416 F. 2d 392 - Home Town Foods Inc v. National Labor Relations Board

This representation election "test case"1 is before us for the second time. See Home Town Foods, Inc. v. NLRB, 5 Cir. 1967, 379 F.2d 241, denying enforcement and remanding for an evidentiary hearing 160 NLRB 8 (1966). Home Town Foods petitions this Court to review and to set aside the Supplemental Decision and Order of the NLRB, 172 NLRB No. 126 (1968); the Board cross-petitions for enforcement. NLRA § 10(e), (f), 29 U.S.C. § 160(e), (f).2

Our scope of review is limited to ascertaining whether there is substantial evidence on the record considered as a whole to support the Board's decision and order. 29 U.S.C. § 160(e) and (f). Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; NLRB v. Houston Chronicle Publishing Co., 5 Cir. 1962, 300 F.2d 273.3 While we also recognize that the Board has broad discretion in adopting procedures to govern the election process, we find no conflict between the breadth of discretion afforded the Board in its promulgation of procedures and the substantial evidence rules used by the courts to review applications of those procedures.

"There is no conflict or contradiction between the substantial evidence rule determinative of the scope of review and the principle whereunder the Board is entrusted with wide discretion in establishing the procedures and safeguards necessary to insure the fair and free choice of bargaining representatives as enunciated in National Labor Relations Board v. A. J. Tower Co., 1946, 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322. These rules do not conflict because they affect differing spheres of activity. The Board's wide discretion lies in the initial promulgation of rules and regulations, while the court exercises its duties in reviewing decisions involving application of the Board's rules. Judicial review in these cases is not concerned with the wisdom of the Board's policy but must determine whether the record as a whole supports the findings and conclusions respecting compliance with the policies, rules and regulations promulgated by the Board.

"Unless or until Congress changes the language of the statute or the Supreme Court changes its interpretation of the application of the statute, this court is bound by the rule of the Universal Camera case."

Celanese Corporation of America v. NLRB, 7 Cir.1961, 291 F.2d 224 at 225. Accord, NLRB v. Bata Shoe Company, 4 Cir. 1967, 377 F.2d 821, 827. Compare Independent, Inc. v. NLRB, 5 Cir.1969, 406 F.2d 203. Finally, we note that this Court must review, on an ad hoc basis, the fairness of the Board's application of its chosen standard. Applying this standard of review to the supplemental decision and order now before us, we conclude that the Board has misapplied its orthodox "laboratory conditions" standard for evaluating the fairness of election campaign conduct and has thereby denied the production and maintenance unit employees of the Company's Sylacauga plant the requisite "free and untrammeled choice for or against a bargaining representative." General Shoe Corp., 1948, 77 NLRB 124, 127. Cf. LMRA §§ 7, 9(a) and 9(c) (1), 29 U.S.C. §§ 157, 159(a), and 159(c) (1). We deny enforcement.4

A former counsel to NLRB member Jenkins has written that:

"It is in the American tradition to conduct elections with more vigor than restraint and elections to determine the bargaining representative of employees are no exception. The period between the filing of a petition and the election may be a brief one but it is crucial to the parties and fascinating to the spectator. Emotions run high and temperance in speech and conduct is not the rule. It is not unusual therefore for the Board, despite all the safeguards it has established, to receive loud cries of `foul' from the loser."

Funke, Board Regulation of Pre-Election Conduct, 36 Tex.L.Rev. 893, 895 (1958). Congress has vested in the Board the authority to investigate and resolve objections to election conduct. LMRA § 9, 29 U.S.C. § 159. The Board has adopted appropriate evaluation procedures. 29 C.F.R. § 102.69. See generally 2 CCH Lab.Law Rep. ¶¶ 2701, 2790, 2791, 2792. The Board has recently acknowledged that it must "closely guard the integrity of its elections so that employees may exercise the freedom of choice contemplated by the Act and thereby have a full opportunity to enjoy its other benefits." Oak Mfg. Co., 1963, 141 NLRB 1323, 1324.

