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11/10/97 KAOLIN MUSHROOM FARMS v. PENNSYLVANIA

November 10, 1997

KAOLIN MUSHROOM FARMS, INC., PETITIONER
v.
PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT



Appealed From No. PLRA-R-93-9-E. State Agency Pennsylvania Labor Relations Board.

Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: November 10, 1997

Kaolin Mushroom Farms, Inc. (Kaolin) appeals from an order of the Pennsylvania Labor Relations Board (PLRB or Board) certifying the Union de Trabajadores de Kaolin, also known as the Kaolin Workers' Union (Union), as the exclusive bargaining representative for certain employees of Kaolin and dismissing Kaolin's post-election objections to the representation election held on May 27, 1993.

Kaolin is a Pennsylvania corporation that is engaged in the production and harvesting of mushrooms, with its principal place of business in Kennett Square, Pennsylvania. Kaolin owns and operates three mushroom farms in the Chester County, Kennett Square area, and a great number of its employees are "migrant farm workers." These employees vary in ethnic background from Hispanic to Vietnamese to Cambodian, and a large percentage of Kaolin's employees are of Hispanic origin and speak only Spanish.

I. FACTUAL AND PROCEDURAL HISTORY

On April 6, 1993, Kaolin filed an unfair labor practice charge with the Board in which it alleged that the Comite de Apoyo a los Trabajadores Agricolas (CATA) *fn1 committed unfair labor practices in violation of Sections 6(2)(a), (b) and (e) of the Pennsylvania Labor Relations Act (PLRA). *fn2 On April 16, 1993, the Board issued a complaint and notice of hearing on the charge and scheduled a hearing for May 21, 1993.

On May 3, 1993, two representatives and members of the Union filed a Petition for Representation with the Board, seeking to represent certain full-time and regular part-time workers employed by Kaolin. On May 11, 1993, the Union also submitted a request filed pursuant to Section 7(c) of the PLRA, 43 P.S. § 211.7(c), that an expedited election occur within twenty days.

On May 21, 1993, the Board ordered and directed that an election by secret ballot occur on Thursday, May 27, 1993. The Board's Order and Notice of Election further provided that the election would be held in three phases: from 4:00 a.m. to 6:30 a.m. at Kaolin's Alpine farm in Landenberg; from 7:15 a.m. to 12:30 p.m. at the utility shed at Kaolin's facility in Kennett Square; and from 3:00 p.m. to 6:00 p.m. in the cafeteria at the Kennett Square facility. The Board's Order and Notice of Election included sample ballots printed in English, Spanish, Vietnamese and Khmer, *fn3 and Kaolin duly produced and posted the order, notice and ballots as required by the Board.

The representation election was conducted on May 27, 1993, by two Board election officials, Theresa McGeehan and Timothy Tietze. Two hundred sixty-three (263) individuals cast ballots in the election, with one hundred twenty-four (124) cast in favor of union representation, one hundred one (101) votes cast for "No Representative," and thirty-eight (38) votes initially challenged and uncounted.

Following the election, the parties entered into a stipulation of facts with respect to PLRB jurisdiction and the challenged ballots. *fn4 Subsequently, on July 6, 1993, the hearing examiner issued an order styled as "Order Determining Appropriateness of Unit and Providing for Canvassing and Counting of Impounded and Certain Challenged Ballots." Pursuant to this order, seven of the thirty-eight challenged ballots were resolved, six of which were cast for the Union and one which was cast for "No Representative."

On July 20, 1993, Kaolin filed and served objections to the election and subsequently filed and served amended post-election objections on July 22, 1993. Before the Board, the objections upon which Kaolin's challenge to the election was based included the following: unremedied unfair labor practices committed by CATA which formed the basis of the charges filed by Kaolin on April 8, 1993; the fact that "Kaolin's observers noticed on several occasions two or more persons occupying the balloting area"; the inefficacy of the Spanish interpreter present during the election; the thirty to forty-five minute delay in the commencement of voting at the Kennett Square facility; *fn5 and the presence of the press around the polling area. (Amended Post-Election Objections; R.R. at 45-64.) Kaolin requested that, on the basis of these objections, the Board set aside the previous election and direct and order a new representation election.

The Board held hearings between August 9, 1993, and June 2, 1994, during the course of which the unfair labor practice charges, filed by Kaolin against CATA on April 6, 1993, were consolidated with Kaolin's post-election objections. The hearing examiner issued a Proposed Decision and Order on April 5, 1995, in which he addressed the unfair labor practice charges filed against CATA and found, inter alia, that CATA had a complete defense pursuant to Section 10 of the Act *fn6 because Kaolin had also engaged in unfair labor practices. *fn7 However, the hearing examiner, although dismissing the majority of Kaolin's post-election objections, sustained Kaolin's objections relating to the inadequacy of the Spanish interpreter present during the election (discussed below) and ultimately concluded that the election should be set aside.

