L & J Equipment Co., Inc.

L & J EQUIPMENT CO. 485 L & J Equipment Company, Inc. and United Mineworkers of America. Case 6-CA-15662 11 February 1986 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 9 February 1983 the National Labor Rela- tions Board issued its Decision and Order in this proceeding, I finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the certified exclusive bargaining representative of a unit of the Respond- ent's employees. Upon application for enforcement of the Board's Order, the United States Court of Appeals for the Third Circuit denied enforcement and remanded the case to the Board for further consideration consistent with its opinion.2 The Board thereafter ,accepted the court's remand and notified the parties that they could file statements of position with the Board on remand. The Union filed a statement of position and a motion to reopen the record. The Respondent filed a statement of position, a "motion to strike pleadings," and an op- position to the Union's motion to reopen the record. 3 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. In its original decision, the Board granted the General Counsel's Motion for Summary Judgment which was based on the Respondent's admitted re- fusal to bargain with the Union as the exclusive bargaining representative of its production and maintenance employees for the purpose of contest- ing the Board's certification of the Union. In the underlying representation case (Case 6-RC-9124), the Respondent filed objections to conduct affect- ing the results of an election conducted on 4 No- vember 1981, in which a majority of its employees voted for union represention. The objections al- leged, inter alia, that union threats, together with various third-party acts, created an atmosphere of m 266 NLRB No. 29 (Feb. 9, 1983) (not reported in Board volumes). a NLRB v. L & J Equipment Co., 745 F.2d 224 (3d Cir. 1984). s The Union moved to reopen the record to present evidence regard- ing the circumstances of a fire in which one of the Respondent's trucks was burned shortly before the petition in the underlying representation case was filed. In its motion the Union contends that the evidence it seeks to present is newly discovered There is no showing, however , that the evidence, which relates to an event that occurred nearly 4 years before the filing of the Union's motion , could not have been discovered earlier through the exercise of due diligence. Accordingly, the Union's motion to reopen the record is denied. See Nabco Corp., 266 NLRB 687 (1983). In view of our denial of the Union's motion, we also deny the Respond- ent's motion to strike pleadings , in which it moved to strike the Union's motion to reopen the record. fear and coercion precluding a fair election, and that the Union engaged in improper electioneering. A hearing officer found these objections to be without merit. The Acting Regional Director adopted the hearing officer's findings and certified the Union.4 The Board subsequently denied the Respondent's request for review of the Acting Re- gional Director's decision. More specifically, the hearing officer based his conclusion that the above objections lacked merit partly on his finding that the employee who served as chairman of the Union's "in house organizing committee" (IHOC) and another employee member of the committee were not agents of the Union with respect to their actions during the election campaign. The hearing officer found that the ap- proximately five IHOC members were selected in- formally by employees attending a union meeting in August 1981 at the beginning of the campaign. Employee Keith Powley was selected chairman be- cause his job ' duties permitted him to visit the Re- spondent's various, geographically dispersed coal mining sites where voting unit employees worked. The hearing officer found that the function of the IHOC members was to relay messages regarding the Union and the campaign from the Union's paid official organizers to other employees. The hearing officer further found that Powley had no additional duties, except that the organizers usually relayed messages first to him, and he relayed them to other IHOC members who, in turn, relayed them to other employees. He also found that some employ- ees went to Powley with questions about the Union, but that they did so because Powley ap- peared to be knowledgeable, rather than because they viewed him as representing the Union. The hearing officer also noted that while IHOC mem- bers solicited employees to sign union cards, the organizers and employees who were not IHOC members also did so. He found further that the paid organizers had frequent contacts with employ- ees, visiting most of the Respondent's six coal mining sites at least weekly, making themselves available in the evenings to talk informally with employees, and conducting general employee meet- ings. Relying, inter alia, on Cambridge Wire Cloth Co., 256 NLRB 1135 (1981), enfd. mem..679 F.2d 885 (4th Cir. 1982); Liberty House Nursing Home, 236 NLRB 456 (1978); and Firestone Steel Products Co., 235 NLRB 548 (1978), the hearing officer con- cluded that the IHOC members, including Powley, were not agents of the Union. 