ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD NLRB No. 4-CA-10856
Before Adams, Rosenn and Sloviter, Circuit Judges.
These cases present two petitions for review and cross-applications for enforcement of an order of the National Labor Relations Board (Board) finding Jamesway Corporation (Jamesway or Store) to have violated section 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1) & (5) (1976), by refusing to bargain with District 65, UAW (Union). In No. 80-2245, Jamesway filed a petition under 29 U.S.C. § 160(f) (1976) for review of the Board's order that Jamesway cease and desist in its violations and recognize and bargain with the Union upon request. Jamesway challenges the validity of the representation election and the legality of the Union's certification. Because Congress has not provided for direct review of Board representation proceedings, Jamesway was compelled to expose itself to the unfair labor practice charges in order to obtain judicial review of the representation proceedings, review which this court appropriately should now provide. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251 (1941); Anchor Inns, Inc. v. NLRB, 644 F.2d 292 (3d Cir. 1981); NLRB v. Sun Drug Co., 359 F.2d 408 (3d Cir. 1966). The Board has cross-applied for enforcement of its order under 29 U.S.C. § 160(e) (1976). In No. 81-1319, the Union has petitioned this court to set aside that part of the Board's order denying the special relief sought by the Union. The Board has also cross-applied for enforcement of its order in this action. Jamesway's petition for review will be granted; the Board's application for enforcement and the Union's petition to modify the Board's order will be denied.
Jamesway, a New York corporation, operates a department store in Hammonton, New Jersey. On April 2, 1979, the Union filed a representation petition seeking certification as the bargaining representative of the Store's employees.*fn1 The Regional Director (RD) determined that the appropriate bargaining unit included:
All full-time and regular part-time employees, including leased department employees, office clerical employees, department heads, stockroom employees, head cashier, C.I.E. employees and TWX operator at the Employer's store # 32 Hammonton, New Jersey facility, but excluding management trainees, casual and seasonal employees, security employees, leased department managers, head receiver, guards and supervisors within the meaning of the Act and First Federal Savings and Loan Association employees.
Jamesway contested the inclusion in the unit of three employees: the store's head cashier and two students employed under the auspices of New Jersey's Cooperative Industrial Education Program.*fn2 The Board refused to review Jamesway's pre-election objections to the RD's unit determination, concluding that no substantial issues warranting review had been raised.
The election was held on June 22. The initial tally of ballots revealed 28 votes for the Union, 29 against, and 6 challenged ballots. Jamesway filed timely objections to the election and to conduct of the Union which the Store maintained improperly affected the election's outcome. Jamesway raised several grounds to have the election set aside.*fn3 Consideration of one of these, namely Jamesway's claim that campaign literature circulated by the Union on the eve of the election was so deceptive as to impermissibly interfere with the election, is sufficient to determine the disposition of this case.
The RD conducted an administrative investigation of the challenges to the ballots and the objections to the election-related conduct. See generally 29 C.F.R. § 102.69 (1981). On October 26, 1979, he issued a Supplemental Decision on Challenged Ballots and Objections to Election in which he overruled four of the six challenges and all of Jamesway's objections. Jamesway filed a request for review of that decision, contending that the RD erred in overruling the Store's objections, a request that the Board denied. On January 4, 1980, the RD issued a Revised Tally of Ballots which showed 32 votes for the Union and 29 against the Union, with 2 ballots challenged by the Union remaining uncounted, the challenges unresolved, because the votes were not determinative of the outcome of the election. The RD certified the Union as the exclusive bargaining agent of the Store's employees on January 10.
Jamesway refused to bargain in order to contest the certification, and on May 12, 1980, the RD issued a complaint charging Jamesway with engaging in unfair labor practices within the meaning of section 8(a)(1) and (5) of the Act. The Board ultimately issued its Decision and Order on August 27, 1981. It refused to consider Jamesway's challenges to the certification and ordered Jamesway to bargain with the Union.
As an initial matter we must determine the appropriate standard of judicial review of the Board's opinion and order. Some confusion appears to have developed regarding selection of the appropriate standard for reviewing the Board's determinations regarding the effect of alleged misconduct on the fairness of an election. Generally, when the Board petitions for enforcement of a bargaining order or a party challenges a Board determination that he engaged in an unfair labor practice, a reviewing court is bound to accept the Board's factual findings "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e) & (f), see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951); E. L. Wiegand Division, Emerson Electric Co. v. NLRB, 650 F.2d 463, 468 (3d Cir. 1981); Hedstrom Co. v. NLRB, 629 F.2d 305, 313-14 (3d Cir. 1980) (en banc), cert. denied, 450 U.S. 996, 101 S. Ct. 1699, 68 L. Ed. 2d 196 (1981). The degree of review authorized under the substantial evidence test has been likened by the Supreme Court to the judgment that a trial judge exercises on whether or not there is sufficient evidence to submit the case to the jury:
(Substantial evidence) "must do more than create a suspicion of the existence of the fact to be established.... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusions sought to be drawn from it is one of fact for the jury."
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S. Ct. 456, 459, 95 L. Ed. 456 (1951) (quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S. Ct. 501, 505, 83 L. Ed. 660 (1939). Thus, " "substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Universal Camera Corp., supra, 340 U.S. at 477, 71 S. Ct. at 459 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 216, 83 L. Ed. 126 (1938). Although under the substantial evidence test a court is not free to substitute its view for that of the Board merely because it would have reached a different conclusion had it considered the question initially, Universal Camera Corp., supra, 340 U.S. at 488, 71 S. Ct. at 464, "a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Id.
