employees and (2) finding that the Company engaged in an unfair labor
practice by refusing to bargain with the Union in violation of § 8(a)(5) of the National
Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1). The Company alleges several
pre-election improprieties the cumulative effect of which it argues has tainted the
laboratory conditions required in such elections. See General Shoe Corp., 77 NLRB
124,127 (1948). Specifically, the Company claims that its refusal is justified and the
Board should have set aside the election because (1) the Union engaged in campaign
practices that are prohibited under Peerless Plywood Co., 107 NLRB 427 (1953) and
its progeny; (2) an eligible voter was improperly disenfranchised when she received
two phone calls from purported Union agents with one caller asking if the Union had
her support, and the other caller providing false information regarding the time of the
election; and (3) a torn piece of a ballot was discovered following the election. The
Company also claimed error in the Board’s refusal to reopen the record to admit
2 additional evidence and in ordering the Company to bargain and provide information.
Based upon the findings of fact by which this Court is bound, we are not persuaded
that the Board erred in holding that the Union’s rally did not violate the rule in
Peerless Plywood. Accordingly, we hold that the Board did not abuse its discretion
in certifying the Union as the collective bargaining representative for certain of the
Company employees, and the Board’s petition for enforcement is GRANTED. The
Company’s cross-petition for review and to have the Board’s orders set aside is
DENIED.
1. The Election.
Glades Health Care Center operates a nursing home in Pahokee, Florida. On
May 24, 1999, the Union filed a petition with the Board seeking certification as the
collective bargaining representative of the Health Care Center’s certified nursing
assistants (CNAs), housekeeping, laundry and maintenance employees and others.
Pursuant to a stipulated election agreement entered into by all parties, on July 7, the
Board conducted a secret-ballot election at the Company.
The Union had set up shop in a vacant house across a two-lane road that borders
the facility about fifty yards away. The house is clearly visible from the front entrance
of the facility, from the west wing of the facility and some residents’ windows. On
July 6, 1999, the day before the election, the Union set up a rally from about 2:15 p.m.
3 until about 4:30 p.m. during which it broadcast music and speeches from the driveway
of the house using bullhorns and a public address system. Employees at the Company
work in two shifts: day shift is from 7:00 a.m. to 3:00 p.m. and afternoon shift is from
3:00 p.m. to 11:00 p.m. The rally coincided with this shift change.
When the election was completed, the tally of ballots showed that of the 77
eligible voters, 38 voted for the Union, 30 voted against and 4 were challenged
ballots. The Company filed seven objections, arguing that the Board should set aside
the election because of the Union’s pre-election conduct. After conducting a hearing
on the objections, the hearing officer issued a report recommending that the
Company’s objections be overruled and that the Union be certified as the employees’
bargaining representative. The Company filed an exception to the hearing officer’s
findings, and on October 12, 1999, the Board issued a decision adopting the hearing
officer’s findings and certifying the Union.
The Company then sought to reopen the record to admit an undated articled
from the Union’s newsletter as evidence the Company claimed would require the
Board to sustain one of the Company’s election objections and set aside the election.
The Board denied the Company’s motion, finding that the article would not alter the
Board’s decision.
4 Following the Union’s certification, the Company refused to bargain. The
Board found that the Company violated § 8(a)(5) and (1) of the National Labor
Relations Act, as amended, 29 U.S.C. 158(a)(5) and (1), by refusing to bargain with
the Union, and required the Company to bargain with the Union upon request and to
post copies of a remedial notice. The Board and the Union as intervenor petition this
Court for enforcement of the Board’s order, and the Company seeks review and to
have the order set aside.
2. The Peerless Plywood Rule.
In Peerless Plywood Co., 107 N.L.R.B. 427 (1953) the Board established a rule
to be applied in all election cases that prohibits both employers and unions “from
making election speeches on company time to massed assemblies of employees within
24 hours before the scheduled time for conducting an election.” 107 NLRB at 429.
On the afternoon before the election, the Employer assembled employees on its
property to have them listen to a speech. The Board explained that such a speech
“tends to create a mass psychology which overrides arguments made through other
campaign media and gives an unfair advantage to the party...who in this manner
obtains the last most telling word.” 107 NLRB at 429. The key to the decision was
that the employees’ attendance at the election speech was not voluntary.
5 Subsequently, the Board held it to be a violation when within twenty-four hours
of the election and continuing for more than seven hours, the union broadcast
campaign speeches and other material from a sound truck parked on the street across
from the employer’s plant. See United States v. Gypsum, 115 NLRB 734 (1956).