4 The Respondent also filed other objections which the Acting Region- al Director found lacked merit. The sole issues before us pursuant to the court's remand concern the objections alleging threats and coercion and improper electioneering. 278 NLRB No. 74 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The allegation that a combination of threats by union agents and third-party conduct interfered with the employees' free choice in the election was based partly on certain statements Powley made concerning possible picket line misconduct. Find- ing that Powley was not a union agent, and finding no misconduct on the part of other union agents, the hearing officer treated all acts and statements alleged to have contributed to an atmosphere of fear and coercion as third-party conduct. The hearing officer found that in early August 1981, shortly after the campaign began and before the election petition was filed, a company-owned pickup truck was totally destroyed by fire while parked in the driveway of Mikalik, an employee perceived by other employees as a favorite of man- agement. The word scab" was painted on the tail- gate of the destroyed truck. The hearing officer found that the fire was deliberately set by an un- known person, or unknown persons, who viewed Mikalik as antiunion. The hearing officer also found that in October, after the petition was filed, a man whose name Mikalik did not know ap- proached him in a bar, identified himself as a com- mitteeman from another mine, spoke of the benefits of the Union, stated that Mikalik's name had come up in a meeting that the speaker had attended, and concluded by saying something to the effect that Mikalik "should take care of number one." Mikalik reported this conversation to Powley, complaining that the man in the bar had, pressured him about the Union. The hearing officer found that Powley replied to the effect that if Mikalik signed a union card, Powley would spread word of it, and this might "get these guys off ' [Mikalik's] back." Mika- lik then signed a card. The hearing officer addition- ally found that employee Arbogast spread a rumor that someone had threatened to break his legs if Arbogast crossed a picket line, but that there was no credible evidence that such a threat was made. The hearing officer found further that when Arbo- gast told Powley about the alleged threat, Powley replied that he did not believe anyone in the Union would make such a threat, adding, however, that he hoped Arbogast would have sense enough not to cross a picket line, and that considering the men who would be on the line, "why take a chance on it?" The hearing officer also found that about 3 weeks before the election Po}vley told Mikalik that if a picket line were established, employees who wanted to cross would be permitted to do so once or twice, but after that it would be "shame on them" and someone would call in a "radical bunch" from another mine.5 The hearing officer 6 Regarding, threats of picket line violence, the hearing officer also found that union officials told employees that any picket line would have found that in another conversation among several employees, including Martin, who piloted the Company's helicopter, someone said that if there were a picket line, even the helicopter would not be permitted to cross." The hearing officer found that later someone, perhaps Powley, told Martin that no one would interfere with the helicopter. About a week to 10 days before the election, a company-owned barn burned down. The hearing officer concluded that it could not be determined whether the fire was intentional and, if intentional, whether it related to the campaign. Finally, the hearing officer found that a few days before the election a nonemployee relative of Powley's called Mikalik at home, asked Mikalik how he intended to vote, listed some advantages of the Union, and concluded by advising Mikalik to watch himself. The hearing officer concluded that while the fires were serious, the various incidents of miscon- duct, including the fires, considered separately and together, were not sufficiently egregious to create an atmosphere of fear and coercion interferingwith the employees' election choice. The hearing officer noted, among other things, that the truck fire oc- curred outside the "critical period," citing Ideal Electric & Mfg. Co., 134 NLRB 1275 (1961).7 He nevertheless considered the possible coercive impact of the truck fire on the voters, but found that because it occurred 3 months before the elec- tion, its coercive effect on employees would have dissipated by the time they voted. Regarding the electioneering objection, the hear- ing officer found that during the voting session at one of the Respondent's facilities employee Zeigler, an IHOC member, after casting his ballot, spoke for 10 to 15 minutes with employees waiting in line to vote. There was no evidence as to the content of these conversations. Finding that Zeigler's IHOC membership alone did not render him a union agent, the hearing officer concluded that there was no violation of the Milchem rule," and recommended overruling the objection. As noted above, the Acting Regional Director adopted the hearing officer' s recommendations. Without elaborating, he agreed with the hearing of- to be peaceful, and people who wanted to cross would be permitted to do so He found further that there was no evidence that union officials were aware of any threats of picket line violence made by Powley. 