The remaining challenged ballots were opened, canvassed and counted on March 8, 1996, and, on March 12, 1996, the Board issued an Order Directing Remand to Board Representative in which it found as a fact that the final tally of ballots cast in the election was 140 ballots cast in favor of the Union, 102 ballots cast for "No Representative," and one remaining challenged ballot. *fn8 The Board amended the hearing examiner's Proposed Decision and Order by setting forth "amended and additional findings of fact" in its Order Directing Remand to Board Representative and declined to set aside the election, reasoning that Kaolin failed to establish that the alleged improper conduct affected enough votes to have an impact on the outcome of the election.

On March 22, 1996, the Board issued a Nisi Order of Certification in which the Board certified the Union as the exclusive bargaining representative of Kaolin's mushroom laborers. *fn9 On June 11, 1996, the Board issued a Final Order in which it made its prior Nisi Order of Certification final and dismissed Kaolin's post-election exceptions. This appeal ensued. *fn10

On appeal, Kaolin argues that the Board erred as a matter of law by refusing to set aside the representation election and order a new election, and by certifying the Union as the exclusive bargaining representative on the basis of what its contends was a "tainted" election. Specifically, Kaolin argues that the Board should have ordered a new election because the following "procedural irregularities" tarnished the "laboratory conditions" necessary for the employees to express their free and fair choice in the election: (1) because the Spanish interpreter appointed by the Board was so incompetent that she was incapable of communicating election procedures to an electorate that understood virtually no English and was "largely illiterate" in both Spanish and English; (2) because certain voters who lacked identification were improperly disenfranchised of their right to vote in the representation election; (3) because the methods employed by the Board to verify the identity of certain voters created the impression that the secrecy of the election was being compromised; (4) because the Board failed to adequately control the polling areas by permitting electioneering, allowing a member of the press to be in the polling area with a camera for approximately twenty seconds, and, in some instances, permitting two voters to be in a voting booth at the same time, resulting in coercion and further compromising the secrecy of the election; and (5) because the election was tainted by certain unfair labor practices committed by CATA seven to eight weeks prior to the election.

II. ANALYSIS

As an initial matter, we note that Kaolin in its brief places much emphasis on the fact that the hearing examiner ultimately concluded that, "notwithstanding the margin of victory, the provision of an inadequate Spanish interpreter is a serious blow to the laboratory conditions which requires that a new election must be held." (Proposed Decision and Order, 4/5/95, at 100; R.R. at 168.) However, this fact is of little consequence for appellate purposes, because it is the order and findings of the Board, and not those of the hearing examiner, which are subject to appellate review by this Court. See Gioia v. Unemployment Compensation Board of Review, 661 A.2d 34 (Pa. Commw. 1995). As we stated in Xilas v. Pennsylvania Labor Relations Board, 65 Pa. Commw. 18, 441 A.2d 513 (Pa. Commw. 1982):

Section 8(b) of the PLRA, 43 P.S. § 211.8(b), provides that a hearing regarding an unfair labor practice charge be conducted 'before the Board, or any member or designated agent thereof,' and section 8(c), 43 P.S. § 211.8(c) requires that testimony taken at such a hearing be reduced to writing and filed with the Board. Section 8(c) specifically provides that, based upon such testimony, the Board shall determine whether or not an unfair labor practice has been committed and 'shall state its findings of fact.' We believe that this language clearly designates the Board as the ultimate finder of fact with the discretion to evaluate the credibility of the witnesses based upon the testimony in the record. In this regard, the role of the Board as fact finder is similar to that of the Unemployment Compensation Board of Review which is permitted to resolve credibility issues and to make findings without being bound by a referee's Disposition of those matters. See Unemployment Compensation Board of Review v. Wright, 21 Pa. Commw. 637, 347 A.2d 328 (1975). We must, therefore, hold that the Board, not its appointed hearing examiners, has the final authority to determine issues of credibility. . . .

441 A.2d at 515 (emphasis added). Consequently, we cannot give the hearing examiner's decision or findings of fact the weight or import suggested by Kaolin in its brief.

Although Kaolin contends in its brief that the Board's failure to maintain perfect laboratory conditions necessitates a new election, it is a well-settled principle of labor law that the theoretical concept of laboratory conditions must be realistically applied. See, e.g., Amalgamated Service & Allied Industries Joint Board, Amalgamated Clothing & Textile Workers Union v. NLRB, 815 F.2d 225 (2d Cir. 1987). As the United States Court of Appeals for the Second Circuit stated in Amalgamated Service & Allied Industries Joint Board:

Throughout its briefs, the Company emphasizes that if the Board fails to maintain "laboratory conditions" for the conduct of an election . . . the election must be invalidated. The idea of laboratory conditions is a useful guide for measuring the conduct of an election. However, it is probably not possible to completely achieve such ideal conditions, and elections will not automatically be voided whenever they fall short of that standard. Rather, the idea of laboratory conditions must be realistically applied. The Board has broad discretion to determine whether the circumstances of an election come sufficiently close to laboratory conditions so that employees can exercise free choice in deciding whether to select the union as their representative.

