On Petition for Enforcement of an Order of The National Labor Relations Board.
Before: HUNTER and BECKER, Circuit Judges and HOFFMAN, Senior District Judge*fn*
This case presents a number of questions concerning the propriety of an election in which the employees of L & J Equipment Co., Inc. chose the United Mine Workers of America ("U.M.W.") as their collective bargaining representative. The National Labor Relations Board seeks enforcement of its order directing L & J to bargain with the U.M.W. as the representative of L & J's mining employees. L & J has refused to recognize the U.M.W. as the representative of the employees, alleging that the election was rendered invalid by improper inducements offered by the union of the employees, improper electioneering on the part of a pro-union employee who was a member of an in-house organizing committee (IHOC), and an atmosphere of fear and coercion surrounding the election. A hearing examiner ruled that a new election was necessary because the U.M.W. offered an improper inducement, a post-election "victory" dinner dance, to L & J employees but rejected the other two claims. The Acting Regional Director of the Board reversed the hearing examiner and held the election valid. The Board ultimately affirmed the decision of the Acting Regional Director and ordered L & J to bargain. L & J contends that the Board failed to consider the evidence under proper standards, and that substantial evidence does not support the Board's decision.
We agree with the Board's rejection of L & J's contention that the promise of a dinner dance rendered the election invalid. However, we find ourselves in disagreement with the Board's approach to the other two claims. First, we find that the Board applied an improper standard to the question whether a member of an in-house organizing committee (IHOC) should be considered an agent of the union, and that this error may have affected the Board's resolution of the improper electioneering and "atmosphere of fear and coercion" claims. Second, we find that because the the Board improperly applied its Ideal Electric rule, under which acts occurring prior to the filing of an election petition are deemed not to have affected the atmosphere surrounding the election, it inappropriately discounted a substantial act of violence -- the burning of a company-owned truck in the driveway of a pro-management employee. The errors may have affected the Board's resolution of the claims. Given these conclusions, the petition for enforcement of the Board's decision will be denied, and the case will be remanded to the Board for reconsideration of the issues under the proper legal standards.
I. FACTS AND PROCEDURAL HISTORY
L & J is engaged in the surface mining of coal. Its principal mining site is located in Hatfield, Pennsylvania, and it operates six satellite mines in other areas of Western Pennsylvania. In early August, 1981, the U.M.W. initiated efforts to organize L & J's mining employees, beginning with an informal meeting between organizers and a small group of employees on August 5. On August 10, 1981, a group of employees met with several representatives of the U.M.W., and an IHOC of approximately five employees was established.*fn1
The IHOC's duties included serving as a liaison between the L & J employees and the U.M.W. organizers by explaining employee concerns and answering employee questions, organizing and soliciting support for the union, and urging employees to attend union meetings and join the union. Not only was the union involved in the formation of the IHOC, but the members often received specific instructions from the union.*fn2 The IHOC also assisted the union in dispersing information to and organizing support at the satellite job sites.*fn3 Employee Keith Powley was chosen as chairman of the IHOC. Powley assumed many duties, such as receiving information from union organizers and dispersing it, in person or by telephone, to employees at other job sites.*fn4 Company employees would often approach Powley with questions about the U.M.W., because he was widely perceived as the IHOC member who knew the most about the union. None of the members of the IHOC were compensated by the U.M.W. for their organizing work on its behalf, although Powley did receive compensation from the union for his supervisory duties on election day.
A few days after the first meeting, a company-owned truck used by Camille Mikalik, who was generally considered to be a pro-management employee of L & J, was destroyed by a fire as it stood parked in Mikalik's driveway in Mt. Morris, Pennsylvania. Authorities determined that the fire had been deliberately set. The back of the truck was painted with the word "scab," presumably reflecting the arsonist's belief that Mikalik was opposed to the unionization of L & J's employees. Word of this incident spread quickly, and employees at all of the L & J job sites became aware of it.
Three weeks later (on September 1, 1981), the U.M.W. filed a petition for an election. The Acting Regional Director set the election for November 4, 1981. During the month preceding the election, union organizers and the IHOC conducted an extensive campaign. Union organizers Isidore Virgili and Joseph Panek told employees of the advantages of unionization and discussed certain benefits, including strike benefits, that employees would receive if they unionized. Virgili and other union organizers also informed employees that, in the event of victory in the election, the U.M.W. would sponsor a dinner-dance for all employees and their spouses.
Approximately three weeks before the election, Mikalik was approached at a local bar by a man identifying himself as a union organizer. He urged Mikalik to join the union, telling him to "take care of number one" and "watch" himself. Mikalik relayed this conversation to Powley, who said that if Mikalik signed a union card and Powley told others in the union of this fact, Mikalik would not be bothered again.*fn5 Mikalik then agreed to sign a union card, and other employees soon became aware of Mikalik's signing.