6 It is clear from the record that Powley was among the employees present during this conversation. 4 In Ideal Electric, the, Board established the rule that it will consider only conduct which occurs after the filing of a petition as a postelection objection 8 See Milchem, Inc., 170 NLRB 362 (1968), in which the Board estab- lished the rule that prolonged conversations between representatives of any party to an election and employees waiting in line to vote constitutes objectionable conduct, warranting the setting aside of an election, irre- spective of the content of the conversations. L & J EQUIPMENT CO. 487 ficer that the record did not show that either Powley or Zeigler was an agent of the Union. In agreeing with the hearing officer's conclusion that the various statements and incidents which preced- ed the election did not create an atmosphere of co- ercion interfering with the employees' free choice in the election, the Acting Regional Director stated, inter alia, that the truck fire was remote in time from the election, that it could not be attrib- uted to the Union, and that it occurred outside the critical period.9 As noted above, the Board, in L & J Equipment Co., 266 NLRB No. 29 (Feb. 9, 1983), upheld the validity of the certification and ordered the Re- spondent to bargain with the Union. In denying-en- forcement to the Board's Order, the court found that the Board applied an improper standard in de- termining that the employee members of the in- house organizing committee were not union agents, and improperly applied the Ideal Electric rule in discounting the significance of a substantial act of violence, the truck fire. The court found that these errors may have affected the Board's resolution of the issues, and remanded the case for the Board to reconsider them under the legal standards set by the court. We accept the court's opinion as the law of the case. Regarding the agency issue, the court reject- ed the Board's previous approach and set forth the following four-part test for determining whether an IHOC member is a union agent with respect to particular conduct:' 0 1. The IHOC as a whole must possess actual or apparent authority to act on behalf of the union in assisting the union in the organiza- tional drive or election campaign; 2. The individual member of the IHOC whose conduct is at issue must be sufficiently active in the IHOC that he or she had actual or apparent authority to act on behalf of the IHOC; 3. The acts of the IHOC member must fall within the scope of his or her role as a member of the IHOC; 9 The Acting Regional Director also found that the statements to em- ployee Mikahk by nonemployees had little coercive effect and were not widely disseminated; that the statements about picket line violence were speculative in that they referred to a possible strike at some future time; and that the barn fire was not shown to have been related to the cam- paign In finding that statements about possible future picket line miscon- duct did not tarot the election, both the hearing officer and the Acting Regional Director cited Hickory Springs Mfg. Co, 239 NLRB 641 (1978). We note that in Home & Industrial Disposal Service, 266 NLRB 100 (1983), the Board overruled Hickory Springs. Because of our disposition of the instant case, it is unnecessary for us to decide whether the refer- ences to possible picket line misconduct which Powley made, standing alone, would be grounds for setting aside the election under Home & In- dustnal Disposal 10 745 F 2d at 234. 4. The union must not have taken adequate steps to repudiate acts which, although un- authorized, fall within the apparent author- ity of IHOC members. With respect to the third criterion, the court added that a union may be held accountable for un- authorized acts of an IHOC member if the acts would be generally regarded by reasonable third parties as connected with the election campaign and within the authority conferred by the union on the member.11 Examining the evidence in light of this, the court made the, following observations: (1) the Union as- sisted in forming the IHOC, provided it with in- structions regarding the organizing campaign, and entrusted it with organizing duties at jobsites which its professional organizers could not handle alone due to the geographical dispersion of the sites; (2) Powley, as chairman, was authorized to act on behalf of the IHOC, had a major role in the cam- paign, and was widely viewed by employees as acting on the Union's behalf; (3) Powley's state- ments regarding possible picket line violence "fell within the ambit of his role as IHOC chairman"; and (4) the Union apparently did