Id. at 227 (emphasis added) (citation omitted); see also NLRB v. Duriron Co., 978 F.2d 254, 256 (6th Cir. 1992) ("'Laboratory conditions' are not always achieved in practice, and elections are not automatically voided whenever they fall short of perfection."); NLRB v. Bayliss Trucking Corp., 432 F.2d 1025, 1029 (2d Cir. 1970) ("More than the theoretical possibility of a tainted result must be established before we will overturn the Board's Conclusion that the [procedural] irregularity was harmless.").

Although Pennsylvania case law relating to the applicable standard for setting aside a representation election is rather sparse, such standards are firmly established as a matter of federal law, and we are thus persuaded to apply the same standards:

Representation elections are not to be set aside lightly. . . . The party challenging an election carries a heavy burden: the objecting party must 'show by specific evidence not only that improprieties occurred, but also that they interfered with employees' exercise of free choice to such an extent that they materially affected the election results.'

Millard Processing Services, Inc. v. NLRB, 2 F.3d 258, 261 (8th Cir. 1993) (emphasis added) (citations omitted) (quoting Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 649 F.2d 589, 592 (8th Cir. 1981)), cert. denied, 510 U.S. 1092 (1994); see also Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1343 (9th Cir. 1987) ("As the party challenging the election, [the employer] had the burden of showing by specific evidence at the hearing that 1) improprieties occurred, and 2) that they interfered with the employees' exercise of free choice to such an extent materially to have affected the election results."). Moreover, as the Second Circuit stated in NLRB v. Black Bull Carting, Inc., 29 F.3d 44, 46 (2d Cir. 1994),

A party seeking to overturn an election on the ground of a procedural irregularity has a heavy burden[,] [and] the presence of such an irregularity is not in itself sufficient to overturn an election. . . . Nor is it sufficient for a party to show merely a "possibility" that the election was unfair. . . . Rather, the challenger must come forward with evidence of actual prejudice resulting from the challenged circumstances.

Id. at 46 (citations omitted). Thus, it is clear that an indispensable part of asserting a successful challenge to a representation election is to establish that, but for the alleged objectionable conduct or procedural irregularities, the result of the election would have been different. E.g., NLRB v. Earle Industries, Inc., 999 F.2d 1268, 1272 (8th Cir. 1993) ("The party challenging the outcome of the election bears the heavy burden of 'producing evidence sufficient to mandate a result different from that obtained through the casting of ballots.'" (quoting NLRB v. Krafcor Corp., 712 F.2d 1268, 1269 (8th Cir, 1983)).

A determination of whether the results of a representation election have been materially affected by certain conduct or irregularities, and whether the result would have been different in their absence, necessarily entails a consideration of the totality of the circumstances. However, "the cumulative impact of several incidents 'may not be used to turn a number of insubstantial objections to an election into a serious challenge.'" NLRB v. Lake Holiday Associates, Inc., 930 F.2d 1231, 1238 (7th Cir. 1991) (quoting NLRB v. Browning-Ferris Industries of Louisville, Inc., 803 F.2d 345, 349 (7th Cir. 1986) (internal quotation marks omitted).

It is with these principles in mind that we consider Kaolin's objections to the representation election and order of the Board.

A. The Spanish Interpreter

Kaolin's principal argument on appeal is that the ineptitude of the Spanish interpreter destroyed the requisite laboratory conditions of the representation election to such an extent that it prevented the employees from exercising their free choice in deciding whether to select the Union as their collective bargaining representative.

In its March 12, 1996 order, the Board stated as follows:

With regard to the issue of the Spanish interpreter, the hearing examiner found that the interpreter was unable to meaningfully assist voters who had questions regarding the voting procedure and the ballot. However, as discussed above in sustaining exceptions to these findings, the hearing examiner's findings were based on speculative testimony by Kaolin's election watchers rather than testimony by the employees who were actually doing the voting. Upon review of the record, we find Kaolin only offered testimony by a single employee that he did not understand the nature of his vote. Otherwise, there is no evidence on the record to show that any voter failed to vote or was unable to exercise the right to vote due to problems with translation.

(Board Order, 3/12/96, at 9.) Notwithstanding the fact that the incompetence of the Spanish interpreter is not in dispute, we must conclude that the Board did not abuse its discretion in reaching this Conclusion.

As noted above, the so-called "laboratory conditions" standard is an abstract concept which must be applied in a practical manner; in this respect, it is more of a theoretical objective than a definitive legal standard. See Amalgamated Service & Allied Industries Joint Board, Amalgamated Clothing & Textile Workers. The mere fact that the election conditions were less than ideal is not, by itself, a sufficient basis for setting aside the election results altogether. Duriron Co. The party challenging a representation election must establish a causal relationship that the irregularities materially affected the results of the election, and, in this case, the Board found that Kaolin failed to meet its burden in this regard. We would have to agree.

As the Board observed, Kaolin presented the testimony of a single employee, Jose Tapia, who testified that he did not understand the nature of his vote.

After a review of Mr. Tapia's testimony, however, we question whether this employee's confusion was purely the result of any ineffectiveness on the part of the Spanish interpreter. Indeed, certain aspects of Mr. Tapia's testimony indicate that he would most likely have had difficulty understanding the nature and gravity of his vote even if there had been a competent Spanish interpreter present to ...


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