ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board Case No. 6-CA-13393)
Before Adams and Garth, Circuit Judges, and Dumbauld, District Judge.*fn*
Once again we are asked to review the denial of a hearing by the Regional Director of the National Labor Relations Board when grave assertions are made by the company that the "laboratory conditions" of a representation election were violated by actions of a union agent.
We have recently addressed different aspects of this subject in Anchor Inns Inc. v. NLRB, 644 F.2d 292 (3d Cir. 1981); Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000 (3d Cir. 1981); and NLRB v. Campbell Products Dept., 623 F.2d 876 (3d Cir. 1980). In Zeiglers we reviewed the election process after an evidentiary hearing had been held to investigate irregularities. In Anchor Inns, we reviewed the election process where an evidentiary hearing had been sought by the company and denied. In Campbell, no evidentiary hearing was required because the Board assumed the truth of Campbell's contentions.
Here, Season-All seeks an evidentiary hearing to examine the conduct and status of one of its employees (Sadler) who it asserts was a union agent and whose electioneering activities, Season-All claims, influenced co-workers outside the polling place while they were waiting their turn to vote.
The Regional Director conducted only an ex parte investigation despite the company's assertion that Sadler was a union agent and had identified himself with the union by saying that he was there "for the union, to keep management away from the polling area."
The Board sustained the Regional Director's refusal to investigate Sadler's status and issued an order directing Season-All to bargain with the union. Consistent with our recent pronouncements, we grant Season-All's petition, deny the Board's cross-application for enforcement and remand the case to the Board for an evidentiary hearing.
Season-All Industries, Inc. produces thermal windows and doors. At issue in this case, is the representation of Season-All's employees by the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM).
A petition seeking a representation election was filed with the Board on April 2, 1979 by District Lodge No. 63 of the IAM. The election was held on June 29, 1979 and the relevant results were tabulated as follows:
Approximate number of eligible voters 79
Votes cast for [other unions] 9
Votes cast against participating
Challenges are sufficient in number to affect the results of the election.
After the election, on July 5, 1979, Season-All filed objections to the conduct of the election. Season-All objected that "an agent of the International Association of Machinists and Aerospace Workers engaged in electioneering outside the polling place." Season-All also alleged that Sadler urged waiting voters to vote for the union; that Sadler harassed female employees whom he felt were not favorably disposed to vote for the union; and that Sadler, by declaring that a company officer was improperly present at the polling area, implied to the voters that the company was engaged in wrongful conduct. The company charged that Sadler conducted his electioneering for a substantial part of the one hour period allotted for voting and within a few feet of the room where voting was taking place. In support of its objections, the company submitted affidavits of Thomas Mittlehauser, the assistant to the company's Industrial Relations Director. The charges in the affidavits supported the objections filed by the company and, among other things, claimed that Sadler had stood outside the polling place for some time and had told Mittlehauser in a loud voice that he, Mittlehauser, was not permitted near the voting place because of his position with the company.
After an ex parte investigation the Regional Director issued a Supplemental Decision on Objections and Challenges. He found that "Sadler was a rank-and-file employee and an eligible voter.... (and) held no position of any kind for the (union)...." (133a) The Regional Director "conclud(ed) that Sadler's conduct ... can in no way be attributable to the Petitioner," although he conceded that "in Milchem, Inc., 170 NLRB 362 (other courts and the Board most often cite this case as Milchem, Inc. although it was originally reported as Michem, Inc. Because many of the cases to which we refer cite the case as Milchem, we will use that nomenclature throughout this opinion.), the Board held that in situations where a party to the proceeding in cases of electioneering which is more than de minimis at the polling place while voting is in progress, the Board will find such electioneering to be per se a basis for setting aside an election." (134a) He distinguished Milchem, however, by stating that in Milchem, the "conduct complained of was engaged in by an agent of the union...." Id.
The Regional Director described the testimony concerning Sadler as follows:
All of the alleged objectionable conduct attributed to the alleged agent of the Petitioner relates to conduct of a rank-and-file employee, Ray Sadler. Sadler was an eligible voter.
The election was held in an enclosed conference room at the Employer's facility, entered through a doorway. The voting period was from 11 a.m. to 12 noon. The corridor where employees were waiting in line to vote was located outside the doorway of an office area located between the corridor and the conference room. According to Thomas Mittlehauser, the Employer's assistant to the industrial relations director, he found it necessary to walk by the employees waiting in line to vote on his way to the nurse's office shortly after the polls opened; that on his way to the nurse's office, he noticed Sadler standing in the corridor, but not in the line of waiting voters; that on his return from the nurse's office, approximately 5 to 8 minutes later, he saw Sadler standing in the same position as previously; and that on this occasion, Sadler said to him, "What are you doing here, you have no right to be here, you are management," to which Mittlehauser responded "that he had been busy treating an employee and was on his way back to his office," and that Sadler then merely shrugged his shoulders. According to Mittlehauser, he also saw Sadler converse with some of the other employees in the line, but he did not know what Sadler said to such employees. According to one employee, she saw Sadler standing in the corridor greeting employees, such as saying "hello" or "how are you"; that one of the voters asked Sadler where his button was and that Sadler replied "it's against the law to wear them but we all know who to vote for." According to another employee, Sadler, while standing in the corridor, said to her, "thanks for coming to vote" to which she replied "so you think"; that Sadler shook the hand of an employee who had already voted and said "congratulations"; and that when someone asked Sadler why he was standing where he was, Sadler replied that he was there "for the Union, to keep managemen (sic) away from the polling area" and that he "did not want management to intimidate us." According to the same employee, Sadler talked to various employees in the line to say hello and "small talk" and that while he said things about the Union, she could not recall the specifics. A third witness waiting in line to vote, whose supervisory status is in dispute, states that Sadler got in line behind her; that as a voter passed the waiting line after voting that person said "we may get a vacation out of this" to which the witness replied to no one in particular, "perhaps an extended one"; that Sadler then said "I'm glad she brought that up because we will use it against her later; we will use that against them later"; that Sadler then said there will be no more favoritism that some people get raises and some don't; and that Sadler continued conversing with voters while in the line but that she paid no attention and did not know what was said. All of the above three witnesses are females. Except as set forth above, the investigation did not disclose any other remarks attributed to Sadler pertaining to the election. The estimates of the witnesses as to the length of time that Sadler was in the polling area ranges from 10 to 20 minutes. The estimates of the witnesses as to where Sadler stood while making his remarks ranges from 10 feet from the entrance to the polling place to 40 feet from the entrance to the polling place.
According to Sadler, he stepped out of the voting line when he saw Mittlehauser come back past the voting line and told Mittlehauser that he was violating the rules, that he was not supposed to be there and asked Mittlehauser to leave; that he then waited for the end of the line to reach him, there being approximately 25 people in line, and that when the end of the line reached him, he got back into the line, voted, and left the polling area. According to Sadler, while he thanked people for voting as they left the polling area, he did not thank anyone for voting any particular way, did not say "congratulations" to anyone, and did not say "that we would use anything" against anyone. While agreeing that he stated that management was not supposed to be in the area and ...