In General Shoe Corp., supra at 127, the Board established its landmark standard for evaluating election campaign conduct:

"Conduct that creates an atmosphere which renders improbable a free choice will sometimes warrant invalidating an election, even though that conduct may not constitute an unfair labor practice. An election can serve its true purpose only if the surrounding conditions enable employees to register a free and untrammeled choice for or against a bargaining representative.

* * * * * *

"In election proceedings, it is the Board's function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish these conditions; it is also our duty to determine whether they have been fulfilled. When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again."

The "laboratory conditions" test represents an ideal atmosphere in which a free choice may be made by employees, protected from interference by employer,5 union,6 Board agent,7 or other parties.8 As to any conduct objected to as interference, the critical Board determination is whether the employees were permitted to register a free choice. Cf. NLRB v. Southland Paint Co., 5 Cir. 1968, 394 F.2d 717, 727, and the case from which it quotes, NLRB v. Lake Butler Apparel Co., 5 Cir. 1968, 392 F. 2d 76, 82 ("The struggle is between the employer and the union, but the right to select is the employees.")9

In our original consideration of this case, we noted that the alleged pre-election and election day misconduct,10 if proven, left no doubt that the election should have been set aside on the basis of deterioration of the requisite "laboratory conditions." 379 F.2d at 244. See Electra Mfg. Co. v. NLRB, 5 Cir. 1969, 408 F.2d 570; Neuhoff Bros. Packers, Inc. v. NLRB, 5 Cir. 1966, 362 F.2d 611, cert. denied 386 U.S. 956, 87 S.Ct. 1027, 18 L.Ed.2d 106; NLRB v. Houston Chronicle Pub. Co., 5 Cir. 1962, 300 F.2d 273.

Moreover, we remanded with instructions that (1) the conduct to which the Company objected must be considered cumulatively rather than as isolated individual incidents; (2) while an objective evaluation is normally the basis for determination whether interference occurred sufficient to require setting aside an election, "subjective evidence of fear and coercion, however, may carry the day as well," 379 F.2d at 244 (emphasis added); and finally (3) all coercive acts need not be shown to be attributable to the union, rather than rank-and-file supporters.

Nine witnesses testified on behalf of the Company, and in varying degrees substantiated the validity of every objection but one11 made by the Company. Three witnesses testified on behalf of general counsel: one, a challenged voter who stood in front of the voting booth during the election, merely stated that he could not see into the booth so as to determine how any voter cast his ballot;12 the other two were concerned only with absolving the union organizer from any election day misconduct in the area of the polling place. The Company's prima facie case of pre-election threats, sabotage, rumors, and of election day irregularities was largely uncontroverted by General Counsel.

The Trial Examiner, however, concluded that:

"It cannot be said that in this case the conduct * * * during the election campaign period was of such an aggravated character as to create a general atmosphere of fear and reprisal rendering a free expression of choice of representatives impossible."

To reach this conclusion on the evidence presented necessitated (1) that the Trial Examiner eliminate from consideration part of the threats and all of the rumors, as well as the supervisor participation, by ruling that the Company failed to show such events occurred during the critical campaign period; (2) that he discount the various election day events, considering each in isolation, as resulting in "baseless fear"; and (3) that he discredit the testimony of one employee found by the Board to have been threatened on three separate occasions, and thereby find that there was no evidence to establish that fear actually affected any vote.

The Board adopted, with substantial modifications,13 the findings, conclusions and recommendations of the Trial Examiner. Notwithstanding its findings, the Board concluded that there was no basis for setting aside the election. The rationale underlying the determination was straight-forward:

"We are unable to conclude that these circumstances justify the conclusion that the requisite laboratory conditions for the conduct of a free election were not present. Applying the test set forth by the Court, as summarized above, there is no evidence that any of the above factors resulted in subjective reactions which interfered with the vote of any employee other than Stegall, and his ballot could not affect the result.

"The Court expressed the view that if the entire atmosphere in which the election was held was tainted, it would be immaterial that the conduct creating that atmosphere was not directly attributable to the Union. However, it seems apparent to us that the Court's opinion must be interpreted as dispensing with a showing of responsibility by one of the parties only where the conduct involved is of so serious a nature that it could only result in widespread confusion and fear of reprisal which would render impossible a rational, uncoerced choice by employees. Here, the incidents which exceeded permissible bounds were merely the three involving Stegall and the coldroom employees, of which all were very limited in nature and only one was known to two other employees. We do not think that this amount of misconduct was what the Court considered sufficient for the application of the criterion it stated. Accordingly, we adhere, for the reasons stated, to our prior holding.

