ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before Adams, Garth and Sloviter, Circuit Judges.
In this case, certain employees who favored and backed a union, threatened their co-employees with physical violence if they did not vote for that union in the representation election. The Hearing Officer found this conduct created an atmosphere of fear and reprisal which warranted setting aside the election. The National Labor Relations Board summarily rejected the Hearing Officer's findings and concluded that the threats constituted no more than "mere campaign bravado." The Board refused to set aside the election and certified the union as the exclusive representative of the employees. Because we find the Board's decision unsupported by substantial evidence, we grant Zeigler's petition for review and we deny the Board's cross-petition for enforcement.
Zeiglers Refuse Collectors, Inc. ("Zeiglers") operates a refuse collecting business, including a Rear Load Division located in York, Pennsylvania. As of September 15, 1978, the date of the representation election, the Rear Load Division employed thirty eligible employee-voters.
The drive to unionize Zeigler's was initiated by employee Russell Knight. Sometime in the summer of 1978, he spoke with officials of Chauffeurs, Teamsters, and Helpers Local 430, Affiliated with the International Brotherhood of Teamsters; and subsequently began soliciting support for the union among his co-workers. On July 26, 1978, Local 430 filed a petition with the Board seeking a representation election among the rear load drivers of Zeiglers' York facility. The election was held September 15, 1978, and the union won by a vote of 16 to 14.
Zeiglers raised four objections to the election: employees with close ties to Local 430 had coerced fellow employees to vote for the union, and Local 430 had acquiesced in this activity; the atmosphere of coercion had prevented the holding of a free election; the union illegally had required certain employees to pay twenty dollars as a pre-condition to signing a union authorization card; and union officials illegally had interrogated and polled employees. The Regional Director recommended that a hearing be held only on the first two claims: union sponsorship of coercion and the claim that a coercive atmosphere prevented a free election. He found that the allegations concerning the illegal twenty dollar fee and the illegal interrogation were insufficient as a matter of law. The Board adopted the Regional Director's recommendations.
A hearing was held on February 21, 1979 before a Hearing Officer. Five employees of Zeiglers, two members of Zeiglers' management, and two officials of Local 430 testified. On April 9, 1979, the Hearing Officer issued his report recommending that, because of the coercive atmosphere which pervaded the September 15 election, a new election be held. This conclusion was based upon his finding that five incidents of coercive conduct took place. In approximate chronological order, these incidents are:
1. Employee Glenn Null testified that a few months prior to the election, Russ Knight, another employee, when handing out union authorization cards told a group of employees which included Glenn Null, Rick Chappell and Martin Morthland, that if they did not sign the cards, they would not work for the employer any longer.*fn1 Knight then requested a twenty dollar contribution from each of these workers. (App. at 289).
2. Russ Knight, Barry Leisenring and Larry Leisenring approached employee Martin Morthland about a week before the election, and informed him that employees who didn't give $20.00 and sign union authorization cards were going to "get their asses kicked." (App. at 108, 289).
3. About a week or two before the election, employee Charles "Pee Wee" Preston, a 6'7, 250 pound ex-Marine, approached Rick Chappell (5'8, 145 pounds) at the employee lunch wagon. Preston said to Chappell: "I heard you are voting no for the union" to which Chappell responded: "Whoever told you that is a liar." The Hearing Officer found that Chappell's response was motivated by his desire to avoid any trouble with Preston. Preston then warned: "Well you had better be voting for the Union if you know what is good for you." The Hearing Officer found that Chappell understood this statement to be a threat upon his physical well-being, and not a prediction of the benefits of unionization. (App. at 290).
4. A day before the election Preston walked over to employees Glenn Null (5'7, 140 pounds) and James Oleweiler and asked them if they were "going to vote no or yes for the Union." When neither responded, Preston threatened Null and Oleweiler that if they knew what was best for them, they would vote for the Union. (App. at 82, 290).
5. On election day, during the time the polls were open, Preston approached Null and Chappell at a spot forty feet from the polling place about five minutes before these two employees voted. According to Null, Preston stated: "What are you voting, yes or no. If you vote no for the Union; me, Russ Knight and Barry Leisenring gets fired; we are going to kick your ass." Chappell remembered Preston saying: "When you go in there to vote, you had better vote for the Union or else you know what is going to happen." (App. at 290). The Hearing Officer found that Null and Chappell provided an accurate account of the incident.
The Hearing Officer held that these five threats created an atmosphere of fear which rendered the holding of a fair election impossible. He found this coercive atmosphere to be pervasive, because accounts of these threats were also circulated among the rank and file, and because reports had spread that Preston had threatened other employees as well.*fn2 He thus recommended that a new election be held, despite finding that none of the threats could be attributed to Local 430.
On appeal, the Board refused to accept the Hearing Officer's recommendation. Instead, in its decision of September 27, 1979, it certified Local 430 as the representative of the employees in the Zeiglers unit. The Board's analysis, in its entirety, is as follows:
We do not accept the Hearing Officer's recommendation and find that, even assuming the correctness of the Hearing Officer's factual findings and credibility resolutions,*fn2a the Employer has not demonstrated a sufficient factual foundation for the setting aside of the election.
The Hearing Officer finds "only minimal evidence concerning Petitioner's knowledge or participation in threats against employees concerning how they were going to vote." Furthermore, the most severe threats he attributes to prounion employees are: If employees did not sign authorization cards, "they would not work for the Employer anymore"; "Whoever didn't give $20.00 and sign union authorization cards was going to "get their asses kicked' "; "You had better be voting for the Union if you know what is good for you"; "If you vote no for the Union; me, Russ Knight and Barry Leisenring gets fired; we are going to kick your ass."
We do not agree with the Hearing Officer that the above gives rise "to a pervasive sense of apprehension among prospective voters."*fn3 Inasmuch as the Hearing Officer has found "minimal" evidence connecting these campaign incidents with the Petitioner in any way, and such incidents did not relate directly to the election vote or create a general atmosphere of fear and confusion, we find that there is no basis for setting aside the election.*fn4 We shall, therefore, overrule the Employer's Objections 1 and 2, and shall order that the Petitioner be certified.
In order to obtain judicial review of the Board's decision, Zeiglers refused to bargain with Local 430.*fn3a Local 430 filed an unfair labor charge, alleging Zeiglers had violated Section 8(a)(5) of the Act by refusing to bargain with a certified representative. In an order dated April 16, 1980, the Board entered summary judgment for Local 430. Zeiglers petitions for review of that order and the Board cross petitions for enforcement. Our review of this order also brings before us the underlying order of January 22, 1979 which affirmed the dismissal of the charge of an illegal ...