L & J Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1986

278 N.L.R.B. 485 (N.L.R.B. 1986)

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.