not repudiate Powley's comments concerning violence.12 In view of these observations by the court, and apply- ing its agency test as the law of the case, we fmd that Powley's references to possible future miscon- duct on a picket line were attributable to the Union. Similarly, we fmd attributable to the Union Powley's statement to Mikalik to the effect that if Mikalik signed a card the pressures on him might cease. The court made no specific observations regard- ing application of the four-part test to the question, of Zeigler's union agency. The court indicated that if, under its test, Zeigler was not acting as a union agent at the polls on election day, his conduct would not require setting aside the election, but that if. he was acting as a union agent, a violation of the Milehem rule would be established. The record is barren of any evidence that Zeigler was an active IHOC member, or that the employees in general were even aware of his membership. There is some evidence that employees did not know who, other than Powley, was on the IHOC. There is also evidence that as the campaign progressed, whatever separate identity the IHOC initially had became blurred as more employees, who were not IHOC members, became active in the campaign. Further, there is no evidence that Zeigler's activi- ties near the polls on the day of the election were I' Id at fn. 14. 12 Id. at 238 fn. 24. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pursuant to any instructions from the Union or the IHOC. Accordingly, we find that the requirements of the second and third prongs of the court's test have not been met with respect to Zeigler and con- clude, therefore, that his conduct in holding con- versations with employees waiting in line to vote on the day of the election was not attributable to the Union. With regard to incidents of misconduct which were not attributable to the Union , as noted above, the court held that the Board had applied its Ideal Electric rule improperly, discounting the signifi- cance of the coercive impact of the truck fire. Spe- cifically, the court found that although the hearing officer had considered the coercive impact on the voters, the Acting Regional Director may have ap- plied the Ideal Electric rule more strictly and, ap- parently, the court found, discounted the incident completely because it occurred before the petition was filed. The court held that the Ideal Electric rule "should be applied as a rule of thumb and con- venience, and not used to exclude important evi- dence needed to evaluate misconduct ." 13 The court concluded that the truck fire should have been given great weight in evaluating the election objections and observed that the truck fire was not remote from the election campaign, but closely linked with it; that it indicated willingness on the part of union adherents to use violence; that memo- ries of it would not have disappeared by the time of the election; and that, particularly in view of the closeness of the vote, the court was unable to con- clude that it had no effect on the outcome of the election. The court further held that upon recon- sideration of this case the Board must consider the events subsequent to the truck fire, including Pow- ley's statements about violence, in light of the 18 Id. at 237. arson, evaluating the likelihood that the subsequent events perpetuated uneasiness that it caused. In view of our finding that under the test set forth by the court Powley was a union agent with respect to his campaign statements, we must con- sider, under the terms of the remand , the cumula- tive effect of this union conduct and the various in- cidents not attributable to the Union , including the prepetition truck fire. With the issue thus framed, and applying the court's opinion as the law of the case, we conclude that Powley's statements about possible picket line misconduct, Powley's sugges- tion that Mikalik sign, a union card to reduce union-related pressure on Mikalik, and the various other conduct, not attributable to the Union, which the hearing officer found occurred-especially the truck fire-combined to create a coercive atmos- phere interfering with the employees' free choice in the election and rendering the election results in- valid. Accordingly, we shall vacate our earlier De- cision and Order in this case (266 NLRB No. 29), dismiss the complaint, reopen the underlying repre- sentation case (Case 6-RC-9124), revoke the certi- fication, and remand that case to the Regional Di- rector for Region 6 for appropriate action consist- ent with this decision, including the direction of a new election if the Union wishes to proceed to a new election. ORDER The National Labor Relations Board orders that the original decision in this case (266 NLRB No. 29) is vacated and that the complaint is dismissed. IT IS FURTHER ORDERED that Case 6-RC-9124 is reopened, the certification issued in that case is re- voked, and that Case 6-RC-9124 is remanded to the Regional Director for Region 6 for appropriate action consistent with this decision, including the direction of a new election if desired by the Union.