"In view of the above, we find that there is no basis for setting aside the election in this case." (Emphasis added.)

Concerning the cumulative facts proved in the instant case and in the light of the "laboratory conditions" standard and the express directions contained in our original decision on remand, the Board order is unsupportable on the record considered as a whole. Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The Board, not the Courts, adopted as the measure of election fairness the "laboratory conditions" standard and the objective (or inferential) conduct impact appraisal method.14 This Court merely noted on remand that subjective evidence may carry the day as well. 379 F.2d at 244. The two evaluation methods are not mutually exclusive. This Court has previously held that, where the Board has "promulgated" a standard governing conduct under the LMRA,15 "(s)uch policies are controlling until the Board announces a change and its reasons for the change." Delta Drilling Co. v. NLRB, 5 Cir. 1969, 406 F.2d 109, 113; Rayonier, Inc. v. NLRB, 5 Cir. 1967, 380 F.2d 187, 189.16

Because in the instant case the Board acquiesced in pre-election misconduct by the union supporters and in election day misconduct by the union agent, union supporters and the Board agent, which, viewed cumulatively, obviously resulted in "the standards of election campaigning [and conduct] drop[ping] too low, the requisite laboratory conditions [were] not present, and the experiment must be conducted over again." General Shoe Corp., 1948, 77 N.L.R.B. 124, 127. See Electra Mfg. Co. v. NLRB, 5 Cir. 1969, 408 F.2d 570; NLRB v. Houston Chronicle Pub. Co., 5 Cir. 1962, 300 F.2d 273.

Enforcement denied.

I concur in the result announced in the majority opinion.

The Board complains that the Court imposes on the Board an "unrealistically `ideal' standard." We do not so intend. We are in full agreement with the Board's explanations of its "laboratory" standard in Morganton Full Fashioned Hosiery, 1954, 107 N.L.R.B. 1534, 1538,1 and in Liberal Market, Inc., 1954, 108 N.L.R.B. 1481, 1482.2

As indicated later by the Board in International Mfg. Co., 1967, 167 N.L.R.B. No. 105, from which we quoted in footnote 14 to our original opinion, the task is "* * * to evaluate properly the probable effect of conduct which is coercive in nature. * * * The controlling factor here is whether the conduct involved tends to interfere with a free and uncoerced choice by the employees." The test was more elaborately stated by this Court in a case decided shortly after our original decision in the instant case:

"* * * the ultimate question here is not whether any improprieties occurred during the campaign, but whether in the circumstances, the particular conduct complained of `created an environment of tension or coercion such as to preclude employees from exercising a free choice. For conduct to warrant setting aside an election, not only must that conduct be coercive, but it must be so related to the election as to have had a probable effect upon the employees' actions at the polls.' NLRB v. Zelrich Company, 344 F.2d 1011, 1015 (5th Cir. 1965)."

NLRB v. Golden Age Beverage Co., 5 Cir. 1969, 415 F.2d 26.

Further as recognized in our original opinion:

"Our scope of review is limited to ascertaining whether there is substantial evidence on the record considered as a whole to support the Board's decision and order. 29 U.S.C. § 160(e) and (f). Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, NLRB v. Houston Chronicle Publishing Co., 5 Cir. 1962, 300 F.2d 273."

416 F.2d 394. And still further, "this Court must review, on an ad hoc basis, the fairness of the Board's application of its chosen standard." 416 F.2d 395. There is thus no escape from a careful examination of the record in each case to enable this Court to meet its responsibility "for the reasonableness and fairness of Labor Board decisions." Universal Camera Corp. v. NLRB, 1952, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456. On petition for rehearing we have again reviewed the record and, for the reasons stated in the original opinion, we adhere to our conclusion that the Board's order is not supported by the record considered as a whole.

The petition for rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the Petition for Rehearing En Banc is denied.