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06/02/87 Timsco Inc., v. National Labor

June 2, 1987




Mikva, Starr and Williams, Circuit Judges.


Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.



Petitioner Timsco Inc. (the Company) challenges a decision and order of the National Labor Relations Board (the Board) which found unlawful the Company's refusal to bargain with a certified union. The Union was certified after it won the second of two secret ballot representation elections. The Board set aside the first election, which the Union lost, because it found that the Company had conducted seven coercive interrogations of employees during the election campaign. The Company urges that this action by the Board was unreasonable and that therefore the Union was not properly certified. We reject the Company's arguments and conclude that the Board acted reasonably in finding that the seven exchanges upset the "laboratory conditions" that are supposed to prevail when employees vote on the question of union representation. I. FACTUAL AND PROCEDURAL BACKGROUND

Timsco is a company engaged in the manufacture, non-retail sale, and distribution of screen printing products in Washington, D.C. On October 25, 1984 the Graphic Communications International Union Local 285, AFL-CIO (the Union) filed a petition with the Board seeking a representation election among the Company's production and maintenance employees. The Board conducted a secret ballot election on December 7, 1984 which resulted in a tie vote of 11-11 with no challenged ballots. Because it failed to obtain a majority of the votes, the Union lost its bid for representation. On December 14, 1984 the Union filed eighteen specific objections to the Company's preelection conduct. On January 18, 1985 the Board's Regional Director for Region 5 issued a report approving the Union's withdrawal of some of its objections and directing a hearing on several others.

A Board Hearing Officer held a hearing on January 28 and February 12, 1985 and issued his Report on Objections on March 19, 1985. The Report recommended that several of the Union's objections be sustained and that the December 7 election be set aside and a new election held. The Company filed timely objections to the Report and the Union filed an answering brief. On July 26, 1985 the Board issued a decision which purported to adopt generally the Hearing Officer's findings and recommendations, but relied solely on one objection -- Objection 6, which charged that the Company had coercively interrogated its employees during the election campaign. The Board found it unnecessary to pass on the other objections that the Hearing Officer recommended it sustain.

Pursuant to the Board's order, the Regional Director held a second secret ballot election on August 23, 1985. This time the Union won by a vote of 11-6 with no challenged ballots. On September 4 the Union was certified as the exclusive bargaining representative of the Company's employees. By letter dated September 6, 1985 the Union requested that the Company bargain collectively. Since September 10 the Company has refused on the ground that the Union was not properly certified because the first election was incorrectly set aside. Moreover, since September 16, 1985 the Company has refused the Union's written requests to bargain over the specific issue of the discharge of probationary employee Louise Robinson. In addition to insisting that the Union was not properly certified, the Company maintains that because its decision to discharge Robinson was made on August 27, after the Union won the second election but before the Union was certified, it has no duty to bargain over the discharge. The Union argues both that notice to Robinson of her discharge took place after certification and that in any event the Company's duty to bargain runs from election rather than certification.

On September 12, 1985 the Union filed an unfair labor practice charge against the Company, which it amended on September 26. On October 24, 1985 the General Counsel issued a complaint against the Company charging that its refusal to bargain with the Union generally and over Robinson's discharge violated § 8(a)(5) and (1) of the National Labor Relations Act. These provisions make it unlawful for an employer "to refuse to bargain collectively with the representative of his employees" or to "interfere with, restrain, or coerce employees in the exercise of [their] rights [under the Act]." 29 U.S.C. § 158(a)(5) and (1). The Company answered the complaint, admitting its refusal to bargain but denying that the refusal was unlawful. On January 10, 1986 the General Counsel filed a motion for summary judgment alleging that all issues raised by the Company were or could have been raised, litigated, and decided in the underlying representation proceeding and that no newly discovered, previously unavailable evidence or special circumstances warranted relitigation. The Company responded that summary judgment was inappropriate because the certification had been improper and because there was a dispute about material facts regarding the Company's duty to bargain over Robinson's discharge. On May 27, 1986 the Board granted the General Counsel's motion for summary judgment and ordered the Company to cease and desist from unlawful conduct and to bargain with the Union generally and over Robinson's discharge. The Company now petitions this court to deny enforcement of the Board's decision and order. II. THE APPROPRIATE STANDARD OF JUDICIAL REVIEW

The Supreme Court repeatedly has noted the "wide degree of discretion" afforded the Board by Congress in matters concerning the conduct of representation elections. See NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 91 L. Ed. 322, 67 S. Ct. 324 (1946) (citing Southern S.S. Co. v. NLRB, 316 U.S. 31, 37, 86 L. Ed. 1246, 62 S. Ct. 886 (1942); NLRB v. Waterman S.S. Co., 309 U.S. 206, 226, 84 L. Ed. 704, 60 S. Ct. 493 (1940); NLRB v. Falk Corp., 308 U.S. 453, 458, 84 L. Ed. 396, 60 S. Ct. 307 (1940)). In its discussion of the impact of the Taft-Hartley Act of 1947 on the scope of judicial review of Board decisions, the Supreme Court reaffirmed its vision of the NLRB as an agency "equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951). This court more recently has addressed the specific degree of deference due the Board's decision to hold a rerun certification election. See Amalgamated Clothing & Textile Workers Union v. NLRB, 237 U.S. App. D.C. 194, 736 F.2d 1559 (D.C. Cir. 1984). The court noted that the Board and the Hearing Officer are much closer to the facts that underlie any charge of coercion and recognized that the Board's expertise in evaluating workplace atmosphere make it more qualified than a court to maximize employee free choice. Id. at 1562-63. The court concluded:

The scope of our review of the Board's decisions in cases involving certification is extremely limited. If the Board has followed appropriate and fair procedures, and if the Board has reached a rational conclusion concerning whether the atmosphere surrounding the election so attenuated free choice that a rerun election was necessary, we will not presume ourselves -- occupying a vantage point remote in time and place from the election at issue -- to be better able than the Board to assess the impact of alleged instances of misconduct on an election.

Id. at 1564 (citations omitted). It is this "extremely limited" scope of review that we apply to the Board's decision in this case to hold a rerun election. III. THE BOARD'S INITIAL ORDER FOR A SECOND ELECTION

The central issue in this case is the appropriateness of the Board's order in July 1985 setting aside the tie-vote secret ballot election held in December 1984 on the basis of coercive interrogation of employees by their employer. If the Board acted reasonably in ordering a new election, the Company has a duty to bargain with the duly certified union. In order to evaluate the reasonableness of the Board's action, we must consider the findings upon which it was based, which are not in dispute among the parties. The Hearing Officer found and the Board adopted his findings that the following chronologically ordered conversations occurred:

1) On November 10, 1984, during the election campaign, Keith Pritchard, Timsco's general manager and the son of its president, approached John Marhefka, a maintenance employee, and asked, "What's going on?" Marhefka responded, "What?" K. Pritchard then said to him, "You know, who's ever ...

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