Randell Warehouse of Arizona, Inc. v. National Labor Relations Board
Randell Warehouse of Arizona, Inc. v. National Labor Relations Board
Opinion of the Court
Opinion for the court filed by Circuit Judge HENDERSON.
Randell Warehouse of Arizona, Inc. (Randell) petitions for review of an order of the National Labor Relations Board (NLRB or Board) directing it to bargain with the Sheet Metal Workers International Association, Local #359, AFL-CIO (Union). The NLRB cross-petitions for enforcement. For the reasons stated below, we grant the petition for review and remand to the Board for further proceedings.
I.
The facts before us are straightforward. After the Union won a representation election, Randell filed with the Board several objections to the election. Randell contended inter alia (1) that numerous acts of intimidation created an atmosphere of coercion that reasonably tended to interfere with the free and uncoerced choice of the employees and (2) that other acts of interference by Union adherents and agents affected the result of the election. See Randell Warehouse of Ariz., Inc., 328 N.L.R.B. No. 153 app. at 19-20, 1999 WL 554239, at *30 (July 27, 1999). The Regional Director ordered a hearing to consider Randell’s objections. See id. at 19, 1999 WL 554239, at *29. Following a two-day hearing, an NLRB Hearing Officer made several findings of fact and recommendations regarding the relevant issues.
As to Randell’s first objection, the Hearing Officer found that a Randell employee and Union supporter, Ray Encinas, made certain objectionable comments in two employee meetings held by Randell to discuss unionization. In the first meeting, when one employee inquired what would happen to someone who crossed the picket line during a strike, Encinas commented in Spanish that “ ‘they would bring somebody from down below to take care of those people.’ ” Id. at 21, 1999 WL 554239, at *33. In a second meeting, when another employee asked what would happen to those who did not want to become union members if the Union won the election, Encinas volunteered, again in Spanish, “‘they would have the Chico Mafia take care of those people.’ ” Id. Furthermore, on another occasion, one employee who was wearing a “Vote No” button was told by a lead worker “there is people here that beat up people that wear that.”
Regarding the second objection, the Hearing Officer found that, before the election, as Union representatives distributed Union literature in front of Randell’s building, another Union representative photographed the employees as they accepted or rejected the literature. See id. Moreover, the photographer took pictures of some employees’ vehicles as well. When one employee asked about the purpose of the photographs, one of the Union representatives responded “It’s for the Union purpose, showing transactions that are taking place. The Union could see us handing flyers and how the Union is being run.” Id., 1999 WL 554239, at *35.
The Hearing Officer concluded the Union’s conduct was in violation of Pepsi-Cola Bottling Co. of Los Angeles, 289 N.L.R.B. 736, 1988 WL 213816 (1988) (holding that, absent explanation or justification, photographing employees while they engage in protected activity violates National Labor Relations Act (NLRA)). See id. He therefore recommended that Randell’s objection based on Union photographing be sustained and a new election be held.
Randell filed exceptions to the Hearing Officer’s recommendations. Of relevance here, Randell argued that threats and intimidation by Union supporters destroyed the “laboratory conditions”
The Board adopted all but one of the Hearing Officer’s recommendations. It rejected the Hearing Officer’s conclusion about the Pepsi-Cola Bottling violation, opting instead to overrule Pepsi-Cola Bottling. See Randell, 328 N.L.R.B. No. 153, at 3,1999 WL 554239, at *4. In light of its decision, the Board certified the Union as the collective bargaining representative of the appropriate bargaining unit of Randell employees. See id. at 5, 1999 WL 554239, at *7.
Randell refused to bargain with the Union, prompting the Union to file an unfair labor practice charge. The NLRB General Counsel issued a complaint and Randell answered. In its answer, Randell raised two defenses: the election was tainted by an atmosphere of coercion and intimidation which prevented the employees from exercising their rights freely and the Board erroneously applied its new photographing rule retroactively. The General Counsel, on the other hand, sought summary judgment reasoning that Randell’s objections could have been raised or had already been rejected in the representation proceedings. The Board agreed with the General Counsel, found Randell in violation of section 8(a)(5) and (1) of the NLRA and ordered Randell to bargain with the Union. See Randell Warehouse of Ariz., Inc., 330 N.L.R.B. No. 135, at 2, 2000 WL 345407, at *2-3 (Mar. 20, 2000). This appeal followed.
II.
“On questions regarding representation, we accord the Board an espe-
In Pepsi-Cola Bottling, the Board found objectionable a union’s videotaping of employees being handed union leaflets as they left the employer’s premises during a union rally. 289 N.L.R.B. 736. Because the employees received no legitimate explanation for the videotaping, the Board concluded the employees could reasonably believe the Union was contemplating some future reprisals against them and set aside the election as interfering with the employees’ right to choose their representatives freely. See id.
The Board set aside a representation election in Mike Yurosek & Son, Inc. as well. 292 N.L.R.B. 1074, 1989 WL 223861 (1989). There a union representative took photographs of campaign activity by pro-union and anti-union employees. The representative also told an anti-union activist ‘We’ve got it on film; we know who you guys are ... after the Union wins the election some of you may not be here.” Id. Relying on Pepsi-Cola Bottling, the Board again found interference with the employees’ rights under the NLRA and ordered a new election.
Here the Board, in a volte face, determined that union photographing of employees engaged in protected activities during an election campaign, without more, does not necessarily interfere with employee free choice. See Randell, 328 N.L.R.B. No. 153, at 3, 1999 WL 554239, at *4. At the same time the Board overruled Pepsi-Cola Bottling, it nonetheless declined to overrule Mike Yurosek, reasoning that photographing accompanied by threats or coercive conduct does interfere with employee free choice. See id., 1999 WL 554239, at *5. Applying its newly announced rule to the facts before it, the Board found no objectionable conduct. See id. at 5,1999 WL 554239, at *7.
Randell argues the Board erred by failing to consider the applicability of Mike Yurosek here. We agree.
For the reasons stated above, we grant Randell’s petition for review and remand to the Board for further proceedings consistent with this opinion.
So ordered.
. At the hearing, a pro-company employee testified that, while he was wearing a "Vote No” button, two Union supporters told him to "take [it] off” unless he was "looking for trouble.” Deferred Appendix (D.A.) 320. The employee also testified that, later the same day, when driving home, he was boxed in by the two Union supporters and almost driven off the road. D.A. 321-25. The Hearing Officer discredited this testimony, concluding that the two pro-Union employees "both credibly denied the account of the incident as testified to by [the pro-company employee]” and "two other credible witnesses” corroborated the pro-Union employees’ account of the event. Randell, 328 N.L.R.B. No. 153 app. at 21, 1999 WL 554239, at *33. The Hearing Officer did note, however, that rumors about the incident spread throughout the plant and that a leadman told the pro-company employee to “ 'be careful’ ” because " ‘they are crazy.' ” Id. at 21, 1999 WL 554239, at *33 (quoting D.A. 328).
. General Shoe Corp., 77 N.L.R.B. 124, 127, 1948 WL 8168 (1948) (holding that representation election should be held in "laboratory ... conditions as nearly ideal as possible, to determine the uninhibited desires of the employees”).
. Randell also contends the Board erred in overruling the per se rule of Pepsi-Cola Bottling and in retroactively applying the new rule to this case. Because we remand to the Board on another basis, we need not reach these objections.
Reference
- Full Case Name
- RANDELL WAREHOUSE OF ARIZONA, INC. v. NATIONAL LABOR RELATIONS BOARD, Sheet Metal Workers International Association, Local 359, AFL-CIO, Intervenor
- Cited By
- 8 cases
- Status
- Published