The broadcast was audible inside parts of the plant. Approximately 50 of the 325
workers at the plant heard “or were in a position to hear” the sound trucks while
working at their usual stations. Gypsum, 115 NLRB at 735.
Likewise, in Industrial Acoustics v. NLRB, 912 F.2d 717 (4th Cir. 1990) on the
day before the election and on election day, the Union parked a car, mounted with a
loudspeaker system 25-30 yards from the plant entrance and broadcast music and
campaign messages during shift changes and lunch breaks. The Board held that the
broadcasts, which extended into working hours and the captive lunch break, violated
Peerless Plywood.
Bro-Tech Corp. t/a Purolite, 162 LRRM (BNA) 1399 (1999) was a case
questioning whether music involved the campaign speech targeted in Peerless
Plywood. The union in Bro-Tech, on the day of the election, broadcast tape-recorded
music with pro-union lyrics from a sound truck parked across the street from the
Employer’s facility from 7:00 a.m. to 4:30 p.m. The Board determined that these facts
established a violation of Peerless Plywood. “[J]ust prior to casting their votes, these
6 employees -- whether on their way in to work, on the job, and/or while leaving the
plant -- were exposed to the Union’s campaign broadcast whether they wished to hear
it or not.” 162 LRRM at 1402. The Board held it to be a violation even though the
“speech” was in the form of songs. These cases established the principle that an
election violation occurs when employee voters are forced to hear an election speech
either by attendance at a required meeting or when they are at their required work
stations.
The facts, as found by the Board, do not establish that such a violation occurred
in this case. It is clear that in these cases following Peerless Plywood, there was a
firm purpose to use vehicles equipped with loudspeakers to “intentionally broadcast
campaign speeches” into the employer’s facility so that the employees at their work
stations could not avoid hearing it. There was no other purpose. In this case, by
contrast, the Union held an off-premises rally, and while the Union used loudspeakers
at the rally, “there is no evidence that it intended to use them for any purpose other
than to broadcast its message to those who voluntarily chose to attend the rally.”
The Company argues that the Board improperly weighed the evidence in this
regard, and improperly failed to find that employees at their work stations were in a
position to hear the election speech, and therefore were a captive audience. Under our
standard of review, however, the findings of the Board will be upheld on appeal if
7 they are supported by substantial evidence in the record as a whole. See Cooper/T.
Smith, Inc. v. NLRB, 177 F.3d 1259(11th Cir.1999). It is not enough to show that
contrary findings might also be supported by the record.
There was varied testimony about the honking of horns and the disruption of
the ability of employees on the job to hear what was being said. The hearing officer
determined that:
Since there was no credited evidence to the contrary, it seems that the eligible voters were unable to hear the exact words of the speech. In fact, none of the eligible voters who testified indicated that they heard any specific words or phrases.
As to the argument that the employees were a captive audience, the hearing
officer found this:
The Employer has indicated that the employees were a captive audience because they were unable to escape the noise of the union rally while on working time. However, a review of the witness testimony failed to reveal any hint of a violation of the Peerless Plywood prohibitions. The credited evidence supplied by the witnesses shows that the CNAs assigned to the shift on the west wing voluntarily peered out an opened window to see what the commotion was about, then closed the window and went about their business. The record also shows that several other eligible voters were outside for a few minutes during the rally to perform duties and may have overheard some of the commotion. Further, there is no credited evidence that any eligible voters heard any specific part of the speeches or the singing made during the rally. In fact, it is admitted by Jablonski and the other witnesses, that the union agents and
8 supporters were at least fifty yards away from the facility at all times during the rally on the day before the election.
We have carefully reviewed this case and conclude that these findings are
supported by substantial evidence in the record as a whole. To deny enforcement here
would require us to hold, in effect, that a union rally held off premises, close enough
to the employees’ place of business so that some peripheral sounds could be heard in
the facility, was an election violation, even though the sound so heard did not rise to
the level of coherent election speech. That would be a stretch of the basic principles
derived from Peerless Plywood which, as yet, is unsupported by the cases.
Peerless Plywood was not intended to interfere with the rights of unions or
employers to circulate campaign literature on or off premises at any time prior to the
election, nor to prohibit the use of any other legitimate campaign propaganda or
media. The Board stated that “the rule does not prohibit employers or unions from
making campaign speeches on or off company premises during the 24-hour period if
employee attendance is voluntary and on employees’ own time.” Peerless Plywood
at 430.
We have reviewed the other objections of the Company to enforcement of the
bargaining order and find them to be without merit.
PETITION FOR ENFORCEMENT GRANTED, and CROSS-PETITION FOR REVIEW DENIED.