The Board argues, however, that a more deferential standard of review governs when a court is called upon to review a decision of the Board regarding the conduct of an election. In such circumstance, the Board maintains, the proper standard addresses "whether the Board acted arbitrarily in the exercise of its discretion." NLRB v. Pinkerton's, Inc., 621 F.2d 1322, 1324 (6th Cir. 1980); see NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S. Ct. 324, 327, 91 L. Ed. 322 (1946). Accordingly, in the instant case the Board urges that the proper standard for reviewing its actions in conducting and certifying the election is whether the Board's actions were within its wide range of discretion.*fn4
The Board in its attempt to limit the power of review exercised by this court over the Board's determinations regarding the conduct of elections confuses the standard of review a court should use to examine the propriety of election procedures and policies established by the Board with the standard appropriate for review of the Board's application of those procedures and policies to specific elections. That confusion is understandable, since our decisions have not carefully articulated the distinction. Nonetheless, the substantial evidence standard remains the proper one under which Board determinations regarding the impact of alleged misconduct on the fairness of an election must be judged.
The source of the abuse of discretion standard which the Board would have us apply is NLRB v. A. J. Tower Co., 329 U.S. 324, 67 S. Ct. 324, 91 L. Ed. 322 (1946). A. J. Tower Co. involved a challenge to a decision of the NLRB to apply strictly its rule that any challenges to a voter's eligibility have to be made before the election is held. In noting the "wide discretion" enjoyed by the Board "in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees," 329 U.S. at 330, 67 S. Ct. at 327, the Court was simply acknowledging the deference to be accorded the Board in promulgating rules and regulations which implement its statutorily created supervisory role. The Court was not called upon to review whether a particular challenge had been timely filed, a question of fact accepted by all the parties, but rather the validity of the Board's uniform policy of prohibiting post-election challenges as a way of preventing election fraud. And there is no indication that the Court intended to displace the substantial evidence standard of review which under 29 U.S.C. § 160(e) & (f) is to be applied by courts of appeals to the Board's findings of fact. Thus, A. J. Tower Co., accords the NLRB wide discretion in formulating election procedures; it does not thereby limit court of appeals review of Board determinations concerning election conduct to the more restrictive abuse of discretion standard.
Although A. J. Tower Co. dealt only with the proper standard of review of Board procedures and policies, judicial decisions reviewing the Board's determinations as to whether those procedures and policies had been respected in a particular case have made reference to the A. J. Tower Co. standard even as they have applied the substantial evidence standard. For example, in NLRB v. El-Ge Potato Chip Co., 427 F.2d 903 (3d Cir. 1970), cert. denied, 401 U.S. 909, 91 S. Ct. 869, 27 L. Ed. 2d 807 (1971), we noted, relying on NLRB v. A. J. Tower Co., supra, that "(i)t was long ago settled that the Board is entrusted with a "wide degree of discretion' in establishing and enforcing the procedure and safeguards necessary to insure the fair and free choice by employees of their bargaining representatives." 427 F.2d at 906 (footnote omitted). We concluded nonetheless that the question at issue was whether "the Board's finding that the election was fairly conducted is supported by substantial evidence in the record considered as a whole." Id. (footnote omitted) (emphasis added.)*fn5 Accord, NLRB v. Pinkerton's, Inc., 621 F.2d 1322, 1324 (6th Cir. 1980); NLRB v. Golden Age Beverage Co., 415 F.2d 26, 29 (5th Cir. 1969).*fn6
We have also applied the substantial evidence standard of review to Board determinations regarding the impact of alleged misconduct on an election without reference to A. J. Tower Co. Thus in Zeiglers Refuse Collectors, Inc. v. NLRB, 639 F.2d 1000, 1005 (3d Cir. 1981), we indicated that "(t)he Board must examine the record, determine the weight to be accorded each factor, and applying its experience, arrive at a final, articulated decision supported by substantial evidence." We also appear to have applied the substantial evidence test sub silentio. In NLRB v. Campbell Products Department, 623 F.2d 876, 879 (3d Cir. 1980), we indicated that "(t)he Board has wide discretion in evaluating the circumstances surrounding an election and determining whether these circumstances allowed a free and fair choice by the voters." The "wide discretion," however, referred to the appropriateness of the Board's policy of distinguishing "between electioneering by an agent or representative of a party to an election, on which the Board takes a strict view, and electioneering by a mere rank and file employee, of which it is more tolerant." Id. (citations omitted). Having approved, under an abuse of discretion standard, the Board's rule that electioneering by parties should be less tolerated than electioneering by nonparties in order to safeguard the election process, we went on to conclude that the Board's "distinction amply supports the Board's conclusion that the electioneering in the instant case, which was undertaken by a mere employee, did not warrant setting aside the election." Id.
In only one case have we actually applied what we termed an "abuse of discretion" standard to our review of election challenges, see Monmouth Medical Center v. NLRB, 604 F.2d 820, 821 (3d Cir. 1979).*fn7 Yet even in that case, we noted that "the Board has "wide discretion' in establishing the procedures and safeguards for conducting representation elections," id. at 825 (emphasis added), and went on to observe that "(i)n reviewing a Board decision, we may not "abdicate' our responsibility to assure "that the Board keeps within reasonable grounds.' " Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S. Ct. 456, 465, 95 L. Ed. 456 (1951)). Assuring the reasonableness of the Board's determinations is precisely what is required under the substantial evidence test, which we now reaffirm is to be applied to Board determinations regarding the effect of alleged misconduct on an election. In determining whether a particular incident so disrupted an election as to warrant setting the election aside, a court must satisfy itself that the Board's determination regarding the impact of the incident at issue is supported by substantial evidence on the record considered as a whole.
One of Jamesway's principal objections is directed to the circulation of a campaign handbill. On the eve of the election, several members of the Union's organizing committee presented Jamesway with a document which read:
We, the District 65 organizing committee would like a guarantee in writing that the Company will not lay-off or reduce any of the work force of Jamesway Store ...