During the period preceding the election, there were a number of conversations in which several pro-union employees and union organizers discussed with other employees the possibility of a strike at L & J. During one conversation, several employees mentioned that violence might occur in the event of a strike. Powley suggested to Mikalik that employees crossing any picket line at L & J might be risking personal injury from employees supportive of the U.M.W., and that, while the picketers might let a few employees cross the picket line after that, "it would be shame on them" Powley also told Mikilak that the strikers, or perhaps the union, planned to bring in "a radical bunch" from another mine in the event of a strike. There is no evidence that employees not involved in this particular conversation were told of this "radical bunch." In another conversation, which included Powley and several other employes, a pro-union employee told Charles D. Martin, the pilot of the company's helicopter, that the helicopter would not be permitted to cross the picket line. Mr. Martin responded that interfering with an aircraft is a "federal offense." In a subsequent conversation, Powley and other employees told Martin that they had spoken with an unidentified person and agreed that the helicopter would be let alone.
Additionally, in the period before the election, employee Donny Arbogast told other employees that he had received a threat that he would have his legs broken should he cross a picket line. While only scant evidence exists suggesting that Arbogast was so threatened, and the hearing examiner explicitly disbelieved his testimony, many of the employees evidently heard this rumor.*fn6
Approximately one week to ten days before the election, a company-owned barn located several miles from L & J was totally destroyed by fire. The cause of the fire was never determined. As was the case with the burning of the company-owned truck though, L & J employees quickly became aware of the incident. Later during that week, Panek and Virgili had a brief conversation with several L & J employees during which Virgili stated, apparently in a joking fashion, that "if it [the election] doesn't go our way, I am going to shoot each one of you guys as you come down off that hill." The Sunday prior to the election, Russell Yoney, a relative of Powley but not an employee of L & J, called Mikalik and described some advantages of the U.M.W., admonishing Mikalik to "watch" himself.
The election occurred on November 4, 1981. While the voting was taking place at the Hatfield site, Michael Ziegler, a member of the IHOC, spoke for approximately 10 to 15 minutes with some employees as they stood in line to vote, and for another half an hour with several employees who were not in line. The content of the conversations could not be determined at the hearing. The Board Agent present at the balloting had not established a no-electioneering area and did not ask Ziegler to leave the voting area.
The U.M.W. won the election, 39 to 33. One ballot was voided because the voter, in addition to voting "No," wrote "KKK" on the ballot, and the hearing examiner concluded that this was an illegal identifying mark. On November 12, 1981, L & J filed objections to the election, alleging several violations, including improper electioneering, misrepresentations of fact, improper inducements, and "act of threats and coercion" by the U.M.W.*fn7 On January 27, 1982 the hearing examiner conducted a hearing, after which he found that (1) the Board agent had properly voided the ballot marked KKK; (2) the U.M.W. had not threatened employees, and no atmosphere of fear and coercion surrounded the election; and (3) the union had not engaged in improper electioneering, because the members of the IHOC were not agents of the U.M.W. However, he concluded that the promise of a victory party constituted an impermissible inducement affecting the outcome of the election. He therefore recommended to the Board that the election be voided and a new election held.
Both the U.M.W. and L & J filed objections to the report. The Acting Regional Director issued a supplemental decision on April 16, 1982, in which he adopted the recommendations of the hearing officer with respect to all issues except the allegedly improper inducement. After finding that the promise of the dinner dance did not affect the outcome of the election, he certified that the U.M.W. had been duly elected the official representative of L & J's mining employees. On August 4, 1982, the Board declined to review the Acting Regional Director's decision.
L & J continued to refuse to bargain with the U.M.W., which thereafter filed a complaint seeking further relief. The Regional Director filed a formal complaint, charging that L & J's refusal to bargain was an unfair labor practice under sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (The "N.L.R.A."), 29 U.S.C. §§ 158(a)(1), 158(a)(5). L & J's answer admitted its refusal to bargain, but denied that the U.M.W. was the properly certified bargaining representative of its employees. A hearing before an Administrative Law Judge was noticed, but the Board transferred the proceedings to itself. On February 9, 1981, the Board granted the motion of its General Counsel for summary judgment, finding that L & J had violated sections 8(a)(1) and 8(a)(5). The Board ordered L & J to (a) cease and desist from refusing to bargain with the union, (b) provide certain information to the union, (c) post a notice to employees that it will bargain with the union, and d) report to the Board's Regional Director the steps it has taken in compliance with the order. L & J Equipment Company, Inc., 266 NLRB No. 29 (1983). The Board then petitioned this court for enforcement of its order pursuant to section 10(e) of the NLRA, 29 U.S.C. § 160(e).
The standard in this circuit for reviewing a conclusion of the Board concerning the impact of an incident on an election was stated in Jamesway Corp. v. NLRB, 676 F.2d 63, 69 (3d Cir. 1982):
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.
Accord Medical Center of Beaver County, Inc. v. NLRB, 716 F.2d 995, 997 (3d Cir. 1983). See also Hickman Harbor Service v. NLRB, 739 F.2d 214 (6th Cir. 1984). This court cannot substitute its judgment for that of the Board merely because it might have reached a different conclusion had it considered the issues initially. ...